License to Kill, Part III

Times takes note: Al-Awlaki standard makes some ‘uneasy’

The legal questions surrounding the Obama administration’s decision to authorize the extrajudicial killing of Anwar al-Awlaki, an American citizen accused of fomenting terrorist violence from Yemen—which Campaign Desk has previously raised here and here—finally get some prominent attention from the mainstream press today. In a story that appears above the fold on the front page of the print edition, Scott Shane of The New York Times reports:

WASHINGTON — The Obama administration’s decision to authorize the killing by the Central Intelligence Agency of a terrorism suspect who is an American citizen has set off a debate over the legal and political limits of drone missile strikes, a mainstay of the campaign against terrorism.

The notion that the government can, in effect, execute one of its own citizens far from a combat zone, with no judicial process and based on secret intelligence, makes some legal authorities deeply uneasy.

The characteristic delicacy of the Times’s word choice might be too mild for some; the whole piece is, as Spencer Ackerman notes, “understated.” But Shane gives space up high to one of those uneasy authorities, who points out that the program seems to exist in a legal no-man’s-land:

To eavesdrop on the terrorism suspect who was added to the target list, the American-born radical cleric Anwar al-Awlaki, who is hiding in Yemen, intelligence agencies would have to get a court warrant. But designating him for death, as C.I.A. officials did early this year with the National Security Council’s approval, required no judicial review.

“Congress has protected Awlaki’s cellphone calls,” said Vicki Divoll, a former C.I.A. lawyer who now teaches at the United States Naval Academy. “But it has not provided any protections for his life. That makes no sense.”

And later:

In a traditional war, anyone allied with the enemy, regardless of citizenship, is a legitimate target; German-Americans who fought with the Nazis in World War II were given no special treatment.

But Ms. Divoll, the former C.I.A. lawyer, said some judicial process should be required before the government kills an American away from a traditional battlefield. In addition, she offered a practical argument for a review outside the executive branch: avoiding mistakes.

She noted media reports that C.I.A. officers in 2004 seized a German citizen, Khaled el-Masri, and held him in Afghanistan for months before acknowledging that they had grabbed the wrong man. “What if we had put him on the kill list?” she asked.

Advocates for the program get their say too, of course. Shane interviews John Radsan, another former CIA lawyer and now a professor, who argues that the sort of judicial review Divoll seeks could represent an unconstitutional infringement on presidential power.

An official defense of the program’s legal foundation, though, still hasn’t really been articulated. Shane refers to a March speech by State Department legal adviser Harold Koh, which was a defense of the legality of drone strikes in general but has been read as a potential case for targeting citizens. Otherwise, there’s this:

“American citizenship doesn’t give you carte blanche to wage war against your own country,” said a counterterrorism official who discussed the classified program on condition of anonymity. “If you cast your lot with its enemies, you may well share their fate.”

That’s not a legal argument at all, but it is exactly the sort of non-responsive chest-beating that official sources have been offering for months when asked about this issue. One wonders if Shane’s source is the same person Greg Miller, then of the Los Angeles Times, spoke to for his Jan. 31 story about the CIA’s efforts to get authorization to go after al-Awlaki (which hadn’t yet been granted, though the Defense Department’s Joint Special Operations Command had already been given the green light). From Miller’s article:

“If an American is stupid enough to make cause with terrorists abroad, to frequent their camps and take part in their plans, he or she can’t expect their citizenship to work as a magic shield,” said another U.S. official. “If you join the enemy, you join your fate to his.”

So that’s the on-background script. Meanwhile, press efforts to force the administration to explain its legal rationale through formal channels haven’t been any more successful. The Washington Independent’s Ackerman, who has probably been covering this story more closely than any other beat reporter, wrote Monday that the CIA has determined his FOIA request could not be processed (which may mean, natch, there’s no substantive denial to formally appeal). A similar request to the Justice Department has been sent to the Department of Defense, which hasn’t yet replied.

So why does all this matter, and why should this story be a priority for the press? It may be, after all, that attempting to kill al-Awlaki is the right move on national security grounds (though there are compelling arguments to the contrary, articulated most recently by Robert Wright, and previously by Gregory Johnsen, Karen Greenberg, and Wright again). As for the moral questions involved, there’s no meaningful distinction between targeting for killing a suspected terrorist who is an American citizen and one who is not.

But the legal rights of citizenship have long represented, as National Review’s Kevin Williamson put it when this story first broke, “a bright line on the political map.” Any attempt to recalibrate the boundaries of those rights—and Glenn Greenwald enumerates a number of attempts now underway—must be the subject of public debate and must be defined in law, in order to ensure that they are consistent with the Constitution and are not arbitrary and unbounded decisions made by a small circle of people around the president.

Even advocates of the effort to kill al-Awlaki understand the need for a more robust explanation. Late last month, Rep. John Tierney convened House hearings on the legal questions surrounding the closely related issue of the use of unmanned drones to kill suspected terrorists. (CNN, The Associated Press, and Wired, among others, covered the proceedings.)

One of the expert witnesses, law professor Kenneth Anderson, testified (PDF) that he believed the CIA’s use of drone strikes was legal, and also that the decision to target al-Awlaki was “correct as a matter of law and policy.” (He drew an analogy not to German-Americans fighting with the Nazis but to an American scientist who defected to the Soviets during the Cold War.) But he added that, to address the legal questions, Congress should encourage senior government lawyers to “affirm, amplify, and expand on what [Koh] has said,” and should go on the record endorsing the Obama administration’s approach to al-Awlaki.

That wouldn’t, of course, satisfy the many people who are made “uneasy” by the current policy. But it would move this debate closer to where it belongs—in public, on the record, and out of the circle of anonymous officials in the inner sanctum. And that’s more likely to happen if sustained press attention sends the message that it needs to happen—that blind quotes and remarks from sympathetic academics are not sufficient.

To that end, today’s Times story is a step in the right direction. More like this, please.

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