The U.S. has been fighting the "war on terrorism" for more than a decade. Thousands of Americans have died, both in the 9/11 attacks and Washington's wars in Afghanistan and Iraq. The Constitution also is under assault, as successive presidents have asserted extraordinary and unreviewable power in the name of combating terrorism.
Washington even has turned targeted killing -- or assassination -- into routine practice. U.S. SEALs are used when the job needs to be close and personal, like the mission against Osama bin Laden. But drones have become the tool of choice, widely used in Pakistan, Yemen and elsewhere.
This new form of warfare raises fundamental questions for a democratic, constitutional republic. International law bars arbitrary killing. Domestic law further restricts the execution of U.S. citizens. Moreover, promiscuous assassinations move foreign policy into the shadows, reducing the opportunity for a full public debate over issues of war and peace.
In traditional conflict the opposing sides are reasonably clear. Not so in the "war on terrorism." Is this fight traditional war, law enforcement, or a new hybrid? If the latter, what rules apply? What should be done if there are no obvious battlefields and no certain combatants? Should propagandists be treated as fighters? Are any procedural protections required before a U.S. citizen can be killed?
These issues ended up in federal court in August 2010 when Nasser al-Aulaqi filed suit seeking a preliminary injunction to prevent the Obama administration from killing his son, Anwar al-Aulaqi. The latter, an American citizen living in Yemen, had been added to a federal "kill list" four months before. Judge John Bates dismissed the lawsuit on procedural grounds, ruling that Nasser al-Aulaqi lacked "standing" to sue and the so-called "political doctrine" prevented the court from deciding the issue. Last September Anwar al-Aulaqi was killed by a Predator drone.
The Constitution is the fount of authority for the national government and protects Americans even when they are overseas. The 4th Amendment regulates the seizure of citizens, who are to be "secure in their persons." The 5th Amendment mandates that no one can "be deprived of life, liberty, or property, without due process of law." Other constitutional provisions cover prosecuting traitors and imposing bills of attainder (the former requires the testimony of two witnesses; the latter is prohibited).
The Alien Tort Statutes and Torture Victim Protection Act also bar arbitrary killing. Moreover, this principle has been incorporated into customary international law. Admittedly, "many norms of international law are vague and even border on the vacuous." Nevertheless, international law reinforces domestic legal restrictions on killing American citizens.
Limits on government are necessary to preserve a liberal democratic order and protect individual liberty. These constraints are most important where state power is most extreme and its consequences are most significant. Like killing people. In 2004 the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions observed:
Empowering governments to identify and kill 'known terrorists' places no verifiable obligation upon them to demonstrate in any way that those against whom legal force is used indeed are terrorists, or to demonstrate that every other alternative has been exhausted.
So can the U.S. government kill its own citizens, like al-Aulaqi? Ryan Alford, a professor at Ave Maria School of Law, contended: "It is beyond peradventure that the Framers never intended to invest the president with the power to order a citizen's execution without trial."
Yet police sometimes shoot and kill without trial. Doing so is legal, but requires a powerful justification. The same principle applies to combating terrorism.
The U.S. government may prosecute citizens for many reasons. Committing treason, for instance. Supporting organizations which threaten the U.S. Perhaps even for serving as propagandists for America's avowed enemies. But none of these activities would warrant secretly placing the person's name on a "death list," especially without a conviction or other adjudication of guilt by an objective body. Even Jeh Johnson, the Department of Defense General Counsel, observed that simply embracing al-Qaeda's ideology would not be enough.
In contrast, joining enemy armed forces and fighting U.S. forces would allow the U.S. government to target a U.S. citizen. But Anwar al-Aulaqi was living in Yemen where no U.S. troops were fighting, unlike in Afghanistan and Iraq, had joined the equivalent of a gang rather than an army, and was not involved in traditional combat.
