Drone strikes renew scrutiny on how US targets lethal force
Recent drone strikes that accidentally killed several Americans raise questions anew about the limits of long-distance remote warfare and the president's authority to target attacks.
Flowers and ribbons adorn a tree outside the Weinstein familyhouse in Rockville, Md., Thursday, April 23, 2015. Earlier, President Obama took full responsibility for the counterterror missions and offered his 'grief and condolences' to the families of the hostages, Warren Weinstein of Rockville, Maryland, and Giovanni Lo Porto who were inadvertently killed by CIA drone strikes early this year.
Jose Luis Magana/AP
Washington
When President Obama came forward with the news Thursday that a US 鈥渃ounterterrorism operation鈥� had accidentally killed an American and an Italian hostage in January, he also revealed that two Americans associated with Al Qaeda had also recently been killed accidentally.
The revelations have once again sparked questions about the circumstances under which the United States can intentionally use targeted lethal force against American citizens abroad.
Ahmed Farouq and Adam Gadahn were both Americans who officials say were senior members of Al Qaeda.聽
Mr. Farouq was killed in the same strike in which Giovanni Lo Porto and Warren Weinstein, the American hostage, died.
Mr. Gadahn was also killed in January, but 鈥渓ikely in a separate US government counterterrorism operation,鈥� according to a White House statement. 鈥淲hile both Farouq and Gadahn were Al Qaeda members, neither was specifically targeted, and we did not have information indicating their presence at the sites of these operations.鈥�
What Mr. Obama did not share was that the counterterrorism operations that killed all these Americans involved drone strikes 鈥� a fact that American officials relayed in unattributed remarks.
Drone operations have helped to drive the thorny question about the president鈥檚 authority to order the killing of US citizens without a trial.
A 2011 Department of Justice memo says that to legally order the death of a US citizen without a trial, the government must determine that the citizen is 鈥渁 senior Al Qaeda leader or an associated force鈥� who is 鈥渁ctively engaged in planning operations to kill Americans.鈥澛�
鈥淭he DOJ basically argued that if you could satisfy those criteria, the president has sufficient authority鈥� to order the killing, says Christopher Swift, adjunct professor of national security studies at Georgetown University in Washington.
Yet there are, too, the Constitution鈥檚 Fifth Amendment prohibitions against depriving citizens of life and liberty without due process of law.
The US government鈥檚 lawyers have argued that in the case of 鈥渋mminent threat,鈥� this due process is not required.
鈥淚n other words, you don鈥檛 have to arrest someone to put them on trial while they鈥檙e trying to kill you,鈥� Dr. Swift says.
鈥淚f a bank robber has a hostage and is walking down the street with a gun to the hostage鈥檚 head, that鈥檚 an imminent threat. By imminent, we mean right now, not next week,鈥� he adds. 鈥淭hen we don鈥檛 have to worry about the Fifth Amendment.鈥�
The problem with the Justice Department memo, many analysts agree, is that the definition of imminent has gotten 鈥渧ery stretched,鈥� as Swift puts it.
It doesn鈥檛 help that the specific circumstances surrounding what the US government considers to be an 鈥渋mminent鈥� threat are classified in a CIA annex, 鈥渟o us mere mortals don鈥檛 get to see what those facts are,鈥� Swift says.
The US Supreme Court, for its part, has made it clear 鈥� in a very different sort of case involving denial of someone鈥檚 Social Security benefits 鈥� that its definition of 鈥渄ue process鈥� for US citizens does not necessarily involve a trial 鈥渋f you can show that there鈥檚 been sufficient review,鈥� he says.
The standard of 鈥渋mminent鈥� threat is far more problematic for the US government, since it is nearly impossible to determine that a senior American Al Qaeda official is indeed engaged in planning a strike that is moments away from harming an American.
The American Civil Liberties Union (ACLU) brought a case to the New York courts on behalf of the father of Anwar al-Awlaki, an American imam who was intentionally killed by the US without a trial.
The New York courts dismissed the case on national security grounds, however. 鈥淭hey were basically saying that they didn鈥檛 want to deal with the issue,鈥� Swift says.
As a result, the 2011 Justice Department memo 鈥渋s hanging out there as the only form of legal authority,鈥� he adds. 鈥淎nd it鈥檚 a totally unsatisfactory one, because their imminence analysis is poor and their reliance on due process is vague.鈥�
That said, 鈥淚 don鈥檛 think the guys who wrote the US Constitution would have any problem鈥� with killing US citizens who are Al Qaeda leaders. 鈥淭hey wouldn鈥檛 see citizenship as a shield protecting somebody who signs up to fight with adversaries.鈥�
During the Civil War, Union soldiers required no special dispensation to kill Confederates, says Anthony Cordesman, a defense analyst at the Center for Strategic and International Studies in Washington.聽
What鈥檚 more, without a formal objection from Congress, US presidents are given all sorts of authorities under the umbrella of protecting America鈥檚 national security. Abraham Lincoln suspended rights of habeas corpus. Franklin D. Roosevelt ordered US-born Japanese-Americans to internment camps, and even extradited Americans of Japanese descent who were living in Latin America in order to put them in these camps.聽
鈥淚 think we are just forgetting the entire history of the United States,鈥� Dr. Cordesman says.
Until the courts take up the case or Congress formally objects, the practice will probably continue if Obama decides it should.
鈥淚f the Supreme Court can possibly get away with it, it鈥檚 going to avoid making this decision,鈥� Cordesman adds. 鈥淏ecause it raises issues of constitutionality that are not clearly covered in the Constitution.鈥