Anwar Al-Awlaqi was a barbarian. There is no doubt about that. He ascribed to a hateful, militant Qutbist ideology that regarded non-Muslims, women, and all who did not hold similar extreme views as expendable, subhuman pawns. Awlaqi had no qualms about mujahedeen killing civilians, be they men, women, or children. And there is ample evidence to show involvement, at various levels, with the Fort Hood shooting and the “Underwear Bomber.” In addition, he demanded the death of various “infidels,” such as Molly Norris, through his online sermons.
Because of all this, I shed no tears for Awlaqi. His killing at the hands of the United States government stirred no sadness in me. The man was a cancer upon the world.
Yet despite my less than fond feelings for Awlaqi, I cannot say I remain entirely comfortable about the constitutional haze under which his death was orchestrated. And the recently leaked DOJ white paper outlining the legality of killing American citizens abroad under certain conditions leaves me even more uneasy.
According to this white paper, the U.S. government is constitutionally justified in killing a U.S. citizen abroad if “an informed high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States” AND capture is infeasible but the United States continues to monitor whether capture becomes feasible AND the operation is conducted consistent with the fundamental principles of the laws of war governing the use of force.
The paper goes on to define an imminent threat as an “operational leader of Al-Qa’ida or an associated force” who “is personally and continually involved in planning terrorist attacks against the United States.”
The potential for authoritarian, illiberal abuse oozes from the ambiguity and inefficiencies of this reasoning.
First of all, the idea that only one high-level official is the necessary minimum to deem someone an imminent threat and deserving of a death sentence is a bit disconcerting. Furthermore, what does the DOJ define as an “informed, high-level official?” It never expounds on this. One would think more consensus is necessary to prevent abuse and error in this situation. We’re talking about the life of an American citizen here for crying out loud.
And what about this definition of “imminent threat?” How relevant is it to the growing reality of Al Qaeda and its “associated forces?” As numerous analysts and observers have pointed out, Al Qaeda is becoming less a hierarchical organization and more a decentralized group of autonomous actors—it’s evolving more into an ideology and name brand, a set of principles that can be violently enacted only by a few individuals of no traditional terrorist group affiliation. Where does one rank as a member of such a phenomenon?
Another troubling aspect of this white paper is its seeming dismissal of state sovereignty. As an example of abiding by the rules of war during such targeted killings, the authors suggest that the strike would be legitimate if it was conducted “with the consent of the host nation’s government or after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted.” So in other words, the United States is justified in carrying out strikes in a foreign country whether the state consents or not. Don’t get me wrong—I’m not one to hold state sovereignty sacrosanct. I think it’s a concept that often holds too much sway in the international arena, especially during cases of humanitarian crisis and genocide. But, far from the text of R2P, the bounds of where state sovereignty is legitimate versus where it can be overruled seem far from clear if recognized as existent at all.
If the reasoning behind these arguments in justification of executive extrajudicial killings seem familiar to you it’s because, simply put, it’s basically the same legal and philosophical thought used by the Bush administration to justify policies like preemptive war and habeas-corpus-free military detention.
But the fault lies not entirely nor mostly at the feet of President Obama nor the Bush administration—though degrees of fault do lie to varying extents with these players. The main fault, however, is not that of any one individual but an institutional one. This is a failure of our political system and its institutions.
In past eras war was conducted by state militaries and militias on battlefields where parties vied for geographical dominance. In our current age, however, war has morphed into asymmetric battles involving non-state actors who straddle the line between enemy soldier and career criminal. This is why the DOJ white paper justifies the government’s actions both in military terms—stating that the “Supreme Court has held that the military may constitutionally use force against a U.S. citizen who is part of enemy forces”—and criminal law—arguing the fourth amendment is not violated in these killings because a police officer is allowed to use deadly force “to prevent escape” of a suspect when he/she “threatens [an] officer with a weapon or there is probably cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm.”
But the battle against Al Qaeda and jihadism is not being primarily waged on a traditional battlefield against a traditional army. Nor is this ideological battle being waged between police officers and criminal suspects. Our reality has evolved. It’s become more complex. And we must adjust.
These non-state actors are a changing reality that cannot be addressed by our outdated paradigms of military legalese or criminal justice—the former’s limitations threaten the liberty of our society while the latter’s limitations threaten its safety.
Therefore we must create a new way. We must create new institutions and legal guidelines to address this threat in a way that both insures our security while safeguarding our liberties from state abuse. For example, Indiana University Law professor Gerard N. Magliocca suggests “that Congress create a statutory regime for such decisions that would require the National Security Council to sign off on each of these citizen attacks before the President can proceed.”
Instead we have been left with an archaic unimaginative government more concerned with bickering amongst itself than in addressing the challenges in front of it. Instead we get an executive that has taken the “quick and easy path” (as Yoda would put it) and embraced almost unencumbered executive power over the option of hard-fought substantive institutional change. And neither security nor liberty is best served in that.