On September 30, 2011, in a northern province of Yemen, Anwar al-Awlaki, an American citizen and a senior figure in Al Qaeda in the Arabian Peninsula, finished his breakfast and walked with several companions to vehicles parked nearby. Before he could drive away, a missile fired from a drone operated by the Central Intelligence Agency struck the group and killed Awlaki, as well as a second American citizen, of Pakistani origin, whom the drone operators did not realize was present.
President Barack Obama had personally authorized the killing. “I want Awlaki,” he is said to have told his advisers at one point. “Don’t let up on him.” The President’s bracing words about a fellow American are reported in “Kill or Capture,” a recent and important book on the Obama Administration’s detention and targeted-killing programs, by Daniel Klaidman, a former deputy editor of Newsweek.
With those words attributed to Obama, Klaidman has reported what would appear to be the first instance in American history of a sitting President speaking of his intent to kill a particular U.S. citizen without that citizen having been charged formally with a crime or convicted at trial.
The due-process clause of the Fifth Amendment prohibits “any person” from being deprived of “life, liberty, or property without due process of law.” Obama authorized the termination of Awlaki’s life after he concluded that the boastful, mass-murder-plotting cleric had, in effect, forfeited constitutional protection by waging war against the United States and actively planning to kill Americans. Obama also believed that the Administration’s secret process establishing Awlaki’s guilt provided adequate safeguards against mistake or abuse—all in all, enough “due process of law” to take his life.
Awlaki was certainly a murderous character; his YouTube videos alone would likely convict him at a jury trial. Yet the case of Awlaki’s killing by drone strike is to the due-process clause what the proposed march of neo-Nazis through a community that included many Holocaust survivors in Skokie, Illinois, was to the First Amendment when that case arose, in 1977. It is an instance where the most onerous facts imaginable should lead to the durable affirmation of constitutional principle, as Skokie did. Instead, President Obama and his advisers have opened the door to violent action against American citizens by future Presidents when the facts may be much less compelling.
Last March, Eric Holder, the Attorney General, delivered an address at Northwestern University in which he sought to explain and justify the Awlaki killing, without ever naming the victim, apparently because such honesty would violate the Administration’s classification rules. Holder’s arguments are worth absorbing at length. He explained,
"Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad. Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted. But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens—even those who are leading efforts to kill innocent Americans….
An individual’s interest in making sure that the government does not target him erroneously could not be more significant. Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks….
Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles."
It would be difficult to list all of the ways in which Holder’s arguments are disturbing. Overall, the large-scale targeted killing of non-Americans affiliated with Al Qaeda during the Obama Administration’s first term raises many questions about legality and transparency. The more recent addition of Klaidman’s reporting, however, calls attention to one area, infrequently discussed, where it seems clear that the Obama Administration has driven right through a constitutional stop sign. This involves the second of Holder’s three conditions for killing a U.S. citizen who has joined Al Qaeda and is actively planning to kill Americans—that is, “capture is not feasible.”
Klaidman’s reporting suggests the title of his own book may be misplaced. “Kill or Capture” conjures an image of Obama and his counterterrorism advisers holding one anguished debate after another about whether to immolate terrorism suspects with Predator drones, as they did Awlaki, or send in Special Forces or local militias to capture the accused for trial. In fact, the book makes clear that the Obama Administration has judged again and again—almost routinely—that capturing terrorist suspects outside of Afghanistan (where there is a friendly host government and an extensive prison system) is not feasible.
According to Klaidman, Obama’s advisers have concluded, for example, that the risk of creating political turmoil in Yemen is reason enough to avoid attempting an arrest there by, for example, landing Special Forces on the ground—as if Yemen were not already in a state of perpetual turmoil.
Protecting American soldiers from potential death or injury during a risky capture operation is a second reason it was judged better to kill Awlaki by remote control. Of course, soldiers should not be placed at unreasonable risk if there is no way to deploy a force that can protect itself during a capture attempt. Surely, however, Special Forces commanders would regard the defense of American constitutional rightness as reason to shoulder at least some physical risks, just as American police officers routinely place themselves at risk by patiently surrounding an armed, defiant murder suspect’s house. They attempt to talk the suspect into surrender, even when it would be safer for the police themselves just to blow the house up.
Even more disturbing is the evidence in Klaidman’s narrative suggesting that the Obama Administration leans toward killing terrorism suspects because it does not believe it has a politically attractive way to put them on trial. Federal criminal trials of terrorist suspects draw howls of protest from many Republicans, even though the George W. Bush Administration successfully prosecuted a number of high-profile terrorists in federal court. Military commissions, the Obama Administration’s reluctantly endorsed best-of-the-bad alternative to federal trials, are unpopular with civil-rights activists and European allies, for good reason, because of their relatively weak protections for defendants. But is political discomfort about this choice of trial venues a reason to override the Fifth Amendment, in the case of a targeted American citizen like Awlaki? Doesn’t the case-by-case application of the due-process clause require some extraordinary finding by the president that capture is not possible? Shouldn’t there be a bias in operations, when an American citizen is involved, toward making an arrest?
“Come out with your hands up” may have been Hollywood’s whitewashed reimagining of how sheriffs warned suspected killers to surrender and face trial in the Wild West, or how G-men warned barricaded bank robbers to give up before they met death. Yet the words became cliché for a reason: they had the ring of justice even in the midst of tense scenes ridden with risk and the possibility of sudden violence.
“To me, the weakness in the drone activity is that if there’s no one on the ground, and the person puts his hands out, he can’t surrender,” the retired vice-chairman of the Joint Chiefs of Staff, General James Cartwright, told the journalist Tara McKelvey earlier this year. “What makes it worse with a Predator is you’re actually watching it. You know when he puts his hands up.”
Holder and other Obama Administration legal hands have told Congress that they are convinced, after repeated reviews of classified evidence about targeted terrorism suspects, that the Obama Administration’s secret process for placing Al Qaeda leaders and operatives on death lists is careful, legal, and sound—even though a number of cases of mistaken targeting have been documented publicly.
None of Obama’s legal advisers has testified similarly about what secret system and classified legal memos may exist for judging, in the case of an American citizen targeted overseas, whether and why a capture attempt may be feasible. Congress has the power to force such statements onto the public record. It must try; it is obvious by now that the Obama Administration will not volunteer them. Is “kill or capture” a policy, or are the words just a screen for politically convenient targeted killings?