What a strange and alarming place we’re in when the U.S. government, under a Democratic president, kills two U.S. citizens it dislikes for their thoughts and their words, without formally charging them with any crime or trying or convicting them, using an unmanned drone directed by U.S. personnel many thousands of miles away.
And yet, that is what happened on Friday, when Anwar al-Awlaqi (a.k.a. al-Awlaki) and Samir Khan, both U.S. citizens, were killed in a drone strike in Yemen, along with several companions. Al-Awlaqi, an imam who left the United States in 2002, had aroused the U.S. government’s wrath because his anti-American sermons were in English and readily available online, and because he openly advocated violence against the United States.
It has also been widely reported that he apparently met three of the 9/11 hijackers, that he had been in email contact with Major Nidal Malik Hasan (the sole suspect in the killing of 13 military personnel at Texas’s Fort Hood in November 2009, whom the imam later reportedly described as a “hero”), and that he was allegedly involved in planning the failed plane bombing on a flight into Detroit on Christmas Day 2009, for which a Nigerian, Umar Farouk Abdulmutallab, was arrested.
In December 2009 the United States first claimed to have killed al-Awlaqi in a drone strike that killed 30 other people — all conveniently described as “suspected militants” by Yemeni security and government sources. At that time, the Washington Post reported that U.S. officials said al-Awlaqi had been “moving up the ranks” of al-Qaeda in the Arabian Peninsula, “having recently been promoted to regional commander.” However, the officials also “described him less as an operational leader than an inspirational one, whose contacts with members took place largely online.”
This is an important distinction, but it is one that has largely been overlooked when al-Awlaqi has been discussed in the mainstream media in the United States — even though Americans, through the First Amendment to the U.S. Constitution, are supposed to be uniquely placed to understand the difference between free speech and action.
The other U.S. citizen to be killed on Friday, Samir Khan, was also deeply disliked by the U.S. government. Khan was an “Internet jihadi,” as the New York Times revealed in an interview with him in 2007. In 2009 he moved to Yemen, where he became the editor of Inspire, al-Qaeda in the Arabian Peninsula’s online English-language magazine. Despite this, he, unlike al-Awlaqi, had not even been put on a hit list at the time of his death, relegating him to the same kind of non-status as the foreigners — Afghans, Pakistanis, and others — who are regularly killed by drone strikes in Pakistan.
There are three main problems with the killings: one, as hinted at above, involves the use of drones in general; the second involves the legality and wisdom of assassinations in other countries; and the third involves the legality and wisdom of assassinating U.S. citizens.
Are Killings via Drones Legal?
In the first instance, the killings mark an expansion of the U.S. government’s program of using remotely controlled drones to kill its enemies (or its perceived enemies), which pushes the limits of what can legitimately be regarded as warfare — if, indeed, it has not already exceeded those limits.
No one seems to have any accurate estimate of how many people have died in the drone killings. They have been taking place since 2004, but their use has increased dramatically under President Obama. There have reportedly been at least 270 attacks, and anywhere between 1,600 and 2,600 casualties. Moreover, in July 2009, Daniel L. Byman, a Senior Fellow at the Saban Center for Middle East Policy, noted in an article for the Brookings Institution that, according to estimates, “for every militant killed, 10 or so civilians also died,” adding that, “Beyond the humanitarian tragedy incurred, civilian deaths create dangerous political problems.”
Byman also noted that, in Pakistan, the last thing the Pakistani government needs are American efforts that backfire on them, which, of course, may also be fatally counterproductive for American aims. He quoted counterterrorism expert David Kilcullen, who said at a conference on Pakistan’s future in Washington, D.C., in 2009, “When we intervene in people’s countries to chase small cells of bad guys, we end up alienating the whole country and turning them against us.”
In October 2009, Philip Alston, the U.N. Special Rapporteur on Extrajudicial Executions, questioned whether Obama’s remote killing program was legal. Alston told a conference, “My concern is that drones/Predators are being operated in a framework which may well violate international humanitarian law and international human rights law.” Having submitted a report to the U.N. General Assembly (PDF), he said, “The onus is really on the United States government to reveal more about the ways in which it makes sure that arbitrary extrajudicial executions aren’t in fact being carried out through the use of these weapons.”
Alston highlighted three particular problems, stating, “I would like to know the legal basis upon which the United States is operating, in other words … who is running the program, what accountability mechanisms are in place in relation to that.” He also asked for disclosure of the “precautions the United States is taking to ensure that these weapons are used strictly for purposes consistent with international humanitarian law,” and also asked “what sort of review mechanism” there was “to evaluate when these weapons have been used.”
No answer was forthcoming, and the program not only continued but expanded into other countries — including, of course, Yemen. However, although the Obama administration is obviously not troubled by what it is doing, a warning was sounded in the Washington Post on October 2, 2011, by John Bellinger, legal adviser for the State Department from 2005 to 2009.
Bellinger wrote that, although the drone program had been “highly effective in killing senior al-Qaeda leaders,” the administration “needs to work harder to explain and defend its use of drones as lawful and appropriate — to allies and critics — if it wants to avoid losing international support and potentially exposing administration officials to legal liability.”
