Killng Americans Overseas in The War on Terror

The drone strike that killed Anwar al-Awlaki, U.S. citizen and likely traitor, caused me concern due to the legal issues involved. I believe there are circumstances under which U.S. citizens may legally be killed in combat operations. But just as I criticized Bush for asserting executive authority for wiretapping and Gitmo trials; I don't give this administration a free pass on killing Americans just because it's part of the war on terror.

The probable legal justification for the killing is that it is part of the war on terror and these Americans had participated in armed conflict against the United States. I say probable, because the administration isn't saying. The use of force appears to be authorized as part of the Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq section 3.b.2:

acting pursuant to this resolution is consistent with the United States and other countries continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations or persons who planned, authorized, committed or aided the terrorists attacks that occurred on September 11, 2001.

I quote this section because it was passed after the initial joint resolution regarding the war on terror. So is this the justification the White House is using to authorize the killing al-Awlaki?

No, because perhaps more problematic than the killings themselves, is the lack of transparency over the legal reasoning behind the decision. Supposedly a secret DOJ memo exists that provides legal cover for the decision, but no one is releasing it. Imagine that, Eric Holder not being forthcoming. Conor Friedersdorf in the Atlantic makes a good case that the lack of transparency is unacceptable in a constitutional republic.

What justification can there be for President Obama and his lawyers to keep secret what they're asserting is a matter of sound law? This isn't a military secret. It isn't an instance of protecting CIA field assets, or shielding a domestic vulnerability to terrorism from public view. This is an analysis of the power that the Constitution and Congress' post September 11 authorization of military force gives the executive branch. This is a president exploiting official secrecy so that he can claim legal justification for his actions without having to expose his specific reasoning to scrutiny. As the Post put it, "The administration officials refused to disclose the exact legal analysis used to authorize targeting Aulaqi, or how they considered any Fifth Amendment right to due process."

In a nation dedicated to the rule of law, a discussion of the legal issues are needed. There are some questions about whether al-Awlaki was a combatant, does merely encouraging others count? Tokyo Rose was convicted of treason after World War II, but there was a trial. I also question the use of CIA operated drones to prosecute the war on terror. How are they different from unlawful combatants, as we termed the al-Qaeda fighters in Afghanistan? They are not members of the military, customary international law forbids the use of civilians in armed conflict, so that they may be protected. A real discussion of these issues is needed, because we need to actually conduct combat operations within the Law of Armed Conflict and appear to do so as well. It is in our national interest that we be the strongest upholders of the rule of law in the world.

Ultimately, I think the Congress erred in giving the President open ended war powers to prosecute a world wide war on terror. In effect, the President can authorize drone strikes anywhere in the world if he "determines" that the target was involved in terror attacks directed against the United States. The only check on this power is that of public opinion and the Congress' eventually getting around to de-funding the operation. That is a pretty weak check in our constitutional republic. I think the President is narrowly within the letter of the law, here, but the law is a poor one. The Congress needs to declare the war on terror to be limited both in time and location to check the power of the Presidency to wage war. Further, a full legal debate about the means of prosecuting the war on terror is needed. Strong support for the rule of law is a conservative principle, but I don't see many conservatives asking these kinds of questions.

Meanwhile we continue with the irony of Obama looking very Bush-like in the use of state secrecy laws to shield inquiry into the legality of the administration's actions in the war on terror. What incongruity will we next face, perhaps anti-Wall Street protests supporting an administration filled with bankers and financiers?