On September 30, 2011, a missile fired by a remotely-piloted American drone slammed into a convoy of vehicles in northern Yemen, killing two of the world’s most wanted men. The deaths of Samir Khan, a propagandist for Al-Qaeda in the Arabian Peninsula, and Anwar al-Awlaki, the public face of the organization and one of its operational leaders, were announced to general satisfaction in the West—President Barack Obama even proclaimed that the strike had dealt “a major blow to Al-Qaeda’s most active operational affiliate.” Tactically speaking, the President may have been right to celebrate: Awlaki, a charismatic preacher whose radical English-language sermons had been circulating for years within the transnational jihadist community, was an unquestionably dangerous man. Legally speaking, the picture is more complicated: both Awlaki and Khan were American citizens and were killed by agents of their own government. There was no use of the judicial process—there was only an executive-level calculation that the two men posed an imminent threat to the safety of the American homeland.
On February 5, 2013, NBC News published a Justice Department white paper outlining the legal basis for attacks like the one that killed Awlaki and Khan. In the Department’s estimation, the use of lethal force is permissible when three conditions have been met: first, an “informed, high-level official of the U.S. government” must certify that the citizen to be killed “poses an imminent threat of violent attack against the United States.” Second, the citizen’s capture must be judged “infeasible.” Third, the attack must be carried out according to the laws of war (by which are meant primarily the classical principles of necessity, discrimination, proportionality, and humanity).
The paper’s authors proceed to address objections to this framework rooted first in the Constitution, then in federal statute, and finally in international humanitarian law. Their arguments are broad and rely heavily on the general Authorization for the Use of Military Force granted to the executive branch by Congress following the attacks of 9/11. Essentially, the AUMF permits “the use of all necessary and appropriate military force” against members of Al-Qaeda and associated groups, and gives the U.S. military and security agencies broad latitude to conduct the war as they see fit.
The constitutional guarantee that no citizen may “be deprived of life, liberty, or property, without due process of law” must give way, it is claimed, to the “weight of the government’s interest in protecting its citizens from an imminent attack.” Sections of the U.S. Code prohibiting the “unlawful killing” of American citizens overseas pose no obstacle, either, since killings carried out by government officials in the cause of national self-defense are not “unlawful.” Neither the Hague, nor the Geneva Conventions, nor the humanitarian guidelines of the Red Cross prohibit the killing of armed members of enemy forces while those armed individuals are engaged in combat.
Every one of these justifications is vehemently contested. To argue that legality is met through condemnation by a single official—even an “informed, high-level official”—is to undermine the foundations of due process. Such an effort requires fairly radical interpretations of the “due process” clause and carries far-reaching implications. Given the ancient and precedent-heavy concept of due process, it is strikingly novel to argue that a potentially unarmed terrorist operating outside the primary theater of conflict at the time of his killing is an enemy combatant “taking active part in the hostilities.” To assume, as the paper’s authors do, that anyone designated a terrorist is continually engaged in the planning of attacks against the American homeland is to read all meaning out of the word “imminent” as it is used in the phrase “imminent threat.”
For months prior to the release of the white paper in question, members of the House and Senate Intelligence Committees had demanded an explanation behind the extrajudicial killing of two American citizens. In making the paper public earlier this week, the Justice Department may have thus hoped to silence some of its harshest critics, but judging by the controversy already swirling around the Department’s novel legal interpretations, the document may end up raising far more questions than it answers.