Killing Americans on Secret Presidential Order is Not OK in a Democracy
Law Professor David Cole in the New York Times Review of Books writes about the secret memo of authorizing the extra-judicial, targeted killing of American citizens, Anwar al-Awlaki and drone attacks. Shorter version: We need established defined rules and transparency.
In a democracy the state’s power to take the lives of its own citizens, and indeed of any human being, must be subject to democratic deliberation and debate. War of course necessarily involves killing, but it is essential that the state’s power to kill be clearly defined and stated in public—particularly when the definition of the enemy and the lines demarcating war and peace are as murky as they are in the current conflict.
Secret memos, with or without leaked accounts to The New York Times, are no substitute for legal or democratic process. As long as the Obama administration insists on the power to kill the people it was elected to represent—and to do so in secret, on the basis of secret legal memos—can we really claim that we live in a democracy ruled by law?
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. That resolution continues to provide the legal justification for the war on al-Qaeda and the conflict in Afghanistan, but it is limited to those who attacked the US on September 11 and those who harbor them. Al-Awlaki was not alleged to be part of either group, but instead a leader of AQAP, an organization in Yemen founded in 2009, long after the September 11 attacks. He had never been tried, much less convicted, for any terrorist crime.
Cole asks, rhetorically I assume:
Are unofficial “allegations” of encouragement of or involvement in terrorism [should not be] enough to authorize secret executions without trial outside of a military conflict?
He says the memo makes three assumptions that have never been tested:
1. al-Awlaki was the leader of AQAP and AQAP is a "co belligerent" of al-Qaida fighting beside it
2. al-Awlaki posed an imminent threat to the U.S.
3. It was not "feasible" to capture al-Awlaki in Yemen.
AQAP is an off-shoot of al Qaida but when has it ever fought beside it? What imminent threat did al-Awlaki pose? And given the Yemeni government's willingness to allow our drones, why was capture "unfeasible?" Yemen has repeatedly said they value our assistance in training their terrorism forces and providing them with technology. We're practically partners with them (if not calling the shots).
I'd add one final reason the President shouldn't have secret authority to kill Americans instead of capturing them and bringing them before a court: What if one of the loony Republicans running for President in 2012 actually wins?
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