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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    What if one of the loony Republicans wins? (5.00 / 2) (#1)
    by Romberry on Sun Nov 13, 2011 at 01:34:38 AM EST
    How about this. What if Obama wins? Think he'll stop ordering the deaths of Americans without due process? Back away from his policy of indefinite detention without charge or trial? Decide that he doesn't really love cluster bombs after all?

    On that cluster bomb thing:

    Slightly more than two months after he was awarded the 2009 Nobel Peace Prize, President Obama secretly ordered a cruise missile attack on Yemen, using cluster bombs, which killed 44 innocent civilians, including 14 women and 21 children, as well as 14 people alleged to be "militants." It goes without saying that -- unless you want Rick Perry to win in 2012 -- this act should in no way be seen as marring Obama's presidency or his character: what's a couple dozen children blown up as a part of a covert, undeclared air war?

    [big snip]

    (N)ow the Obama administration is moving far beyond a mere refusal to join the convention banning these munitions. According to The Independent, the U.S. is playing the leading role "to torpedo the global ban on cluster bombs" through a "proposal that would permit the use of cluster bombs as long as they were manufactured after 1980 and had a failure rate of less than one per cent." The paper also reports that despite Britain's long-time role in supporting the ban, its conservative government is now backing the Obama administration's efforts to codify their use. The Pentagon claims that newer cluster bombs can be used more safely, but activists have documented that "many modern cluster bombs have far higher failure rates on the field of battle than manufacturers claim."

    Loony Republicans are a concern. But Obama is also a concern. In fact, it's hard to tell one brand of lunacy apart from the other. Let's face it, it wasn't Bush who started issuing kill orders against Americans. It was Obama.

    Nobel Peace Prize Laureate-in-Chief... (none / 0) (#17)
    by Mr Natural on Sun Nov 13, 2011 at 06:22:11 PM EST
    ... there are no words.

    Al Qaida and other Terror Agent (5.00 / 1) (#2)
    by koshembos on Sun Nov 13, 2011 at 04:44:48 AM EST
    Cluster bombs do not belong here; it is a politically motivated distraction. It is also not a partisan issue; neither parties have legal standing to execute people without a judicial decision.

    Ordering the killing of US citizens by an administration is illegal and damaging to our society. Killing is simple assassination. At this time, the US is not in grave danger from any single terrorist. Even 9/11 was mainly a failure of the intelligence services. Killing does not compensate for failures.

    If and when hostile acts will threaten the US, there must be a legal way to deal with the threat.

    Democracy does not do well when every other governmental goal is expressed as a war: war on drugs, war on terrorism, etc. We better change the terminology to a campaign against drugs, a police action against terrorism.

    What if one of the loony Republicans wins in 2012? (5.00 / 2) (#3)
    by Edger on Sun Nov 13, 2011 at 05:07:23 AM EST
    Millions of 'democrats' will start pretending again that they are opposed to most of what Obama has been doing since he's been president.

    Look at each and every one of Obama's policies and you will find a continuation or expansion of Bush's far right policies. He isn't doing these things out of weakness or some misguided desire to be conciliatory. He's doing them because he is a right-wing extremist and his policies are the same as those of the Republicans.

    Every time someone recites all the (5.00 / 3) (#9)
    by Anne on Sun Nov 13, 2011 at 10:35:25 AM EST
    things that Obama is doing that are so clearly wrong, and in so many ways, and then gets all breathless about what happens if - gasp! - one of the loony Republicans wins, I want to scream.  Why?  Because it is Obama, nominally a Democrat - who is setting the precedents that the "loony Republicans" will be using to allow this kind of thing to continue.

    And if one of the loony Republicans doesn't win, well, then - Obama will have four more years to keep doing what he's already established is how he wants to play this.

    In other words...this is now standard operating procedure, isn't it?  It's normal.

    What if one of the loony Republicans wins?  Who on earth is going to be able to tell the difference?  

    It looks as though (5.00 / 2) (#13)
    by Edger on Sun Nov 13, 2011 at 11:31:52 AM EST
    the loony Republicans have already won, doesn't it?

    "America has one political party, (5.00 / 1) (#18)
    by Mr Natural on Sun Nov 13, 2011 at 06:24:27 PM EST
    ... the party of property.  It has a right wing and a left wing, blah blah blah"
    - Gore Vidal

    Glenn Greenwald also covers this beat: (5.00 / 1) (#20)
    by Mr Natural on Sun Nov 13, 2011 at 06:49:45 PM EST
    I remember so vividly (none / 0) (#22)
    by NYShooter on Sun Nov 13, 2011 at 09:50:16 PM EST
    Richard Nixon towards the end of his Watergate cover-up days. To answer questions why he wouldn't release documents the Senate Committee, and others, were asking for he appeared on TV from the Oval Office. There, sitting on his desk were stacks and stacks of documents, ostensibly to dramatize how cooperative he was in releasing documents. He pointed to the stacks, and in an exasperated voice, he looked into the cameras and said something like, "look at all these documents I've released. What more do they want??"

    Of course, what "They wanted" were the documents he didn't release, the documents that would show him to be a criminal, and a liar."

