Reconciling Executive Power and Due Process in the Age of Drone Warfare

            The recent disclosure of documents pertaining to the drone strike against terrorist Anwar al-Awlaki have augured a grand debate on when – if ever – it is legal for the government to kill a citizen of the United States on the suspicion of terrorism. This controversy has spawned the strangest of bedfellows: Obama administration loyalists and Republican hawks are contending that the Commander in Chief of the Army and Navy does hold the power to order the killing of a U.S. citizen; a faction of Tea Party Republicans led by Senator Rand Paul and civil libertarian Democrats are arguing that that the President’s wartime powers have gone too far.

            This debate raises so many emotions, and has already raised so many accusations of hypocrisy and lack of principle that one ought to cast aside for a moment one’s partisan affiliation and try to analyze this controversy within the objective standpoint of the law.

            When jurists assess the limits of presidential power, they look to Justice Robert Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the 1952 case in which the Supreme Court decided that President Truman had exceeded his Article II powers when he ordered the seizure of the steel mills in the midst of the Korean War. Justice Jackson laid out a formula to evaluate the separation of wartime powers between the legislative and executive branches, because Article I § 8 states that Congress shall have the power to declare war, but Article II § 2 states that the President shall be the “Commander in Chief of the Army and Navy"; i.e., the President has the authority to command the troops as to the specifics of how they shall conduct the war.

              Justice Jackson explained that when the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum because the President has the inherent authority of the Commander in Chief to wage war plus Congress’s declaration of war or authorization of military force. When the President acts in absence of Congressional authorization or denial of authority, he can only rely upon the chief executive’s inherent military authority under the Commander in Chief Clause. However, when the President acts in a manner “incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter". I.e. the President cannot wage war in a manner explicitly prohibited by Congress.  

            So far as drone warfare goes, the Obama administration has relied upon the 2001 Authorization for Use of Military Force that Congress passed in the wake of the 9/11 attacks, enabling the Bush administration to exert military power against the al-Qaeda terrorist network. The 2001 AUMF explicitly authorizes the President:

to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.                                                      

More than a decade later, the 2001 AUMF has allowed the Obama administration to continue waging land warfare against al-Qaeda and the Taliban in Afghanistan and Pakistan, it has allowed the White House to order the commando operation in Pakistan that killed Osama bin Laden, and a multitude of drone strikes against al-Qaeda operatives in Afghanistan, Pakistan, Yemen, Somalia. According to Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the President’s authority to wage war against al-Qaeda terrorists is at its constitutional maximum.                                            

             Enter stage left Anwar al-Awlaki. Born in New Mexico, Awlaki was a citizen of the United States, according to the Fourteenth Amendment, and entitled to due process of law. Though Awlaki long ago left American soil and took up residence in the remote Shabwa territory of Yemen, where he gained prominence on YouTube and the official al-Qaeda Internet magazine Insight, spreading his message that killing Americans, soldiers and civilians alike, is “an Islamic duty.” But it would be a gross understatement to say that Anwar al-Awlaki was persecuted for exercising his First Amendment rights. In his emails, Awlaki solicited Major Nidal Malik Hassan to shoot 13 and wounded 29 U.S. Army soldiers at the cafeteria at Ft. Hood. Awlaki recruited and trained Umar Farouk Abdulmutallab a.k.a. “The Underwear Bomber” to detonate plastic explosives aboard a Northwest Airlines Flight 253 from Amsterdam to Detroit. Awlaki was also behind the foiled plot to send packages with remotely-detonating PETN explosives to Jewish synagogues in Chicago, and Faisal Shahzad’s attempted car-bombing of Times Square. Hence by January, 2010, the Obama administration queried the legality of applying military force to Anwar al-Awlaki.

            I will agree with my civil libertarian compatriots like Rand Paul and the ACLU that the killing of Awlaki is troubling because the Fifth and Fourteenth Amendments promise citizens of the United States due process of law, the Sixth Amendment promises the right of a criminal defendant to trial by jury, to confront one’s incriminating witnesses, and to be represented by counsel, etc. When a U.S. citizen, e.g. Timothy McVeigh, commits a terrorist attack killing other U.S. citizens on American soil, the Bill of Rights prohibits the government from summarily executing him. McVeigh was entitled to due process under law, so U.S. Attorneys indicted Tim McVeigh in a federal court, a jury convicted him of 168 counts of murder, and a judge sentenced McVeigh to be executed by lethal injection. Casting aside any questions about the legitimacy of the death penalty, that is how the federal government ought to prosecute domestic terrorists according to the Constitution.

            As former Congressman Ron Paul has suggested, why didn’t the Department of Justice prosecute Anwar al-Awlaki on terrorism charges like they did with Tim McVeigh? There were some practical considerations. Unlike McVeigh – who was arrested by Oklahoma State Troopers while he was driving on the highway – Awlaki chose to hide in the remote hinterlands of civil war-ravaged Yemen, where the central government has no de facto power, there is no functioning state that could have arrested Awlaki and extradited him to the U.S. for criminal prosecution. The rules of due process accorded to criminal defendants in the U.S. were duly inapplicable.

