Rethinking Drone Strikes on Americans
Yes, I've been part of a "fire away" crowd. I agreed with Charles Krauthammer 's view that "once you take up arms against the United States, you become an enemy combatant, thereby forfeiting the privileges of citizenship and the protections of the Constitution, including due process. You retain only the protection of the laws of war — no more and no less than those of your foreign comrades-in-arms." However, given Sen. Rand Paul's filibuster of John Brennan's nomination to be our next CIA director, which ended after 13 hours, I've reconsidered my view on the subject. Furthermore, it exposed my own shortcomings when it comes to my advocacy for adhering to constitutional principles.
I recently said that the strike on Anwar al-Awlaki, an al-Qaeda propagandist and talent recruiter, was "legitimate." While there may have been enough evidence to convict al-Awlaki of treason, which would have stripped him of American citizenship, he was never put on trial – even in abstentia– by a U.S. court. I'm not defending him, or weeping over his death, but giving the Executive branch the power to kill Americans without due process is disturbing.
At times, my passion can get in the way. Al-Awlaki was a bad guy, who promoted jihad against the United States, but the legal framework used to justify his demise isn't honest. As Kevin D. Williamson at National Review wrote last month, it's not clear if al-Awlaki took up arms against us. The FBI didn't deem him a serious threat. He was cleared of any involvement in the planning of the 9/11 Attacks, and was invited to the Pentagon for dinner as part of "Islamic-outreach efforts." He even led prayers at the U.S. Capitol.
Williamson added that the parameters in which one could get their name on the "kill list" are also flawed.
Abdulmutallab [would-be 2009 underpants bomber] had sought out al-Awlaki in Yemen, and al-Awlaki had blessed his bomb plot and had even introduced him to a bomb-maker.
That, according to the Obama administration, is what justified treating al-Awlaki as a man-at-arms, earning him a place on the secret national hit list.
If sympathizing with our enemies and propagandizing on their behalf is the equivalent of making war on the country, then the Johnson and Nixon administrations should have bombed every elite college campus in the country during the 1960s. And as satisfying as putting Jane Fonda on a kill list might have been, I do not think that our understanding of the law of war would encourage such a thing, even though she did give priceless aid to the Communist aggressors in Vietnam. Students in Ann Arbor, Mich., were actively and openly raising funds for the Viet Cong throughout the war. Would it have been proper to put them on kill lists? I do not think that it would. There is a difference between sympathizing with our enemies and taking up arms against the country; there is even a difference between actively aiding our enemies and taking up arms against the country, which is why we have treason trials rather than summary execution.
If al-Awlaki was engaged in a firefight with U.S. troops, then he's fair game. However, he was on the side of a road eating breakfast. Yet, there's also the other side who argue that targeted killings can be legal. If al-Awlaki was planning an attack, then his demise in 2011 would've been legal.
Deborah Pearlstein wrote in Slate on February 8 that:
The white paper says that the president has some power to use force as part of his “constitutional responsibility to defend the nation.” Indeed, the Supreme Court has recognized that Article II of the Constitution gives the President at least some authority to, as the framers put it, “repel sudden attacks,” without having to go to Congress first for permission—in other words, to play defense in the moment. It’s not hard to imagine an argument that the government targeted U.S. citizen Anwar al Awlaki in Yemen because of a discovery that he was about to launch a particular, sudden attack.
But the paper doesn’t actually make that argument. It’s not just that al Awlaki goes unmentioned. So does Article II. And true enough, the administration has been at pains, in court challenges to its detention power at Guantanamo, to avoid resting its claim of authority on the president’s constitutional power alone—precisely because such claims of authority can be overly broad.