Nor did the authorization to use military force adopted by Congress after 9/11 cover al-Aulaqi. The resolution authorized the president to use "all necessary and appropriate force" against those who "planned, authorized, committed, or aided" the 9/11 attacks in order to "prevent future acts of terrorism." As such, the AUMF targeted al-Qaeda and those who attacked America a decade ago. Al-Aulaqi did not leave the U.S. until 2002, settling in Yemen two years later.
Outside of active combat, especially in a declared war, when can Washington kill American citizens? Only if the government can demonstrate a compelling interest subject to what the U.S. Supreme Court terms "strict scrutiny." That means the targeted citizen must pose an imminent threat to life (or threaten serious physical injury) and killing him or her must be a last resort.
International law embraces similar concepts. One is proportionality -- such as responding to a threat to life. Another is necessity -- which reflects imminence and last resort. Also considered is precaution -- which requires planning to limit the recourse to lethal force. Thus, under both domestic and international law, the American government can execute people, including American citizens, only for the most important of reasons and when there is no reasonable alternative to doing so.
Were these criteria met in the case of Anwar al-Aulaqi?
The administration insisted they were. It called him chief of operations for al-Qaeda in Yemen. It said he personally instructed a suicide bomber in 2009. It claimed he was "intimately involved in the attacks that have come closest to hitting the United States." It contended that he had a "direct role in supervising" the attempt to send mail bombs to America. It asserted that he pushed al-Qaeda (Yemen) to attack the U.S., something he "said publicly was his goal."
If these allegations are true, al-Aulaqi threatened the lives of Americans. One could imagine someone joining a completely ineffective terrorist-wannabe group, which might not justify a deadly U.S. government response. However, while al-Qaeda (Yemen) thankfully so far has achieved little practical success, it is not for want of trying. Washington should not be restricted to playing defense, hoping to always be lucky in foiling new terrorist plots. By his conduct al-Aulaqi created a presumptive danger to America.
However, the government was not attempting to preempt any particular plot. Was the threat imminent, especially since names apparently are entered on the "kill list" for months or years, without apparent regard to potentially changed circumstances?
Regarding al-Aulaqi Cato Institute Chairman Robert Levy said bluntly: "The imminent-threat contention isn't credible." There is no obvious reason why it was necessary to kill al-Aulaqi on September 30, 2011 versus October 30 or November 30. Indeed, only rarely is the government likely to have reliable knowledge of an upcoming plot of the sort necessary to demonstrate "imminence" in a particular case.
Membership in a hostile, violent terrorist group engaged in an ongoing campaign to harm Americans arguably creates a substitute form of imminence. In essence, al-Aulaqi's actions shifted the burden of proof. Take a leadership role in a group dedicated to attacking Americans and you can be presumed to pose an imminent threat to kill or commit great bodily harm. Membership in al-Qaeda (Yemen) joined intent with action.
Finally, was assassination a last resort -- could al-Aulaqi have been captured? The U.S. government has successfully prosecuted other individuals for terrorist activities. Trying instead of killing al-Aulaqi would have showcased America's commitment to the rule of law.
But it obviously is easier to capture a fugitive in the United States, where the government (at whatever level) has full authority. Even with the cooperation of foreign governments, it is much more difficult to grab someone overseas, especially if he or she has friends in the local police, military, or intelligence services. In fact, even attempting to capture someone might require a significant military operation. It would be ironic if the Constitution was interpreted to bar use of a drone to kill a person while justifying a large foreign expedition to capture the same person.
In short, if the administration's claims were true, the al-Aulaqi killing probably met constitutional requirements. However, simply saying it is so does not make it so. My Cato Institute colleague Julian Sanchez warned of the tendency to treat such assertions "as ironclad facts rather than contestable inferences from necessarily patchy data -- even though the past decade should have made it abundantly clear that analysts sometimes get it wrong."
Washington policymakers have commonly relied on discredited intelligence claims. Consider the catastrophic war against Iraq. The credibility of foreign sources must be weighed. Competing intelligence must be balanced.
