March 2010: The dubious legality of targeting American jihadists, health care and history, and other observations

A tip of the cap to the late, great New York newspaper columnist Jimmy Cannon for borrowing his signature phrase: nobody asked me, but…

THE OBAMA ADMINISTRATION HAS AUTHORIZED THE TARGETED KILLING OF AN AMERICAN CITIZEN, the Muslim radical Anwar al-Awlaki (who was born in New Mexico), according to credible news reports (Los Angeles Times, Reuters), including one by Scott Shane in the New York Times buried at the bottom of page A12. This is a disturbing development, to say the least, and raises a number of troubling questions:

  • How does this decision, made in secret, conform to the rule of law? What is the legal framework for approving the killing of an American citizen? What of al-Awlaki’s due process civil rights as an American?
  • Has an arrest warrant for al-Awlaki been procured? Has he been indicted? Has the U.S. formally requested al-Awlaki’s extradition from Yemen, where he is believed to be hiding?
  • What is al-Awlaki’s legal status? Has he been designated an enemy combatant? Who made that decision and was there judicial review of it?
  • Who made the final decision to add al-Awlaki’s name to the targeted killing list? On what grounds? What evidence exists? Did President Obama formally approve this action?

If the rule of law means anything in the U.S., we should know the answers to all of these questions. The targeting of a U.S. citizen is apparently unprecedented. In the Times article Shane quotes a former senior legal official in Bush Administration who “said he did not know of any American who was approved for targeted killing under the former president.” It may be that al-Awlaki has become an operational Al Qaeda leader, as government sources suggest, but that shouldn’t automatically trump his legal rights. How can Eric Holder, the Attorney General, allow an American citizen to be, in effect, sentenced to death without a jury trial, etc.?

An Obama appointee, State Department legal advisor Harold Koh, who had been highly critical of the Bush Administration’s tactics in the war on terror tactics, is now defending the practice of targeted killing. In a speech to the American Society of International Law, Koh rejected the notion that the U.S. was involved in unlawful extrajudicial killings and offered a justification for ignoring due process when going after what he called “high-level belligerent leaders”:

“…a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise.

Despite some verbal pandering to the international law community (“…global leadership flows to those who live their values and obey the law and global standards”), Koh has nonetheless embraced the same expansive legal position advanced by the Bush Administration: there is a “global war on terror” and the U.S. has the widest latitude in how it pursues jihadists. The Obama Administration appears to have expanded this legal doctrine to allow the secret designation of American citizens as enemy combatants.

President Obama’s campaign promises included a pledge of transparency and a restored respect for international law. In the case of the U.S. drone program and other targeting killings, those promises have not been kept.

BACK HOSTING THE “TONIGHT SHOW,” JAY LENO OFFERED UP THIS ZINGER: “Former President Bush is writing a book about how he made decisions in the White House. The book has two chapters: heads and tails.”

HAD BUTLER UNIVERSITY’S GORDON HAYWARD MADE A LAST-SECOND SHOT TO UPSET DUKE in the NCAA national championship game it would, indeed, have been the greatest college basketball game, as the Boston Globe‘s Bob Ryan maintained (if not the greatest game ever). But he didn’t, and Duke prevailed, 61-59, in what will still be remembered as a sensational title game.

CHARLES PELLEGRINO, AUTHOR OF THE LAST TRAIN FROM HIROSHIMA, LOST ALL CREDIBILITY in March when it surfaced that his book relied on fraudulent sources and that Pellegrino did not have the doctorate he claimed to have earned. Henry Holt & Company recalled the book and offered refunds to retailers and wholesalers. Prior to the recall, World War II veterans involved in the atomic bombing of Japan had attacked the veracity of Pellegrino’s account on several fronts, including his claim that Col. Paul W. Tibbets, the lead pilot, had expressed remorse over Hiroshima and Nagasaki. The Pellegrino episode is reminiscent of the controversy over Michael Bellesiles’ discredited research for Arming America, a history that claimed gun ownership was not as prevalent as believed in colonial times.

WHAT WILL BE THE HISTORICAL SIGNIFICANCE OF THE PASSAGE OF OBAMACARE? At the White House ceremony where he signed health insurance reform into law, President Obama argued that opponents of the measure were on the wrong side of history. There is no question that establishing mandated near-universal health care represents an accomplishment of historical significance–but unlike other entitlement expansions (Medicare, Medicaid, etc.), the new healthcare program did not gain bipartisan support.

Will ObamaCare survive the 2010 congressional mid-terms and the 2012 presidential election? Will its dramatic expansion of federal power be scaled back? What will be the consequences of the ill will and polarization the process has engendered?

SINGER GARY ALLAN’S “KISS ME WHEN I’M DOWN” PROVES ONCE AGAIN THAT WITTY SONG TITLES ABOUND IN COUNTRY MUSIC. The tune is on Allan’s 2009 release, “Get off on the Pain,” an album which Bill Friskics-Warren of the Washington Post called “terrific.”

NOVELIST PHILIP KERR’S LATEST THRILLER, IF THE DEAD RISE NOT, is the sixth to feature Bernie Gunther, a German detective (of sorts) whose adventures in Nazi Germany, Soviet Russia, and elsewhere touch on much of mid-20th century history. The book is another page-turner from Kerr that entertains while it educates.

MY FAVORITE TELEVISION PROGRAM AS A CHILD WAS “DANIEL BOONE,” and I was pleasantly surprised when, later in life, I met Fess Parker, the lead actor in the show, and found him to be a warm, engaging man who mixed folksiness with graciousness. Fess Parker died March 18 at the age of 85, a fixture in his adopted community of Santa Barbara, where he had developed a waterfront hotel and established an award-winning vineyard. RIP.

THIS MONTH’S WORDS OF WISDOM COME FROM FRENCH THEOLOGIAN AND SCIENTIST PIERRE TEILHARD DE CHARDIN (1881-1955): “It doesn’t matter if the water is cold or warm if you’re going to have to wade through it anyway.”

Copyright © 2010 Jefferson Flanders
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