            Even had Awlaki been waging his jihad from the mountains of Colorado or New Mexico, where U.S. criminal law does apply, the other factor to be considered is that Anwar al-Awlaki had created what is known to criminal law practitioners as exigent circumstances. Awlaki had intentionally created an emergency situation in which U.S. law enforcement agents are allowed to take extraordinary measures to protect the safety of the officer and the public – including the use of deadly force.

Generally speaking, police officers can’t just act as judge, jury, and executioner and simply shoot  every suspected criminal and shoot to kill. But if someone points a gun at a police officer, that police officer is authorized by law to shoot that person - as they did to Kimani Gray in East Flatbush this week. If an armed robber has a gun in his hands and appears to create an imminent threat, the NYPD is authorized to shoot that armed robber. If Darrius Kennedy is wielding a butcher knife in a crowd in Times Square and threatening to kill innocent bystanders, the NYPD is allowed – or more accurately, obligated – to shoot that person in order to subdue them. When FBI agents cornered on-the-lamb serial killer Kurt Myers in a bar in Herkimer, New York, and Myers fired his shotgun at an FBI dog, FBI agents returned fire and killed Myers. In such an exigent circumstance, the question about due process is not whether the police had a warrant for the suspect’s arrest or whether the would-be cop killer was tried by a jury of his peers – the question about due process is whether the police adhered to the proper protocol. Did the police give the suspect proper notice and an opportunity to surrender? Did the police reasonably believe that the suspect had drawn a deadly weapon? Did the police reasonably anticipate an imminent threat to themselves or to the public? Did the police use excessive force?

                 So if the NYPC is licensed to shoot to kill Darrius Kennedy as he is wielding a knife in Times Square, can the NYPD shoot to kill Faisal Shahzad as he attempts to detonate his car bomb in Times Square? If police officers were licensed to shoot to kill Kimani Gray when he pointed a revolver in their face, couldn’t soldiers in the U.S. Army shoot to kill Nidal Malik Hassan as he is shooting up their cafeteria at Ft. Hood? If Umar Farouk Abdulmutallab is on a plane trying to detonate plastic explosives, couldn’t an Air Marshall stand up and shoot to kill that terrorist? Absolutely. In reality, the FBI arrested Shahzad at the airport as he was trying to leave the country; Hassan and Abdulmutallab were tackled and subdued on the scene. Shahzad and Abdulmutallab have been convicted and sentenced to life sentences with no possibility of parole; Hassan is awaiting trial by court martial.

So what about Anwar al-Awlaki, the guy who reportedly commanded the Ft. Hood shooter, the “Underwear Bomber”, and the attempted Times Square bomber? Two out of three of his most notable minions have been apprehended and tried according to due process, why couldn’t a U.S. Attorney have tried Awlaki in absentia? Or why couldn’t Obama have sent a team of Special Forces to capture Awlaki in his remote Yemeni sanctuary and bring him back to U.S. territory for criminal prosecution like all of the other common criminals?

The latter scenario might have been vastly superior to the drone strike that did in fact kill Awlaki, for it would have agreed with our system of due process and the rule of law. Many people feel quite uneasy with the idea that the President of the United States can simply order the assassination of suspected terrorists, let alone a U.S. citizen. It sounds infinitely creepy.

               Nevertheless, was President Obama’s action unconstitutional? Not at all, because Congress authorized this kind of action. The President could rely on both the 2001 AUMF and his inherent military powers as Commander in Chief.  

               Was it illegal to shoot Anwar al-Awlaki with a drone aircraft? No, there is no law on the books adequately governing the use of flying robots.   

               Therefore, going back toYoungstown Sheet & Tube Co., according to the inherent authority under the Commander in Chief Clause plus the explicit authorization under the 2001 AUMF, President Obama's authority to order a drone attack against Anwar al-Awlaki was at its constitutional maximum.   

               What about the violations of the constitutional protections of due process? The CIA saw Awlaki’s lethal potential and deemed him an imminent threat. Even if the CIA did not know that Awlaki had in his hand the detonator for a new bomb mailed from Yemen to Chicago at the very moment the drone missile was launched, it was reasonable to believe that he did. Even if it might have been possible for Special Forces to helicopter into Awlaki’s compound to capture or kill him Zero Dark Thirty-style, such a mission might have been logistically impossible because it was reasonable for the CIA to believe that Awlaki might have booby-trapped his lair to go out with a bang. In comparison, President Obama reportedly considered simply bombing Osama bin Laden’s Abottabad hideaway with cruise missiles but decided to pursue the riskier Special Forces mission. The Commander in Chief Clause of Article II grants the President the authority to ultimately make these kind of decisions on the optimal choice of military tactics. 