Indeed, this is why trials are held on criminal charges: juries assess witness credibility and compare conflicting claims. In the case Yaser Esam Hamdi vs. Donald H. Rumsfeld, the U.S. Supreme Court even ruled that "a citizen held in the United States as an enemy combatant [must] be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." It would be ironic if it was easier to kill than imprison a U.S. citizen.
Administration claims regarding al-Aulaqi have been challenged. Gregory Johnsen, a Yemen specialist, contended: "Certainly, Aulaqi was a threat, but eliminating him is not the same as killing Osama bin Laden." Johnson pointed out that al-Aulaqi was not the head of al-Qaeda (Yemen), in charge of military operations, or even the organization's top religious scholar.
Rather, he is a mid-level religious functionary who happens to have American citizenship and speak English. This makes him a propaganda threat, but not one whose elimination would do anything to limit the reach of the Qaeda brand." Indeed, added Johnsen, "Mr. Aulaqi's name may be the only one Americas know, but that doesn't make him the most dangerous threat to our security.
How to decide the truth about al-Aulaqi and others like him? The administration apparently produced a 50-page memo citing his operational role in a group viewed as a co-belligerent with al-Qaeda. Washington also contended that his capture was impracticable. What was reasonable and due process, the administration added, had to be determined by consequence.
These are reasonable arguments. But allowing the president and his aides to compile "kill lists" in secret with no charges filed, no outside review of evidence, and no oversight of decisions should leave every American more than uncomfortable. Unreviewable and unaccountable power is inconsistent with a constitutional republic.
Events like 9/11 may justify expanding government power. However, officials still must be held accountable for their use of that power. Yet in cases like al-Aulaqi there is no accountability so long as the government is careful to assert arguments which offer a constitutional justification for targeted killings -- that the person posed an imminent threat which could be dealt with no other way -- and the courts refuse to exercise oversight.
Even if the president can get away with acting unilaterally, he should not do so. The administration could create a formal process with internal checks and balances. Afsheen John Radsan and Richard Murphy, of the William Mitchell School of Law and Texas Tech University School of Law, respectively, argued that "the government must take reasonable steps based on individualized facts to ensure accuracy before depriving any person of life, liberty, or property," but suggested that this requirement "might be satisfied by independent, intra-executive review." In fact, Jeh Johnson contended: "Within the executive branch the views and opinions of the lawyers on the president's national security team are debated and heavily scrutinized."
However honest such an internal review, it is not enough. In the case of al-Aulaqi, the administration should have released its decision memo. It need not reveal any sensitive intelligence. But the government's arguments should be available for public review. Chicago Tribune columnist Steve Chapman complained that the president "saw no need to bother" to make the case that al-Aulaqi "posed a clear threat to American lives and that the missile was the only feasible way to avert it." The president should have made the case.
Moreover, the nation's founders created a system with numerous checks and balances to constrain government irrespective of who was in office. Argued Robert Levy: "The separation of powers doctrine, if it means anything, stands for the proposition that citizens cannot be killed on command of the executive branch alone, without regard to the Fourth and Fifth Amendments." Institutionalizing stricter safeguards is imperative today, with the new forms of warfare which has come to dominate U.S. policy.
Electronic surveillance of foreign powers and their agents, which could include Americans, posed a similar challenge. In 1978 Congress passed the Foreign Intelligence Surveillance Act. FISA allows surveillance of foreign parties without a court order, but requires a warrant, through a special court which hears the case in secret, when Americans are involved.
Congress should create a similar process for targeted killings. Legislators should establish special National Security Courts to grant formal Assassination Warrants. The government would have to demonstrate that a serious threat was imminent and there was no reasonable alternative to a targeted killing. Judges would be trained to assess intelligence claims. A warrant would allow the government to place a name on an official "kill list." The warrant would sunset after a period of time -- six months, perhaps -- after which the government would have to return to court to renew the warrant.
