When can the president order the execution without trial of an American citizen? The New York Times recently reported that in June 2010, the Justice Department’s Office of Legal Counsel produced a secret fifty-page legal memo that sought to answer that question, and authorized President Obama to order the killing of Anwar al-Awlaki, a US citizen living in Yemen and a leader of al-Qaeda in the Arabian Peninsula (AQAP).
In September, the US carried out that order with a drone strike that killed al-Awlaki and another US citizen traveling with him. Two weeks later, the US also killed al-Awlaki’s son, reportedly “collateral damage” in a separate drone attack in Yemen. Al-Awlaki himself was afforded no notice, no charges, no trial. As far as we know, no one outside the executive branch reviewed the President’s decision. The strike was front-page news, and apparently was undertaken with the approval of Yemeni authorities, yet since it was a “covert operation,” the Obama administration has declined even to acknowledge that it ordered the killing. The President did, however, call a news conference to announce that al-Awlaki “was killed,” and to proclaim his death a “success [that] is a tribute to our intelligence community.”
So now we know that there is a secret memo that authorized the secret killing of a US citizen—but both the memo and the killing remain officially “secret” despite having been reported on the front page of The New York Times. Whatever one thinks about the merits of presidents ordering that citizens or noncitizens be killed by remote-controlled missiles, surely there is something fundamentally wrong with a democracy that allows its leader to do so in “secret,” without even demanding that he defend his actions in public.
Indeed, some have drawn parallels to the secret memos that Justice Department lawyers John Yoo, Jay Bybee, and Stephen Bradbury wrote during the Bush administration to provide legal cover for the CIA’s torture and cruel and inhuman treatment of suspects who had been abducted and “disappeared” into secret prisons. Then as now, the Office of Legal Counsel, a part of the Justice Department charged with giving legal advice to the president, developed extensive legal memos to justify conduct that would have been unthinkable before September 11. Then as now, the merits of the legal positions advanced were deeply controversial. And then as now, secrecy served to deflect public scrutiny of tactics that many Americans might well reject if the issues were fully aired.
There are important differences, to be sure. Inflicting cruel or inhuman treatment on wartime captives is never permissible. Torture is absolutely prohibited, in war as well as peace. By contrast, it is not illegal to kill enemy fighters in wartime, whether citizen or not, without a trial. Lincoln’s Union Army did it repeatedly, of course, during the Civil War. If US soldiers had confronted al-Awlaki carrying a gun on an Afghan battlefield, the laws of war and the Constitution would permit them to shoot him on the spot. No one could credibly maintain that they would have to wait until a jury of his peers convicted him and the Supreme Court denied review.
But al-Awlaki was not on the battlefield. He was in Yemen. And he was not even alleged to be a part of al-Qaeda or the Taliban, the two entities against whom Congress authorized the president to use military force in a resolution passed one week after the terrorist attacks of September 11, 2001. That resolution continues to provide the legal justification for the war on al-Qaeda and the conflict in Afghanistan, but it is limited to those who attacked the US on September 11 and those who harbor them. Al-Awlaki was not alleged to be part of either group, but instead a leader of AQAP, an organization in Yemen founded in 2009, long after the September 11 attacks. He had never been tried, much less convicted, for any terrorist crime.
Al-Awlaki was evidently a dangerous character. He corresponded by e-mail with Nidal Hasan for six months before Hasan shot and killed thirteen men at Fort Hood, Texas, in November 2009, and was allegedly involved in planning the foiled bombing of an airliner bound for Detroit on Christmas Day 2009. (Umar Farouk Abdulmutallub pleaded guilty to the Christmas Day bombing attempt on October 12.) But al-Awlaki was not charged in either crime. Neither attack, moreover, was carried out by al-Qaeda or the Taliban. Are unofficial “allegations” of encouragement of or involvement in terrorism enough to authorize secret executions without trial outside of a military conflict?
The New York Times reports that the Justice Department memo concluded that al-Awlaki could be killed because he was the leader of AQAP, which it deemed a “cobelligerent,” effectively fighting alongside al-Qaeda; because he posed an imminent threat to the United States; and because capturing him in Yemen was deemed “not feasible.” If all of these conditions were in fact met, al-Awlaki’s targeted killing may well have been justified as an incident of war.
But none of these assertions has been tested in any forum, and there are serious questions about all three. What is the “imminent” threat that al-Awlaki posed? No one has claimed that he was involved in planning an imminent terrorist attack on the United States when the drone missile struck. The memo reportedly argued that the “imminence” criterion could be satisfied by a finding that he was the leader of a group that sought to attack the United States whenever it could, even if he was involved in no such attacks at the time he was killed. But that stretches the imminence requirement beyond recognition, virtually to the point of abandoning it altogether.