                It appears that they most applicable question of whether the government violated anyone’s due process in the drone action against Anwar al-Awlaki was whether the federal government applied excessive force. It is quite a grave concern whether it was necessary for the CIA to also kill Samir Khan – the editor of al-Qaeda’s online magazine Inspire. It is also a question whether it was necessary to kill by drone strike Awlaki’s son Abdulrahman when he came to Yemen a month later.

                But was it excessive force to kill Anwar al-Awlaki by drone missile? Maybe. For comparison, civilians were killed in the 2011 raid to capture or kill Osama bin Laden, tens of civilians have died as a result of the war in Afghanistan and Pakistan from 2001 through 2013. And it also might require a willing suspension of disbelief to call a paid employee of al-Qaeda a “civilian.” 

               This is how a generally civil libertarian-minded law student can be both concerned with the Obama administration’s use of drone warfare but understand the legality of killing Anwar al-Awlaki. It raises serious questions about legality and constitutionality, but it appears that the President also raised his concerns about this unique quandary, he asked for the Justice Department to research the legality of using a drone strike against a U.S. citizen deemed to be an imminent terrorist threat against Americans, and the DoJ gave him a memo of sound legal reasoning. Its conclusion that the President can legally order the killing of a U.S. citizen anywhere in the world by flying robot sounds like somewhat Orwellian - but it is correct. According to the laws on the books, the killing of Anwar al-Awlaki was legal.               

               So how is it that this law student can be content with the Obama administration’s extrajudicial killing of Anwar al-Awlaki while I howled at the Bush administration’s use of indefinite detentions without trial at Guantánamo Bay and torture at Abu Ghraib? The Constitution and statute make a distinction between the rights of an enemy combatant who is still on the battlefield waging war against the United States and a prisoner of war in U.S. custody, between a suspected murderer who is still at large, posing an imminent threat against Americans and a suspected murderer sitting in a jail cell. The state can kill the former without a trial by jury but not the latter. What the Obama administration did was legal, whereas what the Bush administration did was illegal. 

Though this author believes that the Obama administration adhered to the law when it orderered a drone strike against Anwar al-Awlaki, that does not mean that this author is blithely unconcerned with the law as it now stands. Tea Party Republicans like Rand Paul and liberal Democrats such as myself are both concerned about the laws on the books are such that the Department of Justice can produce a memo that says that it is legal for the President of the United States to order a flying robot to kill a citizen of the United States. It sounds like a dystopian admixture of Judge Dredd and Robocop.

But the fact is that there is no statute adequately regulating the use of flying robots. The only way for this to change is for Congress to pass a statute explicitly regulating the use of drones. The most promising appears to be H.R. 637, the Preserving American Privacy Act, sponsored by California Democrat Zoe Lofgren and Texas Republican Ted Poe, which would regulate the use of drones for domestic law enforcement purposes. This bill would bring sense of due process into the realm of drone surveillance by requiring the police to obtain a warrant or a court order to use this special technology to conduct a search of a person’s property. It would also explicitly ban the use of weaponized Unmanned Aerial Systems (i.e. Predator or Reaper drones) in U.S. territory. This bill, if it ever becomes law, ought to assuage Rand Paul’s fear that the President might order the summary execution of an unarmed American citizen just sitting there at a café in Bowling Green, Kentucky.

Another, thornier question is whether the President ought to ever be able to order a drone strike to kill a U.S. citizen overseas. There must be a system in place that allows a future President to subdue a U.S. citizen shooting rockets or preparing plastic explosives or otherwise waging war against the United States from an impenetrable, ungovernable hideaway in the mountains of Pakistan, the deserts of Yemen, or the jungles of the Congo where no state can arrest him and bring him to the United States for prosecution. But there ought to be a system of due process in place to make sure that there is sufficient intelligence documenting that this person is indeed an imminent threat and to safeguard against abuses of the system. A few voices have proposed the establishment of a secret intelligence tribunal like the Foreign Intelligence Surveillance Act (FISA) court that grants or denies the executive branch’s requests to wiretap U.S. civilians to establish due process for such a drone strike. The prospect of such a Targeted Killings Act Court might sound medieval, but it would be much less so than that of a chief executive that can order the killing of a citizen without checks and balances.

It might also be worth revisiting the 2001 Authorization for Use of Military Force. In the immediate shock and trauma of 9/11, Congress seemed content to give the President carte blanche to do whatever he wanted wherever he wanted with the U.S. military so long as he could say he was fighting al-Qaeda. Eleven years later, some Democrats and Republicans alike are concerned about the seemingly unchecked expansion of presidential powers contained in that terse document. Americans have outgrown the War on Terror hysteria of 9/11, and it is time for the Obama administration to craft a new military and foreign policy that better reflects the constitutional system of checks and balances in 2013.