David Cole teaches constitutional law at Georgetown University and is the legal affairs correspondent for the Nation. He is the author of “The Torture Memos: Rationalizing the Unthinkable.”
There are plenty of problems with President Obama’s targeted killings in the war against terrorism: The policy remains secret in most aspects, involves no judicial review, has resulted in the deaths of innocent civilians, has been employed far from any battlefield and has sparked deep anti-American resentment in countries where we can ill afford it.
But when it comes to the particular legal issue raised in a recently leaked “white paper” from the Justice Department — namely, whether it is legal to kill Americans with drones — one problem looms largest: The policy permits the government to kill its citizens in secret while refusing to acknowledge, even after the fact, that it has done so.
There may be extraordinary occasions when killing a citizen is permissible, but it should never be acceptable for the government to refuse to acknowledge the act. How can we be free if our government has the power to kill us in secret? And how can a sovereign authority be accountable to the people if the sovereign can refuse to own up to its actions?
When Argentina’s military junta secretly abducted and killed its citizens during that country’s “dirty war” in the 1970s, the world labeled these acts “disappearances” and condemned them as violations of human rights. A disappearance is not just an abduction or killing, but an unacknowledged abduction or killing. To “disappear” citizens not only deprives them of their liberty or life without fair process but is deeply corrosive of democratic politics, casting a shadow of fear over all.
The late senator Daniel Patrick Moynihan once said that if he had to choose between a country with the right to vote but no habeas corpus, or a country that had habeas corpus but no right to vote, he’d choose the country with habeas corpus every time. His point was that if the government has the power to lock up its citizens without having to justify its actions to a court, as habeas corpus requires, all other rights are meaningless. If that’s true of detention without judicial review, it is even more true with respect to unacknowledged executive killing. We may think we are free to say what we want, exercise our religion and enjoy the protections of privacy, but none of those guarantees really exists if the president can order us killed in secret.
Killing is not like torture. Torture is never justified, even in wartime. But killing is an integral, if unfortunate, aspect of war. Targeted killing is therefore not inherently illegal; after all, it beats the tragically untargeted killing used in the World War II bombings of Dresden, London and Hiroshima.
Nor is it always forbidden to kill an American. If a U.S. citizen were fighting alongside al-Qaeda on an Afghan battlefield, would anyone question the right of U.S. troops to shoot and kill him? And President Abraham Lincoln violated no constitutional guarantee by authorizing Union troops to fire on American citizens fighting for the Confederacy.
The government can also legally kill Americans in some non-wartime circumstances. The Supreme Court has held, for example, that the Fourth Amendment permits a police officer to use deadly force against a fleeing felon if the felon poses “a significant threat of death or serious physical injury to the officer or others.” The FBI team that on Monday killed an Alabama man who had held a 5-year-old boy hostage for nearly a week certainly did not act unconstitutionally.
But since when is it constitutional for the president to deliberately kill an American while refusing to admit that he has done so? Due process forbids the taking of life or liberty without fair procedures and prohibits any official action that “shocks the conscience,” as the Supreme Court has stated. If secret killing does not shock the conscience, then nothing does.
Anwar al-Awlaki, an American citizen, was killed by a drone strike in Yemen on Sept. 30, 2011. Awlaki is reported to have been an operational leader of Al-Qaeda in the Arabian Peninsula, an organization the administration considers an “associated force” of al-Qaeda. White House officials reportedly say he was involved in planning at least two failed terrorist attacks against the United States.
I say “reportedly” because the Obama administration never charged Awlaki with any crime and has never even acknowledged that it sent the drone that killed him. There is no doubt that the man was killed by a drone. That fact has been reported on the front pages of the nation’s newspapers. Obama himself held a news conference to announce that Awlaki “was killed,” but he very consciously used the passive voice, not admitting any U.S. responsibility.
The administration initially treated the drone killing program as covert, refusing to speak about it. Over time, various Obama administration officials have given public speeches defending the legality of targeted killing in general. But the administration has not admitted killing anyone specific outside Afghanistan with a drone.
The unacknowledged killing of foreign nationals during wartime is disturbing enough, though there may be circumstances in which it is warranted. But in our democracy, it can never be permissible for the president to identify an American citizen for extinction, place him on a “kill list,” authorize a CIA agent or military officer to kill him — and then refuse to admit that it was done. Whether the killing is legal or not, accountability is impossible absent a public statement of responsibility for the act.
Indeed, the Obama administration is opposing lawsuits that challenge Awlaki’s killing and seek disclosure of the documents related to it, in part on the grounds that its role in the killing has never been, and cannot be, acknowledged. If a government of the people and under law means anything, it must mean that the government cannot kill its people in secret and then avoid legal scrutiny by disavowing responsibility.
Administration insiders have hinted that Washington cannot admit that it is directing the drones, even if the world knows it is doing so, because other countries have consented to drone strikes in their territory only on the condition that they go officially unacknowledged. Using lethal force inside another nation’s borders, absent that nation’s consent, is generally a violation of international law, so there is good reason to seek consent. But can an agreement with a foreign country override the president’s constitutional obligation to take American lives only in a publicly acknowledged and legally accountable way?
Obama’s nominee to head the CIA, John Brennan, has put it well: “I think the rule should be that if we’re going to take actions overseas that result in the deaths of people, the United States should take responsibility for that,” he said last fall.
So, President Obama, did you or did you not kill Anwar al-Awlaki?
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