Of Predator Drones and Due Process...

October 5th, 2011 by MOTHAX

Was the attack that killed Anwar al-Awlaki and Samir Khan justified under US and International Law?

Just to give a basic framework of the discussion, the Palm Beach Post lays it out rather nicely:

The killing of the U.S.-born Al-Qaeda cleric Anwar al-Awlaki on Friday along with another U.S. citizen and two other Al-Qaeda operatives in Yemen is likely to fuel the international controversy over the legality and wisdom of the Obama administration's dramatically increased use of drone attacks.
For several years, U.S. allies have made no public comment, even as U.S. drone strikes have killed twice as many suspected Al-Qaeda and Taliban members than were ever imprisoned in Guantanamo Bay. But that acquiescence may change, as human rights groups and the media debate the legality and collateral damage of drone attacks. The U.S. drone program has been highly effective in killing senior Al-Qaeda leaders, but the administration needs to better explain and defend its use of drones to avoid losing international support and potentially exposing administration officials to legal liability
The U.S. position, under the Bush and Obama administrations, has been that drone strikes against Al-Qaeda and Taliban leaders are permitted by the September 2001 Authorization to Use Military Force Act, which empowered the president to use "all necessary and appropriate force" against nations, organizations or persons who planned, committed or aided the Sept. 11 attacks. The United States also believes that drone strikes are permitted under international law and the United Nations Charter as actions in self-defense, with or without the consent of the country where the strike takes place.

It’s perhaps easiest to start with the people who think that it was not justified, which seems to range across the political spectrum, but noticeably more present at the far peripheries. From the far left, it is customary for me to start with Glenn Greenwald of Salon…

What’s most striking about this is not that the U.S. Government has seized and exercised exactly the power the Fifth Amendment was designed to bar (“No person shall be deprived of life without due process of law”), and did so in a way that almost certainly violates core First Amendment protections (questions that will now never be decided in a court of law). What’s most amazing is that its citizens will not merely refrain from objecting, but will stand and cheer the U.S. Government’s new power to assassinate their fellow citizens, far from any battlefield, literally without a shred of due process from the U.S. Government. Many will celebrate the strong, decisive, Tough President’s ability to eradicate the life of Anwar al-Awlaki — including many who just so righteously condemned those Republican audience members as so terribly barbaric and crass for cheering Governor Perry’s execution of scores of serial murderers and rapists: criminals who were at least given a trial and appeals and the other trappings of due process before being killed.

Meanwhile from the right we have Presidential candidates Ron Paul and Herman Cain representing the libertarian and conservative wings. First, Ron Paul:

"No, I don't think that's a good way to deal with our problems,” Paul said in a videotape of the questioning by reporters. Awlaki “was never tried or charged for any crimes. No one knows if he killed anybody. We know he might have been associated with the ‘underwear bomber.’ But if the American people accept this blindly and casually that we now have an accepted practice of the president assassinating people who he thinks are bad guys. I think it's sad.”…
“I think, what would people have said about Timothy McVeigh? We didn't assassinate him, who certainly had done it,” Paul said. McVeigh “was put through the courts then executed. … To start assassinating American citizens without charges, we should think very seriously about this.”

Paul argued that the killing of Awlaki was different from the attack on Bin Laden because Bin Laden was involved in the 9/11 attack on the World Trade Center in New York and the Pentagon in Washington.

Frankly, the Ron Paul logic on this one escapes me entirely. How is it different? Bin Ladin was never put on trial either, so was it just that 9/11 changes it? And who exactly makes the decision as to whether one event is strong enough to overcome the need for a trial, and another is not. I’d like to give the Dr., the benefit of the doubt and assumed he was misquoted, and/or there was something else he said to bolster this line of thinking, but I have been looking for two days and found nothing.

Meanwhile, Hermann Cain is being no less difficult to pin down on this one. On May 5 of this year, Cain said

"He should be charged. And since he's an American citizen, he should be tried in our courts," Cain said of al-Awlaki. When asked if he considered it legal for President Obama to order al-Awlaki killed, Cain said, "In his case, no, because he's an American citizen."

This week, somewhat inexplicably, he stated:

“I never said that [President Obama] should not have ordered [the killing]. I don’t recall saying that. I think you’ve got some misinformation," Cain said. "Keep in mind that there are a lot of people out there trying to make me sound as if I am indecisive."
“I don’t know all of the compelling evidence that the intelligence agencies and the military had. I’m convinced—I’m convinced that they have enough intelligence information that said he’s a threat to the United States of America,” Cain said. “You don’t try to prosecute or capture him simply because he’s a United States citizen.”

