Below the Law?
Should the president of the United States be able to authorize the assassination of a U.S. citizen anywhere in the world without telling the public why—or even acknowledging that he has done so?
The question is not theoretical. On September 30 a missile fired from an unmanned drone aircraft operated by the CIA killed two American citizens in Yemen. The target, Anwar al-Awlaki, had been on a “kill or capture” list since 2010, and had narrowly escaped another drone strike in May of that year. Awlaki has since been described by President Barack Obama as the “external operations” chief for Al Qaeda in the Arabian Peninsula (AQAP), a group founded in Yemen in 2009. Also killed in the attack was Samir Khan, the editor of AQAP’s English-language magazine, Inspire. An administration official told the Washington Post that Khan, too, was considered a belligerent, and that, while the CIA did not know he was with Awlaki at the time of the attack, knowledge of his presence would not have prevented it. President Obama welcomed news of Awlaki’s death at a news conference, describing the success of the operation as a “tribute to our intelligence community.” He would not confirm that he had ordered this extrajudicial execution himself.
No one disputes that Awlaki, who was born in New Mexico, had turned against the United States in the years since 2001. Having originally denounced the terrorist attacks of September 11 as the murder of innocent civilians, Awlaki changed his tune after the United States began investigating Muslim organizations and invaded Afghanistan and Iraq. He moved from the United States to London in 2002, and from there to Yemen, where he allegedly helped plan the failed bombing of an airliner bound for Detroit on Christmas of 2009. Awlaki is also said to have corresponded with Nidal Hasan in the months before Hasan killed thirteen people at Fort Hood, Texas. The U.S. government never brought charges against Awlaki for either of those crimes; nor has it ever presented evidence for its unofficial allegations. Anyone with an Internet connection can see for himself that Awlaki preached hatred against the country of his birth, which he described as “the devil.” But an American citizen does not forfeit his constitutional right to due process by celebrating violent jihad in YouTube clips.
We now know that the Justice Department’s Office of Legal Counsel—the same office that provided the George W. Bush administration with arguments for the legality of torture—prepared a memorandum authorizing the “targeted killing” of Awlaki. (Since “assassination” is still officially illegal, that term is never used in such documents.) According to the New York Times, the secret memo argued that it was permissible to kill Awlaki for the following reasons: he was fighting alongside Al Qaeda; he posed an imminent threat to American lives; and there was no feasible way to capture him in Yemen.
Capturing Awlaki would no doubt have been harder and more dangerous than killing him with a drone-delivered missile, but, as David Cole of the Georgetown University Law Center has pointed out in the New York Review of Books (November 24), that doesn’t mean it wasn’t “feasible.” Yemen’s own counterterrorism force came close to capturing Awlaki last year. There is no good reason to suppose that the kind of Special Ops team that killed—and could have captured—Osama bin Laden in May couldn’t have brought Awlaki back alive to face justice in U.S. courts.
Even more troubling is the redefinition of “imminent threat” to include anyone the government suspects of wanting to attack the United States whenever possible—even if the person has no immediate plans, or obvious ability, to do so. As the Bush administration’s arguments for invading Iraq should have taught us, such a standard of “imminence” is dangerously accommodating. Combined with our new technologies for killing by remote control, it provides an easy rationale for easy violence. Last year Special Rapporteur Philip Alston alerted the UN General Assembly to this problem. The “concern with drones,” he wrote, “is that because they make it easier to kill without risk to a state’s forces, policymakers and commanders will be tempted to interpret the legal limitations on who can be killed, and under what circumstances, too expansively.”
If drones are just another tool of war, as their defenders insist, then they ought to be taken away from the CIA and used only by the Armed Forces, which fight our wars according to well-defined rules of engagement. Let the military present an official policy for the use of drones rather than allowing executive power to sweep improvised “covert operations” under executive privilege. The president and his lawyers apparently believe that the war against terrorism requires him to suspend the constitutional rights of certain U.S. citizens, off the battlefield as well as on. In that case, he should at least say so openly, present evidence for allegations against targeted citizens, and allow the American people to decide whether they agree.
Related: Mistargeted?, by the Editors