The weird war on terror

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http://www.arabnews.com/news/525016

The weird war on terror
Noah Feldman
Published — Thursday 13 February 2014

Every time you think the war on terror can’t get any weirder, it does. In the latest manifestation, White House officials are leaking to the news media that they are considering whether to use drone strikes to kill an unnamed American in Pakistan.

This behavior is bizarre as a matter of national security: If a terrorist really poses an imminent threat, how exactly does the administration have time to test the political waters before taking him out? But it is the inevitable result of a more fundamental, long-term problem with the United States’ use of drone strikes.

The Obama administration has kept secret the legal justification for such strikes on Americans, as well as the internal procedures to be followed in making the decision. The secrecy shrouds the drone program in a basic sense of illegitimacy. No wonder the administration feels it can’t just kill our enemies, but needs to send up trial balloons first: The whole program is operating under a bad legal conscience.

The backdrop to the current mess is the fundamental problem of secret legal opinions. In 2013, the Justice Department released a “white paper” — not, it must be noted, a legal term — vaguely explaining why it believed that it was constitutional and lawful to kill an American abroad if he or she was a “senior operational leader of Al-Qaeda.” The white paper offered a kind of sketch or “framework” based on a secret Office of Legal Counsel memorandum that presumably provides the actual legal arguments on which the government relies in making such a momentous decision. But the memorandum itself has never been declassified: We have no idea what it really says, or whether the white paper accurately summarized its reasoning.