John Brennan, President Obama’s senior adviser on homeland security and counterterrorism, argued in a recent speech at Harvard that the UN Charter requirement that a threat be imminent before a nation can exercise its right of self-defense makes less sense as applied to a clandestine terrorist group, whose threats may be harder to spot in advance. But the purpose of the “imminence” requirement was to ensure that military force is truly a last resort. Predicting the future is always difficult, and as Pearl Harbor and the absence of weapons of mass destruction in Iraq both demonstrate, we can always be surprised. Too many wars have been launched on the basis of ill-defined future threats. The watered-down imminence that Brennan and the OLC memo seemed to advocate would permit targeting even when no attack is in fact anticipated. But as long as an attack is not imminent, it may become possible to foil the attack through arrest, criminal prosecution, interdiction, or other means. As many countries, including Great Britain, Germany, Spain, and Italy, have shown, the fact that organized groups seek to engage in politically motivated violence does not necessitate a military response. Absent a truly immediate threat, shouldn’t we pursue nonlethal alternatives?
And what does it mean that it was “not feasible” to capture al-Awlaki alive? The Yemeni authorities reportedly permitted the drone attack. We are apparently working with them very closely, and an elite counterterrorism force nearly captured al-Awlaki last year. Even in the case of the raid on Osama bin Laden’s compound in Pakistan, administration officials considered the possibility of capture instead of assassination. Was it really not possible to continue to try to capture al-Awlaki? And is it sufficient if the administration concludes that capture, while possible, would be too costly for foreign policy reasons? What exactly does it take to show that capture is not feasible?
The legality of killing rather than prosecuting al-Awlaki also turns on whether AQAP is properly understood as part of the ongoing armed conflict with al-Qaeda. As noted above, it does not come within the literal terms of Congress’s authorization to use military force. It has an ideological allegiance with al-Qaeda, but that is not enough to qualify it as a “co-belligerent.” It has attempted terrorist attacks in the United States. But it is not clear that AQAP has ever actually fought alongside al-Qaeda. Can the president bypass the criminal process and use lethal force to target any suspected terrorist, even a US citizen, who has ties to al-Qaeda? Given the difficulty, repeatedly demonstrated at Guantánamo, of identifying who is and is not in al-Qaeda itself, allowing the president to kill members of nebulously linked groups far from any battlefield if the government labels them “co-belligerents” would create the potential for serious abuse.
Answering these questions is critical to assessing the legality of al-Awlaki’s killing—and its implications for continuing drone attacks on suspected terrorists in many parts of the world. But because the Obama administration will not make public the legal case for its targeted killing policy, all of these questions remain unanswered.
Government officials have suggested that they must keep the drone strike policy secret in order to obtain approval of nations such as Yemen and Pakistan to direct drone attacks within their borders. Diplomacy may be smoothed by plausible deniability. But what, really, is left of plausible deniability once an attack has been reported on the front pages of the world’s newspapers and proclaimed by our President as a victory for the CIA? Should another country’s interest in saving face with its own citizens justify US officials in hiding from their own citizens the parameters of a power as awesome as the power to execute without trial? And why would such diplomatic concerns preclude public disclosure of the general outlines of US policy?
A clearly articulated position concerning such attacks would also serve our foreign policy interests. US drone strikes are deeply resented in Pakistan and Yemen. (We might well be resentful, too, if another country started directing drone strikes at “bad guys” in Pennsylvania or Wyoming.) Dennis Blair, who served as director of national intelligence under President Obama, recently argued in The New York Times that unilateral drone strikes in Pakistan have caused so much anti-American backlash that they should be halted altogether. Part of the anger undoubtedly stems from the sense that the US is acting beyond the law, simply because it has the means to do so. If this tactic is to be viewed as legitimate, we must convince the world that we are employing it carefully and lawfully. Refusing to offer a clear public articulation of the policy will only further alienate those we need to have on our side if we are to succeed in the long run.
For the moment, the US appears to have a near monopoly on drone technology; only Britain and Israel have also used drones for strikes. But that is only temporary. What the United States does today will have repercussions for what other countries feel free to do tomorrow with the drones they will inevitably develop. Russia has already exploited the international mandate to fight terrorism by authorizing its military to target “international terrorists” in other countries, and expanding its definition of terrorists to include those who promote “terrorist ideas”—for example, by distributing information that might encourage terrorist activity. It may seem fanciful that Russia would have the nerve to use such an authority within the United States—though in the case of former KGB officer Alexander Litvinenko it appears to have had few qualms about taking extreme measures to kill a person who had sought refuge in the United Kingdom. But it is not at all fanciful that other nations may follow the US’s lead and seek to use drones against perceived “enemies” residing in less powerful countries.