Skeptics of the US drone program won a small victory last week when a US Court of Appeals released much of a 2010 Justice Department memo that declared it lawful to kill Anwar al-Awlaki, a US-born cleric living in Yemen who was accused of plotting attacks.
Although the Obama administration initially fought the memo’s release, this kind of transparency will boost US national security in the long run. Indeed, more is required if US officials are to convince the rest of the world that they are not claiming unlimited powers to assassinate whoever they want. As more countries look to acquire drones, the United States must play a leading role in crafting international norms we all can live with.
Many who took the time to read the Awlaki memo have been struck by how carefully considered and narrowly tailored it was. Far from asserting sweeping powers, it suggests that such force can only be used in the context of a military conflict authorized by Congress, when the target is actively participating in attacks against Americans, capture is infeasible, and the use of force conforms to the laws of war by minimizing collateral damage to civilians.
These are reasonable criteria. Unfortunately, the secrecy surrounding the drone program makes it impossible for the public to understand if Awlaki’s case, or any other, meets it. Details about Awlaki’s activities were heavily redacted. Perhaps the most compelling criticism of the drone program is the lack of independent review of each case and whether the program is following its own rules.
Awlaki’s killing raised more eyebrows than other drone attacks due to the fact that he happened to be a US citizen, born in New Mexico while his Yemeni father was a graduate student there. Critics have charged that killing Awlaki in 2011 violated the Constitution by depriving him of his life without due process. This is a valid concern.
But if Awlaki, allegedly a leader of Al Qaeda in the Arabian Peninsula, was in fact engaged in armed conflict against the United States, and if he did present an imminent threat to other Americans, then his citizenship cannot make him immune to harm in the war he chose to fight. His Constitutional rights can’t trump the right of the United States to defend its other citizens.
While arresting and trying Awlaki would have been preferable, that’s not always possible. No one would argue that US soldiers in the heat of battle must capture and take to court an enemy attacker simply because that individual happens to hold a US passport. Indeed, the Civil War would never have been won if President Lincoln had been forced to arrest and try every US citizen who took up arms against the Union.
Nonetheless, real questions remain about how long the war against Al Qaeda, authorized by Congress in 2001, should be allowed to continue, and how expansively this authorization should be applied to fighters far from Afghanistan.
The farther we get from September 11, 2001, the harder it will be to justify drone attacks against US citizens and non-citizens alike. As US combat troops prepare to draw down in Afghanistan, there is a need for Congress to revisit and revise this authorization. Stepped up US engagement in the conflicts in Iraq and Syria make this task all the more urgent.