    Didn't work for Nixon then....doesn't work for Obama now.


    Sight correction needed obviously (none / 0) (#4)
    by Daniel Millstone on Sun Nov 13, 2011 at 07:28:58 AM EST
    Not the New York Times Review of Books, of course but the NY Review of Books.

    Good post.

    generalizability (none / 0) (#5)
    by diogenes on Sun Nov 13, 2011 at 08:31:58 AM EST
    Are you then saying that the extrajudicial, targeted killing of people who are NOT American citizens IS constitutional?  If not, then what is the pertinence of al-Awlaki's citizenship?  If so, then maybe we can all agree to concentrate our extrajudicial killings on non-citizens.

    "extrajudicial" killing (5.00 / 1) (#6)
    by Edger on Sun Nov 13, 2011 at 10:21:44 AM EST
    is murder, no matter who the target.

    Do you generally like committing murder?


    Abraham Lincoln (none / 0) (#7)
    by Abdul Abulbul Amir on Sun Nov 13, 2011 at 10:29:15 AM EST

    Abraham Lincoln holds the record for that.  IIRC, his total pushed a quarter million.

    So? (none / 0) (#8)
    by Edger on Sun Nov 13, 2011 at 10:32:34 AM EST
    I asked him if he liked committing murder?

    Do you? Or only if someone else does it for you?


    Your premise (none / 0) (#10)
    by Abdul Abulbul Amir on Sun Nov 13, 2011 at 11:14:23 AM EST

    that killing enemies in war is "murder" is risible.

    "risible" is a con code word for (5.00 / 2) (#11)
    by observed on Sun Nov 13, 2011 at 11:30:16 AM EST
    "I don't have a clue".
    How many people did Lincoln have assassinated in France, say?

    I didn't expect either of you (5.00 / 0) (#12)
    by Edger on Sun Nov 13, 2011 at 11:30:47 AM EST
    to answer the question.

    Choosing to become what you claim to be fighting is not an easy thing to face, I understand.


    Let me help (none / 0) (#14)
    by jimakaPPJ on Sun Nov 13, 2011 at 02:03:59 PM EST
    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

    We are engaged in an asymmetrical war.

    That means we have to kill them when and where we can.


    You're going to start bombing yourselves? (none / 0) (#15)
    by Edger on Sun Nov 13, 2011 at 02:20:43 PM EST
    You might want to rethink that.

    There appears (none / 0) (#19)
    by jimakaPPJ on Sun Nov 13, 2011 at 06:43:21 PM EST
    to be an epidemic of denial when it comes to the fact that we are at war.

    And our thinking that we can make everything right by playing by the rules of nation state wars is so wrong that it makes my head hurt.


    So (none / 0) (#21)
    by Edger on Sun Nov 13, 2011 at 06:49:56 PM EST
    you want to be just like the people you call terrorists.

    I understand.

    That's what I said up above.

    Choosing to become what you claim to be fighting is not an easy thing to face, I understand.

    I guess I was wrong. In your case it appears fairly easy.


    No, what I want is for my government to take (none / 0) (#23)
    by jimakaPPJ on Sun Nov 13, 2011 at 11:31:21 PM EST
    the necessary actions to protect the country from being attacked by loosely organized groups of Islamic terrorists who have stated a desire to install Shariah law over the whole world.

    Now, I am not very happy about some of the tactics but I am a realist. That means I understand that what would work against another nation state will not work against the terrorist groups.

    And frankly I find your view as being beyond naive.


    Your opinion of me notwitstanding (none / 0) (#24)
    by Edger on Mon Nov 14, 2011 at 07:01:53 AM EST
    thanks for making my point in this thread. Always appreciated.

    Always glad to (none / 0) (#25)
    by jimakaPPJ on Mon Nov 14, 2011 at 02:32:37 PM EST

    But fighting terrorists (none / 0) (#26)
    by jimakaPPJ on Mon Nov 14, 2011 at 02:35:20 PM EST
    in an effective method rather than standing around waiting for them to surrender because a warrant has been issued for their arrest is hardly choosing to become like them.

    Thanks (none / 0) (#27)
    by Edger on Mon Nov 14, 2011 at 04:38:36 PM EST
    Glad you understand why we're after you.

    You missed the point (none / 0) (#28)
    by diogenes on Mon Nov 14, 2011 at 05:48:23 PM EST
    If extrajudicial killing is always wrong, then why does the citizenship of Al-A even matter?  

    You appear (none / 0) (#29)
    by Edger on Mon Nov 14, 2011 at 06:00:56 PM EST
    to have missed the entire thread. But then, no one expected you to get it.

    For some reason you seem to think (none / 0) (#30)
    by jimakaPPJ on Mon Nov 14, 2011 at 07:51:24 PM EST
    that people cannot disagree with you.

    that train already left the station. (none / 0) (#16)
    by cpinva on Sun Nov 13, 2011 at 03:57:21 PM EST
    Killing Americans on Secret Presidential Order is Not OK in a Democracy

    and torture used to be illegal as well. as did invading other countries, under false pretenses. also, too, the USSC deciding who would be president.

    and your point would be?