The Obama administration recently acknowledged its responsibility for the deaths of four American citizens overseas, officially confirming what those who pay attention to such things have known for a long time. Though this provoked pockets of outrage here and there, the outrage never reached the levels generated by, say, the Bush administration’s decision to invade Iraq or engage in “enhanced interrogation techniques”, as one would have certainly expected them to; especially considering the ramifications of the executive branch taking on such an awesome power — the power to end an American’s life without due process — one that had until recently been denied all three branches of government since their inception 200 plus years ago, or so it was commonly understood. And while the fact that it didn’t bring about the same outrage is troubling, more troubling still is the defense and rationalization of what should be an obvious perversion of centuries of Western legal precedent and the rule of law. I say “should be obvious” because the White House has a crack team of “constitutional” lawyers that have assured the American public (not in writing, but through press conferences), and Barack Obama himself, that this unprecedented power was buried in the Constitution the entire time, only waiting to be discovered now, in the early 21st century. So there is some disagreement here I suppose, and the opinion of we dissenters is just that, an opinion. So be it. Then in the interest of resolving this mere “difference of opinion”, let us dissenters engage the apologists on their own ground. Let them satisfactorily address a few logical questions and concerns, so that the soundness and morality of their position might become obvious to all. And if they cannot address them, then let them admit the mistake, cease supporting such policies, and demand accountability.
This article will restrict its scope to the assassination of Anwar Al-Awlaki — which no one disputes was an assassination — because the principle behind Awlaki’s assassination, if it fails to hold true in his case, calls into question the legal basis for all targeted assassinations/lucky breaks/collateral damage that have taken place in the Middle East – outside of Afghanistan and Iraq – within the last decade, American citizen or otherwise.
1.) What legislative act exists that authorizes/declares a state of war between the United States and the “Terrorists”?
“Let me repeat that – not only did Congress authorize the use of force, it is briefed on every strike that America takes.” – Barack Obama, May 23 2013
We have been assured that because a state of war, authorized by Congress, exists between the United States and “Terrorism” – a term largely devoid of meaning but devastating in application – that the assassination of Anwar Al-Alwaki was legal. Fair enough I suppose. But what constitutionally mandated legislative act has authorized this multi-continental war, which must necessarily exist to justify the legality of said assassination? The closest thing anyone can come up with is the Authorization for the Use of Military Force – the applicable statute reading…
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Read closely. The President is authorized to use force against nations, organizations, and so on, that were involved in some capacity in the 9/11 terrorist attacks, in order to prevent future acts of terror. It does not say, the President is authorized to use force to prevent future terrorist attacks. Meaning – Only those parties involved in 9/11 are fair game. Not convinced? Let’s simplify it….
“The Sheriff is authorized to use all necessary and appropriate force against persons who robbed the Main Street Wachovia Bank, in order to prevent any future bank robberies by such persons.”
…Only those parties involved in 9/11 (the bank robbery) are fair game. And those people are all dead. Or captured. By the government’s own admission, no evidence exists linking Anwar Al-Alwaki to the 9/11 attacks. So again, what legislative act exists authorizing the war under which this assassination can be classified as legal?
2.) What’s an “enemy combatant”?
For the Obama holdouts among us, The Obama administration has already answered this question – they’ve abandoned the designation. In context of the supposed “War on Terror”, there is no such animal. So the ‘enemy combatant’ designation, as it pertains to assassination, justifies nothing, at least not according to the current administration. Also relevant, from the same DOJ memo…
“the government bases its authority to hold detainees at Guantanamo on the Authorization for the Use of Military Force, which Congress passed in September 2001, and which authorized the use of force against nations, organizations, or persons the president determines planned, authorized, committed, or aided the September 11 attacks, or harbored such organizations or persons.”
So it is the AUMF that the Executive Branch believes authorizes their actions. This is also confirmed by Eric Holder’s address to Northwestern University Law School here. But we’ve been over this. The AUMF authorizes no such thing.
3.) Does the principle hold true from all frames of reference?
Let’s change the geography. Say Anwar Al-Alwaki joined up with an Al-Qaeda cell in Germany instead of Yemen. And, for the sake of argument, let’s say they refused, or were incapable of giving him up. Al-Alwaki is at the local bakery – would striking the bakery with a Hellfire missile be “legal” without the consent of the German government? Would it be legal even with its consent? No. The citizens of Europe would never tolerate such an act. The entire continent would be outraged. Rest assured, it’d be the last American Drone strike on European soil. And rightfully so.
There’s only two conditions that would render such a strike “legal”. Either A.) Al-Alwaki, or whomever, would have to be actively committing an act of terror and could not reasonably be stopped through other means (e.g. shooting down a hijacked airliner) or B.) a state of war must exist between the United States and Germany. If neither of those conditions are met, Al-Alwaki can only be legally pursued via police action.
But no state of war exists between the United States and Yemen. So in terms of war, both Germany and Yemen are under the same legal status – hence, assuming Al-Alwaki isn’t running around downtown Berlin with a bomb strapped to his chest, if it wouldn’t be legal to assassinate Al-Alwaki via drone in Germany under current conditions, then it cannot be legal to do so in Yemen either. Clearly, the principle doesn’t hold true in all frames of reference. Meaning, it’s not a principle at all, which it must be to be legal. How to resolve this paradox?
4.) Assuming for a moment that the Assassination of Anwar Al-Alwaki was legal – that the assassination of American citizens is legal – would we be comfortable with this power resting in the hands of anyone who could potentially be elected President of the United States? And if so, what controls/oversight exists to protect the American people from potential abuse?
5.) Again, assuming the Assassination of Anwar Al-Alwaki was legal – what, exactly, changed to make it legal?
Prior to the reign of the previous and present administrations, it was universally understood in this country that the assassination of American citizens was illegal. This evidenced by the widespread contention in the media and elsewhere that Al-Alwaki’s assassination was unprecedented, by both, those who supported the action and those who didn’t. Indeed, at one time it was even illegal for the CIA to assassinate anyone, American citizen or otherwise, at all.
“No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination” – Executive Order 12333 (2.11), enacted by Ronald Reagan
We’ve ruled out the AUMF. The Executive Order cited above hasn’t been rescinded. And no one can cite any changes in the laws governing assassination. But clearly, something has changed. And if the law hasn’t changed, then it must necessarily be that those laws have been reinterpreted to mean something they didn’t mean before. The question becomes – who reinterpreted them and by what authority did they do so? The answer to the first half of that question is easy – the unelected lawyers acting on behalf of the Bush and Obama administrations reinterpreted them. The second part is more difficult. Lawyers are not legislators, so what mechanism exists that permits them to reinterpret the law in a way that now enables what the law expressly prohibited before? If such a mechanism does exist, are these unelected men and women not de-facto legislators? And if so, is this not an entirely different system of governance than was established by the ratification of the United States Constitution 200+ years ago? And, most importantly, is this newfound executive and legislative power worthy of our support?