License to Kill

Some background—and some questions—on the Anwar al-Awlaki authorization

The recent news that the Obama administration has authorized the CIA to kill the radical Muslim cleric Anwar al-Awlaki raised some eyebrows, and for good reason. Awlaki has been linked to the Fort Hood shooter and the Christmas Day bomber, and he has allegedly taken on an operational role in the branch of al Qaeda that operates in Yemen, where he now lives. He is also a U.S. citizen, born in New Mexico, and thus—one might have thought—entitled to the due process protections that come with citizenship.

This news, on the one hand, wasn’t entirely new: it had already been publicly reported that Awlaki and several other American citizens have been deemed legitimate targets by the U.S. government, albeit from the barrel of a different gun. On the other hand, we’re still in the dark when it comes to several key questions—What is the process by which citizens may be targeted? What are the limits on that power? Are there limits? And what is the legal justification for the extrajudicial killing of citizens?—and we need the media to press for some answers.

Way back in December 2002, according to a CBS News piece by Sue Chan, U.S. officials were asserting that “American citizens working for al Qaeda overseas can legally be targeted and killed by the CIA under President Bush’s rules for the war on terrorism.” That authority, according to those (unnamed) officials, stemmed from a secret finding signed by Bush after the 9/11 attacks that authorized covert attacks on al Qaeda worldwide. According to Chan, the officials said that “the authority makes no exception for Americans, so permission to strike them is understood rather than specifically described.”

By that time, at least one American citizen, Kamal Derwish, had been killed in a Predator drone attack in Yemen. But Derwish was not a target of that attack, at least not officially. And despite the assertion of authority, it doesn’t appear, from a review of the press coverage, that the Bush administration actually did place American citizens on “kill or capture” target lists. (Much of the coverage on this issue has been linked by Firedoglake’s Marcy Wheeler, The Atlantic’s Max Fisher, and Salon’s Glenn Greenwald, who all provide further insights.)

By late January of this year, though, we knew that individual American citizens had been authorized as targets by the government. That’s when The Washington Post’s Dana Priest reported that in the wake of a Dec. 24 strike against a Yemeni compound Awlaki “has since been added to a shortlist of U.S. citizens specifically targeted for killing or capture by the JSOC [Joint Special Operations Command],” a clandestine military unit with an increasing role in covert operations. That list included two other Americans, who were not named, Priest reported.

Priest’s story also claimed that Awlaki and three other Americans were on a separate kill/capture list maintained by the CIA. That claim was subsequently retracted, but the claim about the JSOC’s list of U.S. citizens stood. And, only a few days after Priest’s article, Greg Miller—then of the Los Angeles Times—wrote a detailed and well-sourced story about the CIA’s efforts to get authorization to go after Awlaki, authorization which has now been granted. (Miller, now at the Post, wrote that paper’s coverage of this week’s news.) And only a few days after that, Dennis Blair, the director of national intelligence, went before Congress and talked about the circumstances in which the government might use lethal force when targeting an American citizen.

In other words, we knew years ago that the U.S. government had asserted the authority to target citizens in counterterrorism operations. And we knew a few months ago that a military unit, the JSOC, had been specifically granted authorization to target Anwar al-Awlaki; that the CIA was seeking it; and that top government officials were talking publicly, if vaguely, about these powers. All we learned this week was that the CIA now has this authorization, too.

But what we don’t know yet are the answers to all those other questions above, about how this process works and what the constraints on it are. And most importantly, we don’t know the answer to the question raised yesterday by Spencer Ackerman of The Washington Independent: “Why Is It Legal to Kill Anwar al-Awlaki?”

The responses offered to date by the Obama administration and other government agencies are comically feeble, or would be if the matter weren’t so serious. Blair told Congress back in February that the intelligence community would require “specific permission” to kill an American. Officials told the Post this week that adding Awlaki to the CIA list “required special approval from the White House.” Reuters and the Times were a little more specific, noting that approval was required from the National Security Council.

Specific permission, special approval—this amounts to the government saying, “Trust us; we thought really hard about this one.” It seems insufficient, to put it politely, as an explanation for why it is now possible to sweep aside what National Review’s Kevin Williamson aptly calls “a bright line on the political map.” Actually, it seems not so far removed from the sardonic explanation offered by CBS’s legal analyst Andrew Cohen, back in 2002, paraphrased by Chan as: “this is legal because the President and his lawyers say so—it’s not much more complicated than that.” That seemed to be the operating principle for a lot of things around that time, of course, many of which haven’t worked out so well.

Williamson’s post adds another valuable point: the need for more information, and a better understanding of what this policy actually means, is distinct from the question of whether we should be targeting Awlaki. If he is as dangerous as we’re being told—a big if—there are colorable arguments that he should be a target, and perhaps even a target of lethal force. But there is a tremendous risk that in adopting an ad hoc, undefined process to deal with him, as opposed to the broader legal and moral challenge of homegrown terrorism, we are heading into dangerous territory. “Awlaki is an unusual case now, but he may not be in the future,” says Karen Greenberg, executive director of NYU’s Center on Law and Security. Will others be targeted? If not, why not? If there are limits on this power, how will they be maintained? Answers to these questions haven’t been articulated. It’s not even clear that they exist.

We shouldn’t have any delusions about the prospects for Congressional oversight here. We also shouldn’t have any delusions about press miracles in the face of a unified executive branch and a deferential judiciary: Ackerman wrote yesterday that he would be “spending [his] morning filling out FOIAs,” which is absolutely the right thing to do, but also unlikely to yield any short-term success.

But the press can, at the least, maintain pressure on the Obama administration, and make clear its obligation to defend, define, and explain this policy. It’s not an encouraging sign that a day after the stories on the CIA authorization appeared, there was no follow-up coverage in the Times or the Post. Before this becomes the new normal, we need the press—not only the civil libertarians in the blogosphere, and not only some fairly well-known independent reporters like Ackerman, but the news and editorial pages of our few remaining heavyweight institutions—to do its job. That means asking the government, repeatedly: Just what is the Awlaki standard, and why is it consistent with our traditional understandings of the rights of citizenship, the laws of war, and the rule of law?

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Greg Marx is an associate editor at CJR. Follow him on Twitter @gregamarx.