Five months and five days after it killed a notorious American jihadist without due process of law, the Obama administration has offered an explanation of its actions in the death of al-Qaeda provocateur Anwar al-Awlaki.
In September, a Hellfire missile fired from a drone aircraft operated by the Central Intelligence Agency struck ground in Yemen. It killed not one but two American citizens. One was New Mexico-born Anwar al-Awlaki, 40; the other was Samir Khan, 25, who published media for Al Qaeda promoting terrorism. Al-Awlaki was the intended target; Khan, apparently, was just gravy.
Attorney General Eric Holder said Monday the government used a three-part test for determining the legality of killing an American citizen beyond immediate reach of U.S. courts. Reported the Associated Press:
[Holder] said the government must determine after careful review that the citizen poses an imminent threat of violent attack against the U.S., capture is not feasible and the killing would be consistent with laws of war.
After careful review? What constitutes review? Who determines how careful it is? Based on what legal standards? What policy underwrote the killing?
Holder did not clearly explain any of these. Perhaps that’s why the Obama administration has refused to release its written legal opinion regarding killing Americans abroad without due process of law. The Associated Press, the American Civil Liberties Union, and the First Amendment Coalition are among the groups filing Freedom of Information Act requests to obtain the legal memo. The Obama administration is fighting the requests in court — due process, y’know.
In his explanation, Holder said the United States did not need to obtain clearance or permission from a court to kill an American abroad deemed an imminent danger to the interests of the United States. “The Constitution guarantees due process, not judicial process,” Holder said in a speech at Northwestern University law school in Chicago.
Not so, says one legal scholar. University of Notre Dame international law expert Mary Ellen O’Connell, who argued for release of the formal legal justification alluded to by Holder, told the AP:
From what we know so far, the memo is highly reminiscent of the torture memos written during the Bush administration, in which irrelevant U.S. cases and statutes are cited in order to give the CIA a green light.The relevant international law does not permit targeted killing far from battle zones.
Was al-Awlaki a bad guy? Probably. Was he acting in a manner sufficient to create the potential for harm to people and property in America? His rhetoric suggests probably. Did he deserve to die? Probably.
But I’m not a judge. These are questions of guilt and innocence I expect to be addressed in a courtroom. But al-Awlaki has never been indicted in an American court. Is my attitude naive? Simplistic in a complicated world? Perhaps.
But until the Obama administration releases its memo outlining its careful review of the legal justification to murder al-Awlaki, we will be left with Holder’s argument that due process does not mean judicial process.
As one commenter wrote in an earlier post, Americans at least need clarity in policy.
We have to be explicit and accountable as a culture about what we’re going to authorize. If we choose, as a citizenry, to authorize the president to engage in black ops around certain defined criteria, those criteria and said authorization will be stated explicitly and oversight will be established. Under NO circumstances do our leaders get to make secret rules and take rogue action that isn’t in accordance with these principles.
Until that clarity appears and is tested in the court of public opinion, none of us should take comfort in Holder’s explanation. The Obama administration must release that memo. The president should provide that clarity of policy.