Admittedly, "assassination warrants" would seem grotesque in a free society. The fact that the threat of terrorism has generated new forms of war which undercut Americans' liberty provides another reason to rethink an interventionist foreign policy which encourages terrorism. Promiscuous intervention by Washington has left the U.S. less secure in recent years. An activist foreign policy also is undercutting America's heritage of liberty.
As long as Washington responds to terrorism with extreme countermeasures, such as targeted killings, new procedures are necessary. At least judicial review would force the government to make a proffer of proof to someone independent of the executive branch. Moreover, specialized training would enable jurists to ask the right questions. Executive authority might remain excessive and subject to abuse, but it would no longer be essentially limitless.
Osama bin Laden and his fellow terrorists have lost the war on terrorism. However, their attacks have transformed the U.S., threatening the liberties as well as lives of Americans. There is no greater government power than to order someone's death.
In killing Anwar al-Aulaqi the administration may have acted constitutionally. But even if so, it did not act consistently with a free society. Congress should create additional safeguards.
Americans must never forget that we are securing a democratic republic, a system based on protecting individual liberty. If we fail to preserve the freedoms which make America unique and worth defending, the terrorists truly will have won.
This post first appeared at Forbes online.
Robert Naiman: Yes, Virginia, We Can Do Something About the Drone Strikes
But yours are downright miraculous, involving the revival of a man who our drones have already killed.
The U.S. Government rewarded America's most courageous truth teller Bradley Manning who revealed horrific war crimes being committed, by torturing and jailing him without charges or trial for a year and now the U.S. Government is conducting a secret kangaroo court threatening to execute him for revealing the truth about these war crimes. All those involved in these human rights and constitutional abuses of Bradley Manning are criminals and must be prosecuted.
If a declaration of war on an ideology is acceptable then clearly the presidents constitutional role as commander in chief is supreme and he is entitled to wage war which includes killing. To say that the president needs authorization from a judge before every air strike to determine he is hitting the authorized ideology is nonsensical and would defeat the purpose of the presidents war powers.
No one would have doubted that an airstrike ordered on a US citizen in german uniform was AOK during WWII. Or that a special forces operation targetting such an individual supporting the german war machine was ok. The challenge is can you declare war activating the extreme measures of violence authority of the president against the declared military target.
Can we declare war on terrorism. If we can then the presidents war powers clearly grant authority to kill targets regardless of citizenship of that party declared war upon.
And you forgot a line from the AUMF - "or harbored such organizations or persons," Is not a propagandist in working to justify such organizations acts harboring them.
And if we can declare war on an ideology, which I doubt, we have not done so, and so, invoking the president's war powers is premature.
Harboring does not mean speaking or writing-- it means keeping something or someone safe from harm or detection.
Enemy gain certain rights when they are captured, not before.
Even so, Congress did declare war through two AUMFs during the Bush administration.
Guidelines which exist need to be reinforced with the rule of law; where things are legally murky, the "checks and balances" of a democratic government need to be rigorously enforced.
As a former military officer who is a proud liberal, I firmly believe that in order to maintain the security of our democracy in today's world we will sometimes have to take a harsh initiative with those who are a threat to our country. But how we do this should be part of our own "rule of law", not some willy-nilly squeamish interpretation from a government lawyer.
Again, this topic is of ultimate importance and we should be discussing it on the national stage in order to arrive at some kind of national consensus - instead we are talking about forcing women who exercise their constitutional rights to be subjected to humiliation and outright rape, and about personal sexual issues which the government has no business being involved in, and about whether a gay couple should be denied the same rights of citizenship that a heterosexual couple share.
It really is up to the forward looking people in this country to come to grips with this issue, because it will not go away, and because the backward looking people have lost all credibility.
The enemy's uncertainty is our force multiplier. We do not publish our rules of engagement, or least not the ones we actually follow, lest the enemy come to hide behind them. Rather let them say of the Americans that they never knew what we would do, but they knew it would be bad.
