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.
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.
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.”
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.