Brian and Garrett Fahy

The arbitrary thinking underlying such operations has now been revealed. The Administration’s rationale for the targeted drone killings of terrorists and others – including Americans – named on the “Joint Prioritized Effects List” was revealed in a recent Department of Justice white paper. Most striking (and surprising) is the paper’s assertion that the president bases his anti-terror actions not only on his Commander-in-Chief power, but also on the AUMF, which President Bush signed over a decade ago. Even supporters of the drone program have raised legitimate questions about whether the AUMF provides an adequate legal basis for the program.

More problematic, however, is the extent to which the Administration in the white paper attempts to occupy both sides of the policy debate: granting terrorists constitutional rights, yet permitting administration “officials” to nullify those rights without review or due process. As legal scholar John Yoo observed, “The administration has replaced the clarity of the rules of war with the vague legal balancing tests that govern policemen on the beat…The memo shows that for the first time in the history of American arms, presidential advisers will weigh the due-process rights of enemy combatants on the battlefield against the government's interests, judge an individual's ‘imminent’ threat of violence, and ponder whether capture is feasible before deciding to strike.”

The upshot of this is clear. The Obama administration continues to laud its supposed adherence to the rule of law, while it wantonly kills (treasonous) Americans based on legal regimes erected by the Bush administration before American drones targeted Americans. Further, it uses those regimes to assert legal positions more aggressive and legally dubious than any advocated by the Bush administration.

Until the president squarely defines who we are fighting, how we are fighting, and the legal basis for the fight, confused uncertainty will continue to obscure what should be clear. Yet legal justification and congressional sanction for the assassination of enemy-affiliated Americans like Anwar al-Awlaki is only a concern if terrorists like him represent a clear and present danger to the United States, i.e., an enemy. The president apparently believes the country is confronted with little more than isolated terrorist hotspots requiring a drone strike here or federal prosecution there, and he fights accordingly. The last time such thinking had currency was September 10, 2011.

Brian and Garrett Fahy

Brian and Garrett Fahy are attorneys from Los Angeles who previously worked in the White House and Senate Republican Conference, respectively. They write on national legal and political affairs. They can be reached at