The administration's take on war powers is sounding a lot like Cheney's, the author says. Lowry: Cheney's revenge

Will the author of the Obama administration white paper on killing U.S. citizens please report for his war crimes trial right away?

If he served in the George W. Bush administration, someone would already be agitating for his extraordinary rendition to The Hague. The white paper outlines why the Obama administration believes that it can kill U.S. citizens without due process if they are senior members of Al Qaeda or an affiliate. This is not a merely theoretical legal question, as Anwar al-Awlaki found out from the business end of a Hellfire missile a few years ago in Yemen.


The left is still furious that the Bush administration waterboarded three captured terrorists in the immediate aftermath of Sept. 11, 2001. Yet, with a few exceptions, it has blithely accepted the Obama administration’s extrajudicial assassination policy that has killed about 1,000 times as many people.

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During the Bush years, a small army of former Democratic officials, law professors, op-ed writers and bloggers blasted the Bush administration as dangerous and un-American for asserting the executive branch’s war powers in the fight against Al Qaeda, aka “trampling the Constitution.”

Barack Obama was going to be different. We had this on the highest possible authority: Barack Obama. As the junior senator from Illinois in 2007, he set out his alternative vision: “The separation of powers works. Our Constitution works. We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary.”

( Also on POLITICO: Wyden: Declassify more on drones)

In a speech as president in 2009, he said we are at war with Al Qaeda and must update our institutions to deal with it. “But,” he added, pointedly, “we must do so with an abiding confidence in the rule of law and due process; in checks and balances and accountability.”

The white paper outlines how that looks like in practice. If an “informed, high-level official” of the Obama administration determines that a U.S. citizen is one of the “senior operational leaders” of Al Qaeda or “an associated force” and “recently” involved in “activities” related to a violent attack against the United States, well then, he can be terminated with extreme prejudice.

Note that the high-level official has to be “informed.” This must be what Obama meant when he insisted his policies would respect “due process” and “checks and balances.” He would never allow “poorly informed” officials to decide when the U.S. government can kill a U.S. citizen. That would be outrageous.

The white paper has ignited not quite a firestorm (again, this isn’t the Bush administration), but at least a smoldering ember of brow-furrowed consternation among the president’s supporters and journalistic sympathizers who find the document “chilling.”

They rarely say what their alternative would be. Does a U.S. citizen get an exemption from targeting if he joins Al Qaeda at a high level? Should his status be litigated before he can be targeted, and if so, by whom and for how long and on the basis of what evidence? Can he show up in the court room to confront his accusers, a basic element of the Anglo-American system? Should al-Awlaki have gotten a court-appointed lawyer (assuming Gloria Allred wasn’t available) and access to all the intelligence about him so he could properly contest it? Maybe over Skype from somewhere in the badlands of Yemen?

It is self-evidently absurd. Civil libertarians lament that the argument of the white paper parallels the reasoning of the Bush administration. No kidding.

It’s not for nothing that the author of the white paper sounds like he could have worked for Dick Cheney. The Obama administration’s approach reflects the logic of the laws of war, the structure of American government and the exigencies of the fight against Al Qaeda.

It is well-established by the courts that an American citizen who is an enemy combatant can be treated as an enemy combatant. It is also well-established by the courts that it is not the role of the judiciary to interfere in the executive branch’s conduct of war. When an American citizen joins a shadowy band that is at war with America and operates in areas beyond the reach of law enforcement, he is a legitimate target for our forces.

This is not to say that the white paper is beyond reproach, or that it made sense to keep it secret for so long, but the basic point would seem obvious. Democratic partisans might be confused.They considered Bush a threat to America’s liberty because of his defense of his war powers, yet their hero stands on similar ground. How to resolve the contradiction? Easy. Conclude that they were wrong the first time.

Rich Lowry is editor of National Review.