License to Kill, Part II

Waiting for coverage of the al-Awlaki standard

On April 6, government officials let it be known that the CIA, like the military’s Joint Special Operations Command, has been authorized by the White House to capture or kill Anwar al-Awlaki, a radical cleric who is alleged to have assumed an operational role within Al Qaeda in the Arabian Peninsula, the group’s branch in Yemen. In the wake of that revelation, Campaign Desk implored the media to demand that the administration explain why it is legal to target al-Awlaki, a U.S. citizen who was born in New Mexico, without recourse to the traditional rights of due process, or any publicly defined alternative framework. So in the week since then, how’s the media done on this score?

Let’s start with the good stuff. On Tuesday, Newsweek’s Web site published an op-ed by Gregory Johnsen, a former Fulbright Fellow in Yemen, about the targeting of al-Awlaki. Johnsen mostly sidesteps the legal issues (though he does refer to the prospective killing as a “potentially legal assassination”). Instead, he attacks the logic behind the effort, arguing that al-Awlaki is “a nobody—at best, a midlevel functionary in a local branch,” and that killing him would do more to boost recruits for Al Qaeda than disable its efforts. In fact, he claims:

[I]t is not even known for certain that Awlaki is a member of Al Qaeda. Certainly there are suspicions, and his published statements and interviews clearly support Al Qaeda, but the organization has never acknowledged him. His name has been mentioned exactly once in 12 issues of Sada al-Malahim (“The Echo of Battles”), the organization’s bimonthly journal. And even that citation was hardly an endorsement: it merely disputed recent claims that Awlaki had been killed in a joint U.S.-Yemeni airstrike. He has never written an article, released an audiotape, or starred in a video for the organization. Each of these is an integral part of the group’s propaganda outreach that senior AQAP leaders have done multiple times.

What’s more, there is no evidence to suggest Awlaki is on AQAP’s legal council, an internal group that both provides the religious justification for attacks and guides the future direction of the organization. Nor is there even a hint that he plays anything resembling a leading role in the group.

(Robert Wright and Karen Greenberg have related takes on why it’s a bad idea, on national security grounds, to target al-Awlaki.)

While Johnsen does not present an argument about due process rights per se, that critique runs corollary to his piece. Clearly, there is a factual dispute about the nature of al-Awlaki’s role in Al Qaeda and the danger he poses. Traditionally, factual disputes regarding claims against citizens are resolved in a neutral forum—e.g., a trial—before the government takes action, especially irrevocable action. So we’re back to the original question: Why doesn’t that standard apply here, and what standard does apply?

Other writers have also engaged with the story. On Monday, Adam Serwer of The American Prospect noted a recent speech by State Department adviser Harold Koh about the legal basis of the drone strike program, and wondered whether it might also serve as an explanation for why it’s legal to target citizens without due process. (Coincidentally, The Wall Street Journal’s coverage of Koh’s remarks—and of the misgivings they elicited in some observers—made a passing reference to al-Awlaki.) Spencer Ackerman of The Washington Independent used Serwer’s post as an opportunity to preview Attorney General Eric Holder’s testimony on Wednesday, and to remind readers that he’s filed FOIA requests seeking “the actual rationale adopted by the Obama administration.” Last week, meanwhile, National Review’s Kevin D. Williamson followed up his initial post with some more trenchant concerns about “the prospect of putting American citizens on a government hit list.” A story in the Christian Science Monitor, while it didn’t push very hard on official sources, suggested that targeting Awlaki for assassination was “probably legal.” And deeper into the blogosphere, Opinio Juris contributor and Melbourne Law School professor Kevin Jon Heller took a detailed look at some of the relevant statutes and concluded that, in his view, killing Awlaki would amount to murder.

So kudos to those folks for keeping a spotlight on this story. The major papers, on the other hand, have largely kept their readers in the dark. The Associated Press and Reuters have reported on the Yemeni government’s mixed signals about whether it will or will not go after al-Awlaki on its own, and on al-Awlaki’s tribesmen’s displeasure with the whole situation; some of that coverage has filtered into papers like The New York Times and The Washington Post. But that seems to be it. In his Opinio Juris post last Thursday, Heller wrote that he had “yet to see any reporter ask why Obama believes he has the legal authority to order Americans killed.” Outside of Ackerman, we haven’t seen any evidence that reporters on the beat are asking this question, either.

To be fair, asking the question is often easier in theory than in practice. Obama and his subordinates will no doubt duck the issue until they’re ready to go on the record with their reasoning; Wright, meanwhile, offers some reasons for skepticism about what this line of inquiry can accomplish. Nonetheless, there is much, much more the press corps could be doing to demand a coherent explanation from the administration. Reporters could have, for example, asked a question about the al-Awlaki standard at the president’s press conference Tuesday. Or during the Sunday morning talk shows. Or at one of the seven briefings and gaggles featuring national security officials over a recent five-day period. Or, for that matter, the press could just start writing stories noting that the administration hasn’t adequately explained why it’s legal to kill an American citizen—and keep writing those stories until they get an answer.

It’s still only been a week since the news of the CIA authorization broke; we can only hope that there’s reporting being done now that has yet to be published. When a government asserts the right to target its own citizens on a global battlefield—without due process, independent review, or even a clearly defined standard—it’s a big story. We need a press that treats it as one.

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