Debate Club

Department of Justice 'White Paper' Full of Contradictions

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Protecting the U.S. from terrorist attacks is critical but so too is the rule of law

President Obama has repeatedly confirmed that taking the lives of Americans—even those affiliated with terrorist organizations—is subject to constitutional due process protections. The recent white paper justifying drone strikes against U.S. citizens is therefore a troubling contradiction.

First, the paper provides few objective limits on the government's ability to use drones against purported al Qaeda members—even U.S. citizens—other than requiring an "imminent" threat. Yet the government need not provide "clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future." Without proof of truly imminent danger, this nominal check on unfettered executive authority becomes baseless.

[Check out our editorial cartoons on President Obama.]

Second, the paper stresses that an individual involved in recent threatening activities remains an imminent threat if "there is no evidence suggesting he has renounced or abandoned such activities." Suddenly, a lack of evidence becomes evidence in a disturbing example of guilty until proven innocent.

Third, the paper problematically uses two Supreme Court cases—Hamdi and Hamden—to help argue that a U.S. citizen abroad can be killed if deemed an al Qaeda leader or "associated force." However, only Hamdi concerned the rights of a U.S. citizen, and it did not address the right to take a citizen's life. Instead, the court found citizen-detainees have the right to bring habeas claims to challenge their detainment before a neutral authority. And in Hamdan, the Supreme Court held that military commissions (as then constituted) were insufficient alternatives to federal trials because they violated the Geneva Conventions' Common Article 3 and the Uniform Code of Military Justice. Both cases affirm the importance of meaningful due process and external oversight.

[See a collection of political cartoons on Congress.]

Our detainee-related experiences also offer precedent of a very different sort. When so many Guantanamo detainees—once declared the very "worst" terrorists by our executive branch—have subsequently been found to not be a risk, why should we be willing to trust that branch to make unchecked culpability determinations, especially when the stakes are higher?

Protecting the United States from terrorist attacks is critical but so too is the rule of law, which safeguards our democratic rights and freedoms. Even President Obama has noted the potential for a slippery slope when using lethal force against U.S. citizens. When the means for checking decision-making powers are ill-defined, when there is little to no external oversight, and when full and transparent debate has yet to occur, that slippery slope proves perilously steep.

Alexa Koenig

About Alexa Koenig Executive Director of University of California-Berkeley's Human Rights Center.

Tags
drones
Obama, Barack
terrorism
Supreme Court
national security

Other Arguments

#1
70 Pts
Brennan and Obama's Drone Playbook Must Be Debated Publicly

Yes – Brennan and Obama's Drone Playbook Must Be Debated Publicly

Dixon Osburn Director of Human Rights First’s Law and Security Program

#2
30 Pts
Obama's Drone Policy Has No Safeguards Against Abuse

Yes – Obama's Drone Policy Has No Safeguards Against Abuse

Rosa Brooks Fellow at the New America Foundation

#5
-14 Pts
Obama's Drone Problem Is Its Convoluted Semantics

No – Obama's Drone Problem Is Its Convoluted Semantics

William F. Daddio Professor at Georgetown University

#6
-15 Pts
Obama's Drone Policy Is Necessary to Keep the U.S. Safe

No – Obama's Drone Policy Is Necessary to Keep the U.S. Safe

Daniel J. Gallington Senior Policy and Program Adviser at the George C. Marshall Institute i

#7
-16 Pts
The Alternatives to Drone Strikes Are Worse

No – The Alternatives to Drone Strikes Are Worse

James Lewis Director of the Technology and Public Policy Program at the Center for Strategic and International Studies

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