Unfortunately, we don’t have a particularly clear-cut explanation of the legal thinking of the White House, as the memo that was drafted is secret….

The Justice Department wrote a secret memorandum authorizing the lethal targeting of Anwar al-Aulaqi, the American-born radical cleric who was killed by a U.S. drone strike Friday, according to administration officials.
The document was produced following a review of the legal issues raised by striking a U.S. citizen and involved senior lawyers from across the administration. There was no dissent about the legality of killing Aulaqi, the officials said.
“What constitutes due process in this case is a due process in war,” said one of the officials, who spoke on the condition of anonymity to discuss closely held deliberations within the administration.

The closest that we have to a legal reasoning is a speech by John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism before the Program on Law and Security at the Harvard Law School:

In the face of this ongoing and evolving threat, the Obama Administration has worked to establish a counterterrorism framework that has been effective in enhancing the security of our nation. This framework is guided by several core principles.
First, our highest priority is – and always will be – the safety and security of the American people. As President Obama has said, we have no greater responsibility as a government.
Second, we will use every lawful tool and authority at our disposal. No single agency or department has sole responsibility for this fight because no single department or agency possesses all the capabilities needed for this fight.
Third, we are pragmatic, not rigid or ideological – making decisions not based on preconceived notions about which action seems “stronger,” but based on what will actually enhance the security of this country and the safety of the American people. We address each threat and each circumstance in a way that best serves our national security interests, which includes building partnerships with countries around the world.
Fourth—and the principle that guides all our actions, foreign and domestic—we will uphold the core values that define us as Americans, and that includes adhering to the rule of law. And when I say “all our actions,” that includes covert actions, which we undertake under the authorities provided to us by Congress. President Obama has directed that all our actions—even when conducted out of public view—remain consistent with our laws and values.

Now, I don’t really see much of a legal argument per se in there, but everyone else is pointing to this speech as the justification. So, in the meantime, I guess we just have to guess as to what it is, and try to find a way to differentiate the Greenwald/Paul/Cain reasoning from that of the White House.

Either way, what do you guys think? Was the strike legally justifiable or not?

UPDATE: This article in Military.com today gives me a little more to go on....

A secret panel of mid-level national security officials has been established that can put American citizens on a “kill or capture” list that is ultimately sent to the White House for final approval.

The panel’s recommendations first go through a group of National Security Council “principals” – meaning Cabinet secretaries and intelligence chiefs – for approval before reaching the president’s desk, according to a report today by Reuter’s.

There is no public record of the panel’s workings and no law actually establishing it or spelling out its functions.

I don't know if that makes me more or less apprehensive about this. Is Congress cool with the President making this quasi-Judicial body without any legislative input?

If anyone is reading an inherent bias on my part in the preceding, I'd love to know what that bias is, because I honestly have no clue how I feel about this whole thing. I feel uncomfortable with secret bodies not authorized by legislation authorizing things like killings. On the other hand, Awlaki needed to be ventilated and good riddance to bad rubbish. But, we should always think worst case scenario with these sorts of things. Can you envision a scenario where a US Citizen is killed abroad with a drone attack, and he didn't have what was coming to him? Probably we all can. So, what safeguard is there? That's where I get somewhat lost.

Update X2: The family of Samir Khan issued this press release today:

We, the family of Samir Khan, in our time of grief and mourning, request that the media let us have our peace and privacy during this difficult time.
It has been stated in the media that Samir was not the target of the attack; however no U.S. official has contacted us with any news about the recovery of our son’s remains, nor offered us any condolences.
As a result, we feel appalled by the indifference shown to us by our government.
Being a law-abiding citizen of the United States, our late son Samir Khan never broke any law and was never implicated of any crime. The Fifth Amendment states that no citizen shall be 'deprived of life, liberty, or property, without due process of law' yet our government assassinated two of its citizens.
Was this style of execution the only solution? Why couldn’t there have been a capture and trial?
Where is the justice? As we mourn our son, we must ask these questions.
Sincerely,
The Khan Family.

I find that mildly ridiculous, because one of the last things Samir wrote was an article in the Al Qaeda Magazine entitled "I am proud be a traitor to America." So, he was a law-abiding self-professed traitor? Something doesn't add up there wouldn't you say?

My Friends at My Pet Jawa are also decidedly unpleased, and included this picture of Sami's article...