As he proceeded to explain, the justification for the program (as with the occupation of Afghanistan, illegal wiretapping, and the detention program at Guantánamo) is the Authorization for Use of Military Force, passed by Congress on September 14, which empowered the president to use “all necessary and appropriate force” against nations, organizations, or persons who planned, committed, or aided the 9/11 attacks. Bellinger also noted that the U.S. government “believes that drone strikes are permitted under international law and the United Nations Charter as actions in self-defense, either with the consent of the country where the strike takes place or because that country is unwilling or unable to act against an imminent threat to the United States.”
Is Obama’s Assassination Program Legal and/or Appropriate?
Closely related to the question of the drone program’s legality are questions about the Obama administration’s reintroduction of an assassination program. Although it was a source of huge internal wrangling in the Reagan, Bush Sr., and Clinton administrations, assassination was largely ignored by the Bush Jr. administration. Instead, that administration became obsessed with a global web of torture prisons and “extraordinary rendition,” sending its allegedly terrorism-related enemies to be tortured or “disappeared” in other countries. However, Obama demonstrated with the killing of Osama bin Laden in Pakistan that assassination by death squad is another part of the president’s contentious anti-terror arsenal.
As with the drone program, international criticism of the assassination of Osama bin Laden was muted to non-existent. In his Washington Post op-ed, John Bellinger accurately noted that “European allies, who vigorously criticized the Bush administration for asserting the unilateral right to use force against terrorists in countries outside Afghanistan, have neither supported nor criticized reported U.S. drone strikes in Pakistan, Yemen and Somalia. Instead, they have largely looked the other way, as they did with the killing of Osama bin Laden.”
Is the Assassination of U.S. Citizens Legal and/or Appropriate?
Moving from the assassination program to the killing of Americans in particular, the addition of U.S. citizens to the list of targets could hardly be more contentious had it been designed by George W. Bush and Dick Cheney. As Guantánamo shows, Americans are supposed to be protected from the excesses of their own government, while foreigners have no protection whatsoever. (Admittedly, John Walker Lindh, judicially sacrificed as the “American Taliban,” was excluded in the early days of the “war on terror.” He received a 20-year sentence as part of a punitive plea deal that involved him agreeing not to talk about the torture he had suffered at the hands of U.S. soldiers.)
After Lindh, the only other precedents for abusing Americans as though they were foreigners are the cases of the three Americans imprisoned as “enemy combatants” on the U.S. mainland under George W. Bush — Yaser Hamdi, Ali al-Marri, and Jose Padilla. Hamdi, born in the United States but living in Saudi Arabia since he was a child, was held briefly at Guantánamo and then transferred to the United States, where he was tortured and then released, and al-Marri was a legal U.S. resident who was also tortured as an “enemy combatant,” although he was moved into the criminal justice system under Obama, and tried and convicted of charges relating to terrorism in 2009.
Until last Friday’s assassinations in Yemen, the most alarming case of an American stripped of his rights in the “war on terror” was Jose Padilla. He is a U.S. citizen who was held by his own government for 3 and a half years in chronic isolation until he lost his mind, and then transferred into the criminal justice system, where he was tried and convicted for little more than a thought crime, and sentenced to 17 years and four months in prison — a sentence that, two weeks ago, an appeal court judged too lenient.
Technically, al-Awlaqi’s inclusion on a target list maintained by the U.S. military’s shadowy Joint Special Operations Command (JSOC), and the April 2010 decision to add him to “a list of suspected terrorists the CIA is authorized to kill,” which “required special approval from the White House” (as the Washington Post described it), is legal. This is because, in December last year, Judge John D. Bates of the district court in Washington, D.C., dismissed a lawsuit contesting President Obama’s “targeted killing” policy, which was submitted on behalf of al-Awlaqi’s father.
Judge Bates ruled that “the plaintiff did not have legal standing to challenge the targeting of his son,” and also concluded, alarmingly, “that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is ‘constitutionally committed to the political branches’and judicially unreviewable.”
This was unacceptable to the ACLU and the Center for Constitutional Rights, acting on behalf of al-Awlaqi’s father. They asked three particular questions that I found important:
Outside of the context of armed conflict, should it not be the case that the government can only carry out the “targeted killing” of an American citizen “as a last resort to address an imminent threat to life or physical safety”?
Why did the court not order the government to disclose the legal standard it uses to place U.S. citizens on government kill lists?
How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death?
These questions were unanswered, and they remain unanswered now, prompting John Bellinger to recommend that the Obama administration “should provide more information about the strict limits it applies to targeting and about who has been targeted.” This also renders more chilling the words of Jameel Jaffer, Deputy Legal Director of the ACLU, back in December, when, after Judge Bates’s ruling, he said:
If the court’s ruling is correct, the government has unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation. It would be difficult to conceive of a proposition more inconsistent with the Constitution or more dangerous to American liberty.
As Jaffer also noted:
It’s worth remembering that the power that the court invests in the president today will be available not just in this case but in future cases, and not just to the current president but to every future president. It is a profound mistake to allow this unparalleled power to be exercised free from the checks and balances that apply in every other context. We continue to believe that the government’s power to use lethal force against American citizens should be subject to meaningful oversight by the courts.
In America today, however, the courts have demonstrated that they are generally even more unwilling to challenge executive power when it’s wielded by President Obama than they were under George W. Bush. One of the bizarre results is that the approval for the killing of Anwar al-Awlaqi really did take place in an executive bubble, apparently approved by a secret Justice Department opinion but unrelated to what anyone else thinks, not just in America, but anywhere else in the world. And this, I think, is as troubling as the assassination program itself and the new policy of waging war remotely, both of which appear to be permanently evading scrutiny.