It is a military maxim, that he who defends everywhere, defends nowhere. Deception and misdirection is at the heart of tactical, operational and strategic planning. Let the enemy be in the dark as to when and where we may take him.
Yes, people (enemies, etc) will hide behind laws, stretch them to the limit (go ask Wall Street if you harbor doubt) -- but this just means we need to erect laws accordingly, so we can act within them, enforce.
Relaxing limits on power is a slippery slope (to use that worn out phrase). We need to be aware of the consequences of losing control -- does the dictator ever relinquish power?
An interesting read on this (and related subjects) is "Crossing the Rubicon" by Michael Ruppert:
http://www.amazon.com/Crossing-Rubicon-Decline-American-Empire/dp/0865715408
Warning: UXB, lots of unexpected info in that one...
Thanks, and Enjoy.
To paraphrase, those who sacrifice liberty for safety get neither.
This can only be addressed by the last 50 years of our policies in that region. While we cannot undo the monumental mistakes and meddling of the past, what we can do is LEAVE.
What we can do is diversify our oil supply in every means possible and quit sending our fortunes to that region. What we can do is pursue every possible avenue to render the region irrelevant. What we can do is reject interventionism.
What we can do is drastically different than what we will do.
If someone threatens a citizen of the United States anywhere in the world,.....we must immediately form a COMMITTEE to determine if the threat is legitimate
This COMMITTEE must be comprised of 1 Preacher, I priest, 1 Rabbi, 1 Hindu Guru, 1 Tibetan Monk, 1 Aborigine Medicine Man, 1 Democrat, 1 Republican, 1 Unaffiliated1 Independent, 1 Atheist, 1 Agnostic, 1 Liberal, 1 Conservative, 1 Lawyer, 1 Medical Professional...and on and on and on.......
.We must remember, we will never ever trust anyone to make a determination of a threat to any citizen in the world, all decisions should be made by a COMMITTEE.
IT is unfortunate that selection of all members of such a COMMITTEE would take a few years and in the interim, the school yard bully has kicked the crap out of somebody's son or daughter,
Or some ROGUE DICTATOR has killed THOUSANDS of his own people and we are still waiting on some azzwhole to decide if it would violate a WORLD CODE or someones RIGHTS
if this BULLY was taken care of...... Oh That's not good enough......then protect yourself.......still not good enough........buy a gun..........first repeal that Presidential Proclamation prohibiting guns..... in the meantime.......
The Cato Institute pushes individual liberties and freedoms. It did not agree with the patriot act when it was implemented and doesn't like it now.
2002
http://www.cato.org/publications/policy-analysis/breaking-vicious-cycle-preserving-our-liberties-while-fighting-terrorism
http://www.cato.org/publications/commentary/hanging-liberty-postsept11-world
2003
http://www.cato.org/publications/policy-analysis/deployed-us-creeping-militarization-home-front
Both parties are at fault here, forget your political bias and look at what is really going on.
I was initially for the Patriot Act when it was implemented, I was caught up in the emotion of the time and wanted pay back just as many did. Over time I learned more about it and the threat it poses to American freedom. Remember, what may seem like a good idea while you're team is in power, may not be so when the other team takes control. The laws and regulations that seem like a good idea when implemented as you believe they should may not be when someone is tasked with that implementation.
The post was in response to the decision making process in killing individuals who may or may not have allegiance to the US.
Your narrowly focused viewpoint that seizes upon the only points you can pinpoint is a clear indication of your desire to " grind axes" than to discuss an issue.
Have a nice day
Arbitrary killing since Jan 2009 bad.
Remarkable. Say hi to the Kochster for us.
http://www.cato.org/publications/policy-analysis/breaking-vicious-cycle-preserving-our-liberties-while-fighting-terrorism
http://www.cato.org/publications/commentary/hanging-liberty-postsept11-world
2003
http://www.cato.org/publications/policy-analysis/deployed-us-creeping-militarization-home-front