We must not oversimplify the difficulties of fighting al-Qaida. The president needs authority to act quickly when the opportunity arises to attack a terrorist leader bent on mass killing.
At the same time, there cannot be two legal standards: one for regular citizens and another that only applies to the president and his senior aides. That’s why an uproar erupted in Washington last week over the use of unmanned drones to execute American citizens on foreign soil.
An Obama administration white paper, uncovered by NBC News, offers a troubling justification for the September 2011 drone attack in Yemen that killed American citizens Anwar al-Awlaki and Samir Khan.
The airstrike was specifically designed to kill al-Awlaki without any attempt to capture and put him on trial for links to terrorist attacks, including the Fort Hood killings.
The white paper does give a nod to constitutionally mandated due process but quickly discards the notion. The administration acknowledges that it can only launch drone attacks when an “imminent threat” exists. Yet such a threat “does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”
By this logic, “imminent” could mean weeks, months or years away. The targeted person need only to have “recently” been involved in unspecified “activities,” the white paper says.
Aside from writing and recording videos, it’s not clear what activity of al-Awlaki’s qualified him for summary execution without trial.
Worse still, the decision to kill can be made by an “informed, high-level official of the U.S. government,” not necessarily the president.
Americans should be deeply concerned when unnamed individuals, operating secretly, receive the unchecked authority to kill other Americans. Doubly worrisome is the combination of this authority with the extraordinary penetrability and killing power of unmanned drones. Nowhere is off limits, and seemingly any justification is good enough if these unnamed individuals want you dead.
Congress has a right and responsibility to intervene. If existing wartime authority and counter-terrorism laws are too broadly worded, they must be revised to ensure the executive branch does not have unchecked power to kill just because this war’s front lines are so ill-defined.
Congress should design a legal process that gives the president flexibility to pursue our enemies yet ensures that he honors constitutional constraints. At a minimum, some level of judicial oversight must be invoked to ensure the president has a judge’s authority to proceed, particularly when it’s an American in the drone’s crosshairs.