"How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but... judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death?"
That's just one of many intriguing questions raised -- but not answered -- by the D.C. District Court on Tuesday in its decision dismissing the case of Anwar al-Awlaki, a challenge to the government's authorization to kill a U.S. citizen allegedly tied to Al Qaeda overseas. Ultimately, the court won't answer any of these critical questions because it decided that, among other things, Al-Awlaki's father lacks standing to sue, since he's not directly harmed by the U.S. action.
Significantly, though, Judge John Bates did not dismiss the case on the merits. Instead, he went out of his way to write that the case raises important legal questions regarding whether the government can target its own citizen for death in a foreign country without so much as a hearing to determine that he's done anything wrong.
Anwar al-Awlaki is a dual U.S.-Yemeni citizen and Muslim cleric with alleged ties to al Qaeda. Known for his inflammatory statements calling for "jihad against the West," he was reportedly added to a U.S. hit list after the government came to believe that he provided instructions to Umar Farouk Abdulmutallab, the man accused of trying to set off a bomb on a flight bound for Detroit last Christmas.
Even though Tuesday's decision means the courts likely won't decide whether Awlaki is a lawful target, the questions raised by this case, brought by the ACLU and Center for Constitutional Rights, still cry out for answers.
"This is a unique and extraordinary case," wrote District Court Judge John Bates in his 83-page opinion, presenting "fundamental questions of separation of powers involving the proper role of the courts in our constitutional structure."
Among the "stark" and "perplexing" questions raised are, according to Judge Bates:
"Can the Executive order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization?"
"And how does the evolving [Al Qaeda in the Arabian Peninsula] relate to core al Qaeda for purposes of assessing the legality of targeting AQAP (or its principals) under the September 18, 2001 Authorization for the Use of Military Force?"
In particular, under what circumstances is the U.S. government allowed to target for death an individual suspected of participating in terrorism in a foreign country where we are not actively engaged in a war? Whether or not he's a U.S. citizen, what role does that person have to be playing to become a legitimate military target for the United States? And is it legitimate to kill people under the laws of war if they are part of an organization that did not exist when we declared war?
In March, State Department Legal Advisor Harold Koh said :
...[I]t is the considered view of this administration...that targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs), comply with all applicable law, including the laws of war....As recent events have shown, Al Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al Qaeda leaders who are planning attacks...
Although Koh assured the gathering at the American Society of International Law that the U.S. policy on targeted killing complies with international law requirements, the government has never actually provided enough information about its policy for the public to know if that's true.
For example, how high-level in Al Qaeda (or an affiliate) does the target have to be? What if the individual is providing "material support" to Al Qaeda, or soliciting new recruits; is that enough to land him on the U.S. hit list?
According to international law, in an armed conflict only someone "directly participating in hostilities" against the United States is a legitimate target for U.S. assassination. But the United States has neither said whether it is abiding by that principle in its targeting, nor how it defines "direct participation."
Koh also suggested in his speech that assassination could be lawful in "self-defense." But killing in self-defense is only legitimate if the target poses an imminent threat. How imminent is the threat from someone who's on a list of targets for months or even years on end? It may be, but the U.S. needs to explain how it makes that decision.
Of course in a war the U.S. doesn't have to give a hearing or trial to legitimate battlefield targets. But when the government appears to view the battlefield as extending around the world, the U.S. government must do more to assure its own citizens as well as its allies and potential enemies that it is not roaming the globe aiming to kill anyone who espouses anti-American sentiment or supports terrorists' efforts. Those suspected of conspiring or supporting terrorists can be arrested, interrogated and brought to justice under U.S. law. But they cannot simply be killed with no questions asked.
The U.S. government has just won the right to keep quiet about its targeted killing policy in the Awlaki case. But it's in the United States' own national interest to start providing some answers.