Reply #23: New York Review of Books: Killing Citizens in Secret

[EFerrari]

David Cole

Sunday’s New York Times reported that the Justice Department’s Office of Legal Counsel has produced a fifty-page legal memo that purportedly authorized President Obama to order the killing of US citizen, Anwar al-Awlaki, without a trial. Last month, the US carried out that order with a drone strike in Yemen that killed al-Awlaki and another US citizen traveling with him. The strike was front-page news, and apparently was undertaken with the approval of Yemen authorities, yet as it was a “covert operation,” the Obama administration has declined even to acknowledge that it ordered the killing.

So now we know that there is a secret memo that authorized a secret killing of a US citizen—and both the memo and the killing remain officially “secret” despite having been reported on the front page of The New York Times. Whatever one thinks about the merits of presidents ordering that citizens be killed by remote-controlled missiles, surely there is something fundamentally wrong with a democracy that allows its leader to do so in “secret,” without even demanding that he defend his actions in public.

As I have argued here previously, it is not necessarily illegal, in wartime, to kill a citizen without a trial. Lincoln’s Union Army did it repeatedly, of course, during the Civil War. If US soldiers had confronted al-Awlaki carrying a gun on an Afghan battlefield, the laws of war would permit them to shoot him on the spot. No one could credibly maintain that they would have to wait till a jury of his peers convicted him and the Supreme Court denied review.

But al-Awlaki was not on the battlefield. He was in Yemen. And he was not even alleged to be a part of al-Qaeda or the Taliban, the two entities against whom Congress authorized the President to use military force in a resolution passed one week after the terrorist attacks of September 11, 2001, which continues to provide the legal basis for the war on al-Qaeda and the conflict in Afghanistan. Al-Awlaki was alleged to be a leader of al-Qaeda in the Arabian Peninsula (AQAP), an organization in Yemen founded long after the September 11 attacks. He had never been tried, much less convicted, for any terrorist crime. He corresponded by email with Nidal Hasan six months before Hasan shot and killed 13 men at Fort Hood in November 2009, and was allegedly involved in planning the foiled airliner bombing near Detroit on Christmas Day 2009. But he was not charged in either crime. Neither attack, moreover, was carried out by al-Qaeda or the Taliban. Are unofficial “allegations” of encouragement of or involvement in terrorism enough to authorize the secret execution of a citizen?

http://www.nybooks.com/blogs/nyrblog/2011/oct/09/killing-citizens-secret/