irreconcilable loyalties (6) Awlaki and Obama (2)

The last two weeks brought a strong reminder of  the "drone program" that has become the most important anti-terrorist (=Al Qaeda) weapon.  The question of American citizenship and death without due process raised by the killing of Al Awlaki and even more so by that of his innocent 16 year old son, was raised repeatedly in the Senate confirmation hearing of John Brennan as Director of the CIA by both Republicans and Democrats, including Senator Rockefeller, a former head of the Committee. Brennan presented the Administrations argument that since Al Qaeda is at war with us, any American who joins A-Q surrenders the protections guaranteed American citizens.

Because the son was also killed that position was not accepted, but also in the mind of some Senators was the constitutional separation of powers and Senator King stated his doubts about the president acting as prosecutor, judge and jury and executor. There emerged a consensus that drone strikes ought to be reviewed beforehand by a secret anti-terrorist court.

All of this was preceded by a "leaked" White Paper the Administration had prepared for the leaders of the Congressional Committees that oversee the National Security activities who had been asking for the secret memos the Justice Department had prepared for the White House. For several days the media went on a feeding frenzy. When some Senators, lead most vocally by Sen. Wyden, a Democrat, threatened to hold up the Brennan nomination, Obama called him late at night to say he would release some of the memos.

The New York Times, which had kept the killing of Awlaki before the American people in occasional articles and had tried to obtain the secret justification memos published a strong "Public Editor" column in its Sunday edition censoring the government once again. It also published a letter from Archbishop Tu-Tu asking whether the lives of non-Americans were valued less than that of Americans.

Because Brennan is a long-time CIA operative and was a higher up when "enhanced interrogation" and "rendition" were instituted by the Bush-Cheney team, he was asked about torture as well and stated that waterbording was "reprehensible" and should not be done by Americans. This brought up the question of Guantanomo and the general impression of non-legal foundations for retention of its inmates.

All of these developments left me uncomfortable because the question of irreconcilable loyalty remains. It reminds me of the medieval double contract theory that was also used as the foundation of 16th century resistance theory. viz. every person has a contract with civic authority as well as the covenant with God, the latter superseding the former in case of conflict between the demands of the two contracts. Obedience thus becomes a matter of conscience as it was assumed that the civic authority, whose persons also were bound by the divine covenant, should act in accordance with God's law. Already in the 1578 Vindication against Tyrants, a secularized justification of resistance was developed which figured in the arguments for the English Glorious Revolution and from there informed Jefferson's Declaration of Independence. The American Constitution, to prevent another resistance against a tyrannical government, guarantees the non-violent resistance against governmental misconduct. As it guarantees freedom of religion, the question of  religious conscience becomes moot, especially as there are legal exceptions for conscientious objectors. Al Walaki could thus have remained in the US and by leaving it and associating himself with Al Qaeda and its violent anti-American actions, he rejected the American constitutional system even if he remained "endowed with the right to life and liberty. It therefore seems to me, as it does to the NYT and some Senators that the Constitution binds Obama (as it should have Cheney-Bush) to its provisions as well as to the Declaration's "inalienable right to life and liberty." Obama's loyalty to the Constitution is not obviated by Awlaki's giving up his loyalty nor can it be reconciled with the Drone program nor for that matter with some aspects of "covert action" as currently practiced. (In fact, I think, that the covert action of "neutralizing with extreme prejudice" is at the origin of the Drone program).

After the nomination of Brennan cleared the Committee, Sen. Paul of Kentucky undertook a lengthy filibuster that focused on the constituionality of the President's prerogative for the use drones and in particular whether drones would ever be used to kill American citizens on American soil. In response to the latter hypothetical question the Attorney General answered by letter "NO."

Also as a result of the Brennan hearings the Administration finally made the Justice Department's memos to the President available and on Sunday March 10, 2013 the NYT had a 2 page article, beginnin on p. 1, that revealed the background as well as the actual operation of the Awlaki killing. It seems to me that the legal justification is rather "iffy." It incidentally also clarified the killing of Awlaki's son which occurred during a separate strike that was based on erroneous information and is recorded as a fiasco. Awlaki's son was not a target, but in the "wrong place, at a wrong time." So much for the media big heads lumping the two killings together.