Perhaps another tack, then? There’s also the Authorization for Use of Military Force [AUMF], passed by Congress in 2001, which gives the president the power to use “all necessary and appropriate force” against the organizations responsible for the 9/11 attacks. Since 2001, Presidents Bush and Obama, the Supreme Court, and Congress have all said this “necessary and appropriate force” includes the power to detain, even the power to detain American citizens picked up in Afghanistan. The same logic by which all three branches of government have agreed the law authorizes detention—because detention is a necessary incident of war—supports the argument that it authorizes lethal targeting as well.
But as the executive, Congress, and the courts have also recognized, the power granted by the AUMF only extends as far as what is allowed by the international laws of war. And there are a lot of those laws. For now, let’s just take one of them, and for the sake of argument, state it in a way that gives the administration the widest possible latitude for targeting. According to the relevant treaties, and the International Committee of the Red Cross (the world’s most recognized interpreter of the law of war), members of organized armed groups that do not represent states may be targeted in war either if they are directly participating in hostilities when they’re targeted, or if it was their “continuous function” to prepare for, command, or take part in acts that amount to direct participation in hostilities.
Pearlstein wrote that al-Awlaki could've been included in this "continuous function" portion of this law, which would have permitted his killing. However, the DOJ White Paper never mentioned this, which is why there are so many questions.
Joseph Klein reiterated AUMF as a justification in his column for FrontPageMag.com on October 5, 2011, and adds that if al-Awlaki had presented himself to U.S. Courts via our embassy in Yemen – he would've been protected from lethal force. He didn't.
The price of failure in capturing American-born persons of interest is high. If they escape, they become harder to find, and can continue to plot attacks against America. I'm for the drone program. I'm for killing high-level al-Qaeda targets, but if they're American citizens, and they're not posing an imminent threat at the time, it should be incumbent upon us to capture, detain, and place them on trial.
Our Constitution was meant to constrain government, and to ensure that certain rights can never be suspended by a usurpatory government. A president assuming the power of judge, jury, and executioner is an awesome power, and one that doesn't have any congressional oversight as of late.
As I've said before, there are legitimate arguments for both sides, but the DOJ White Paper fails in making the case for legal targeted killings against American citizens abroad. As Sen. Rand Paul asked on the Senate floor, what are the limits of presidential power? Furthermore, Sen. Paul said that we know little about some of the people on these kill lists. Concerning the president's authority to use drone strikes on American citizens within the United States, the answer should be definitely no.
What's more disturbing is the fact that liberal Democrats seem content with this campaign. After all, we had a conservative Republican lead this filibuster effort. If this was George Bush, articles of impeachment would've been brought up. However, while some in the media don't seem to be willingly to admit their failure in reporting Obama's hypocrisy, I'm more than prepared to say that I was wrong in my support of killing American citizens abroad without due process.
The War on Terror has plunged us into new areas of warfare and legal theory, but we cannot forget the principles we're fighting for in our conflict with al-Qaeda. What good is our Bill of Rights if we decide to shred it for a quick kill on one of our fellow citizens? Even the most despicable American deserves the right of due process under the law. John Wayne Gacy, Ed Gein, and Jeffrey Dahmer, some of the most depraved Americans to ever be processed under our justice system, all received a fair trial upon their arrest. Future American terrorists deserve the same treatment. Our Bill of Rights was never meant to be applied to citizens on a case by case basis.
As Williamson wrote today in National Review, the "War on Terror" is not conventional, and requires a myriad of tools, such as law enforcement, intelligence gathering, and military operations, in order to wage it. He also added that the "battlefield is everywhere" mindset shouldn't be taken literally, and brings us to a place that is in direct conflict with our principles about the freedom and liberty codified in our Constitution. Let's be smart about this.
Al-Qaeda and its sympathizers are savages who will kill when and where they can; they could strike anywhere, but it does not follow that everywhere is therefore a field of battle subject to the law of war. The Museum of Modern Art and the Mall of America might be possible targets for terrorists, but martial law is not in effect in those locations, nor should it be.
If your government can put you to death without trial — not on the field of battle, but at breakfast — then you are not a citizen at all: You are a subject. And Americans were not born to be subjects.