After Anwar al-Awlaki, an American-born imam in Virginia, took his family to his ancestral home of Yemen, U.S. security agencies say, he became part of a terrorist organization. He was not arrested, charged or arraigned. He never saw evidence against him. The CIA killed him in a drone strike.
The government decided citizens had to die to maintain the security of other citizens. And it was done.
With the release of a Justice Department memo (PDF) on Monday, the public gets to see the legal rationale — or much of it — for these extrajudicial killings.
When is it acceptable for the United States to kill an American citizen?
Who decides what constitutes an “imminent threat?”
How do you pursue individuals plotting against the United States when you are not at war with the country where they live?
We consulted a panel of experts for the Inside Story.
Inside Story: What does the Obama administration’s memo on the justification for killing Americans tell us?
Michael Boyle: Well, this memo tells us that the Obama administration can target an American citizen if it considers the capture of that citizen unfeasible and it believes that citizen is an imminent threat. There are a number of different problems associated with what is considered imminent and what is considered feasible.
What are those problems?
A couple of things that are important to know here: It does not state any standards of what is feasible and not feasible. They are using flexible language to give them leeway. They are saying if capture is unfeasible or the risk to U.S. troops is too high. It appears to open a door to more targeted killings than any U.S. government should do.
The other problem is how vague “imminent” is. They do not define what “imminent” is. It can be based on their subjective standards of what is an imminent threat. That is a very large door for people to walk through.
It also authorizes the CIA to engage in killings based on the “public authority” of the U.S. government. A soldier is not liable for war crimes for using lethal force in a war because he is part of a war authorized by the U.S. government. This moves the CIA into that category. It legitimizes the CIA’s paramilitary role.
What about the argument that the U.S. has few options when dealing with stateless actors in territories where governments lack adequate control?
Absolutely. People like Anwar al-Awlaki would not be found in a place where you can easily capture and try them. You cannot conduct and try every terrorism case as you would like a criminal case. You would not get the kind of evidence that would pass muster in a criminal court, you could reveal tactics and sources, and it is hard to access people like that.
The problem is that the administration’s rationale is too broad. There might be an argument for drone attacks in some very limited cases. The danger here is that the administration has opened up a door with this ruling that would be hard to undo. They could walk it back, but now it is out there and does not prevent future presidents for using this in cases less compelling than Awlaki.
What does this memo tell us?
David Samuel Sedney: This is a situation where these people have made it very clear their intention is to kill Americans and attack the United States. It has happened before. The president has a responsibility to protect the American people. What he is doing here is fulfilling that responsibility.
Some people say that “feasible,” in terms of ability to capture a militant, and “imminent,” in terms of the immediacy of the threat posed, are so vague as to be open to overinterpretation.
I would say rather than it being vague, it is still really hard. The choices that any president has to face between taking the risk that further attacks on the U.S. and attacks on American citizens might occur in the future, in terms of the cost to American lives, legal issues involved and American prestige — all of these are things that have to be weighed here. But the record of this administration is very good. The criticism on the other side would be that if he did not do this and attacks were carried out, then he would be under attack for not doing what was needed.
Killing Awlaki’s son falls under that category too?
The people who are killed as part of this — again, this is a situation where we are at war. The president is protecting the American people. There is collateral damage in war. The president is responsible for limiting collateral damage. Without getting into the specifics of the individual cases, I think their record is really good.
What do you make of the argument made in this memo?
Hina Shamsi: Well, the government’s argument is important both for what it says and what it does not say. With respect to what it does say, it claims lawful authority to carry out the targeted killing of a U.S. citizen, acknowledging that this is far from a traditional law of war, and then determines when an international law of war does or does not exist. That is dangerous because without the commencement of official hostilities, you open the door for our government and other governments to carry out killings when there is not a war.
Just as important are things that are not included in the memo. We know from a previous leaked white paper that the administration is relying on the “continuing imminent threat” to justify these killings. That is quite clearly not the standard under the law. One would like to see under what standard that would apply or not. In the unredacted part of that memo, that concern is not present. Killing will only be carried out if capture is not feasible. But there is no discussion of what constitutes feasible.
Taken as a whole — the administration presents a very broad justification for killing U.S. citizens without territorial or temporal limitation. That is for U.S. citizens. We do not know what the standard is for non–U.S. citizens.
Can you tell us anything that led to the process that led to the release of this memo?
This is a memo that we and The New York Times have been seeking and fighting for in the courts for a number of years. The release of this memo is long overdue. To reduce arguments to their essentials — it was to challenge what one court has recognized as a propaganda campaign by senior public officials to persuade the public that the targeted killing program was lawful, effective and wise, while withholding the justification for those killings. In this case, the court ruled with us.
When you have stateless actors operating in countries with weak governments that view themselves as constantly at war with the U.S. and plotting attacks against Americans, some people believe unconventional methods need to be part of the response. What is the appropriate military response that the U.S. should employ?
The notion that we or any other country is in a perpetual state of war against vaguely defined threats that do not appear to be likely to happen even in the immediate future is a very dangerous proposition.
International law and our domestic law recognize that in exceptional circumstances, the government has authority to use lethal force. We recognize that in actual armed conflict.
We also recognize that outside of armed conflict, lethal force may be permissible if there is a specific imminent, lethal threat. There must be legal safeguards in place to prevent mistaken killings, innocent bystanders. Those kinds of safeguards are critical. What we also have is the implementation of these killings based on a secret standard, and these are determinations that can be unilaterally made by executive branch individuals, including intelligence officers. If there is anything we should have learned from past decade — we cannot rely on intelligence officers alone making decisions about life and death.