The Obama administration has reached a "compromise" over the dispute about secret Justice Department memos that describe the legal justifications for the killing of U.S. citizens believed to be senior operational terrorist leaders planning U.S. attacks.
But the compromise falls short because it would continue to permit the administration to rely on secret law instead of explaining its justifications to the public.
The compromise is aimed at moving along the nomination of David Barron, a former Justice Department official and President Barack Obama's nominee to the U.S. Court of Appeals for the First Circuit, covering New England. At the Justice Department, Barron reportedly co-wrote two memos authorizing the killing of U.S. citizens believed to be planning U.S. attacks. The administration's compromise was to make one memo available to senators. The memos have not been made public.
This is not acceptable. It is not a question of revealing counterintelligence methods -- it is a matter of explaining to the public what the executive branch, and a nominee to an important federal court, think the Constitution says about the scope and limits of executive power.
To understand what the Barron dispute is about, it's important to consider the background. In September 2011, a U.S. drone strike killed Anwar al-Awlaki, a U.S. citizen who had become a terrorist propagandist in Yemen. His group, al-Qaida in the Arabian Peninsula, was behind the failed 2009 attack on a plane headed to Detroit. However, the Obama administration did not order his killing because of al-Awlaki's hateful YouTube videos. It claimed al-Awlaki could be placed on a kill or capture list because he was a senior operational leader in his group, directly involved in planning attacks against the United States.
Drone strikes present issues under international law (as well as moral questions). But the killing of al-Awlaki in a joint CIA-U.S. military operation raises specific questions because he was a U.S. citizen. The Obama administration must identify the power to have ordered his killing in a way that is compatible with the Constitution and U.S. law.
The administration has not fully presented its legal justification for the al-Awlaki killing.
What we know is troubling. Attorney General Eric Holder, while acknowledging that Supreme Court precedent makes clear U.S. citizens can't be imprisoned, let alone killed, without due process, bizarrely claimed that due process need not be judicial process. In other words, due process could be satisfied by procedures operating within the executive branch, with no judicial oversight and only a vaguely described interaction with Congress. As Harvard Law professor Noah Feldman observes, there is "no precedent for the idea that due process could be satisfied by some secret, internal process within the executive branch."
Last month, the Second Circuit Court of Appeals ordered the administration to release a redacted version of one of the two memos. That is the right approach for both memos. The half measure offered by the Obama administration -- making the memos available to U.S. senators who would vote on the Barron nomination -- is not good enough.
Sen. Rand Paul (R-Ky.) is right to insist that the Obama administration make its legal reasoning for the targeted killing program available to the public. That way we can understand how Barron justified the program before the Senate votes on his nomination.
Chris Edelson is an assistant professor of government in American University's School of Public Affairs. He is author of "Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror," published in 2013 by the University of Wisconsin Press.