License to Kill?

License to Kill?

After 9/11, it’s less controversial to kill a suspect in cold blood than to hold him in preventive detention.

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On April 6 the New York Times reported that the Obama administration had approved the targeted killing of an American cleric, Anwar al-Awlaki, who is suspected of encouraging and planning terrorist attacks against the United States. The news that the president had decided to kill an American without charges, without a jury, without a lawyer and without a trial has thus far stirred relatively little outcry. By contrast, President Bush’s assertion of the power to detain two Americans without trial–Yaser Hamdi and Jose Padilla–led to two Supreme Court cases and thousands of news articles, op-eds and talk-show debates. On April 13 the Washington Post editorial board defended the targeted-killing policy–even though we know precious little about its asserted legal justifications or scope.

In our peculiar post-9/11 world, it is apparently less controversial to kill a suspect in cold blood than to hold him in preventive detention. The Post reported on February 14 that the Obama administration has killed many more suspected terrorists than it has captured. According to National Journal, Obama ordered more drone attacks in his first year than President Bush did in two full presidential terms. The Post article suggested that the two developments may not be unrelated. A dead suspect, after all, has no right to habeas corpus; and with a dead suspect, one need not agonize over the choice between civilian criminal court and a military commission.

But surely this has it backward. The argument for preventive detention during armed conflicts has always been that since the army is authorized to kill an enemy combatant, it must be permitted to take the lesser step of detaining him for the duration of the conflict. If so, shouldn’t we be at least as concerned about executive killing as we are about executive detention?

Wars involve killing, of course, but the scope of the current armed conflict and the identity of "combatants" have both been hotly disputed. International humanitarian law requires that the state target only combatants, not civilians who are not directly participating in the conflict; that any use of force be proportional; and that collateral damage be limited. And certainly where an enemy combatant can be captured rather than killed, the government should be required to pursue that avenue. These principles ought not to vary whether the state is targeting citizens or foreign nationals. If a person is aiming a weapon at a US military convoy on the battlefield, convoy members need not check his passport or provide him a hearing before shooting to kill.

Awlaki, however, is nowhere near the battlefield. He’s said to be hiding out in Yemen. He’s not aiming a gun at US forces. On the other hand, he should not be mistaken for an innocent bystander. American counterterrorism officials accuse him of recruiting people for terrorist plots against US targets. And he has been linked to three of the 9/11 hijackers; to Nidal Hasan, the US Army psychiatrist who killed thirteen and wounded thirty in a mass shooting at Fort Hood in November; and to Umar Farouk Abdulmutallab, the would-be Christmas Day bomber–although in each instance the alleged ties appear to focus more on vague communications than on any concrete criminal activity.

It may be that Awlaki fits the definition of a "belligerent" who can’t be apprehended and is therefore a proper target in this armed conflict. But the American public just doesn’t know. Are we simply to trust our government to make the right call? That’s what the Bush administration argued about the men in Guantánamo–yet more than 500 of them have been released, suggesting that they were not, as claimed, "the worst of the worst." Unlike a detainee, a dead man cannot be released when the government realizes it has made a mistake.

More troubling, the public doesn’t even know what the Obama administration’s legal theory is for targeted killings. State Department legal adviser Harold Koh provided very general outlines in a speech in March before the American Society of International Law, but his speech was short on specifics. The program is undoubtedly predicated on a detailed memorandum from the Office of Legal Counsel, setting forth the legal arguments that are said to justify the action, the statutory or constitutional authorities relied upon, the criteria for targeting and the procedural safeguards established to minimize mistakes. The ACLU has requested the documents under the Freedom of Information Act, but so far the administration has declined to disclose them. It may well be that the details surrounding a particular target need to be classified in advance, but there is no reason that the government should not be transparent about the legal framework and procedural protections it has adopted. A democracy that permits its president to adopt wholly secret procedures and secret authorities for killing its own members violates the very rule-of-law ideals that President Obama promised to uphold.

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