On May 29, 2009, President Obama gave a speech at the National Archives in which he said the following:
Now let me be clear: We are indeed at war with al Qaeda and its affiliates. We do need to update our institutions to deal with this threat. But we must do so with an abiding confidence in the rule of law and due process; in checks and balances and accountability. For reasons that I will explain, the decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable — a framework that failed to rely on our legal traditions and time-tested institutions, and that failed to use our values as a compass.
The president went on to trumpet the fact that he banned the use of enhanced interrogation techniques, saying, “I know some have argued that brutal methods like waterboarding were necessary to keep us safe. I could not disagree more.” Mr. Obama argued that (among other things) they undermine the rule of law. And during the 2008 campaign and shortly thereafter, Obama insisted that his policies would “regain America’s moral stature in the world.” This was a common Obama theme: He would act in ways that respect international law and human rights and remove the stain from America’s reputation.
I thought of all of this in light of this report by NBC’s Michael Isikoff. Thanks to Isikoff, we’ve learned that “a confidential Justice Department memo concludes that the U.S. government can order the killing of American citizens if they are believed to be ‘senior operational leaders’ of al-Qaida or ‘an associated force’ even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.”
According to the memo, “The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”
In addition, it states an “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.” But as Isikoff point out, the memo does not define “recently” or “activities.”
You can be excused if you’ve (a) missed Mr. Obama’s much-heralded due process element in all of this and (b) have a hard time reconciling Mr. Obama’s presidents-should-not-have-blanket-authority-to-do-whatever-they-wish-lectures (see the National Archives speech for more) with his Justice Department’s expansive executive powers memo.
So what do you think Senator Barack Obama would have said if President George W. Bush had pursued these policies? And how do you think the press and the political class would have reacted?
Let me suggest as well that a man who feels wholly at ease with drone strikes that have killed American citizens suspected of engaging in terrorist activities without the benefit of a trial and which have, in the process, killed hundreds of innocent people should be a tad bit more careful when it comes to lecturing about the immorality of enhanced interrogation techniques (EITs). Joe Scarborough, for example, argued that what Bush did with EITs is “child’s play” compared to what Obama has done.
To put things in a slightly different way: During the 2008 campaign and much of the early part of his presidency, Barack Obama obsessively argued that waterboarding all of three individuals–September 11 mastermind Khalid Sheikh Mohammed and senior al-Qaeda leaders Abu Zubaydah and Abd al-Rahim al-Nashiri–was a violation of human rights and a grave moral offense. Here’s the thing, though: unlike Mr. Obama’s drone strikes, no American citizens, no terrorists and no innocent children have died due to waterboarding. Yet the president’s press spokesman is defending Mr. Obama’s policies as “legal,” “ethical,” and “wise.”
Which leads me to two conclusions. The first is that it’s not always easy to navigate the murky waters of law, morality, and war and terrorism, at least when you’re in the White House and have an obligation to protect the country from massive harm. (After they were revealed, I had several long conversations with White House colleagues trying to sort through the morality of waterboarding and indefinite detention.)
The second is that it is true that there is a serious argument to be made that during wartime targeting terrorists, including Americans, with drones is justified. But that justification probably best not come from someone who has spent much of the last half-dozen years or so sermonizing against waterboarding, accusing those who approved such policies of trashing American ideals and shredding our civil liberties, and portraying himself as pure as the new-driven snow. Because any person who did so would be vulnerable to the charge of moral preening and moral hypocrisy.