Oct. 17 (Bloomberg) — Killing terrorists with drones is great politics. To the question, “Is it legal?” a natural answer might well be, “Who cares?”
But the legal justifications in the war on terrorism do matter — and not just to people who care about civil liberties. They end up structuring policy. As it turns out, targeted killing, now the hallmark of the Barack Obama administration’s war on terrorism, has its roots in rejection of the legal justifications once offered for waterboarding prisoners.
The leaking of the basic content (but not the text) of an Obama administration memo authorizing the drone strike that killed U.S. citizen Anwar Al-Awlaki therefore calls for serious reflection about where the war on terrorists has been — and where it is headed next.
The George W. Bush administration’s signature anti-terror policy after the Sept. 11 attacks (apart from invading countries) was to capture suspected terrorists, detain them, and question them aggressively in the hopes of gaining actionable intelligence to prevent more attacks.
In the Bush years, after the CIA and other agencies balked at the interrogation techniques being urged by Vice President Dick Cheney, the White House asked the Department of Justice to explain why the most aggressive questioning tactics were legal. Lawyers at the Office of Legal Counsel — especially John Yoo, now a professor at the University of California at Berkeley — produced secret memos arguing that waterboarding wasn’t torture.