A Case for Unalienable Rights: Critiquing the Law on Targeting Killings of American Terrorists

In 2011, President Barack Obama authorized a drone strike to kill Anwar Nasser al-Awlaki, an operational leader of al-Qaeda “engaged in the planning and direction of attacks” against Americans.¹ At the time of his death, al-Awlaki was hiding in the Al Jawf Governorate of Yemen, a lawless region of the country beyond President Ali Abdullah Saleh’s practical jurisdiction, thereby preventing his capture and extraction.² Commenting on the strike, President Obama said, “The death of Awlaki is a major blow to Al-Qaeda's most active operational affiliate. He took the lead in planning and directing efforts to murder innocent Americans.”³ While this attack appears no different from the 541 other known drone strikes launched by the Obama administration, the strike on Al-Alawki was the first to target an American citizen never indicted for a crime in the U.S.^4,5

The targeted killing of an American citizen operating as a terrorist sparked a legal debate that persisted throughout the remainder of Obama’s presidency. Although it is undoubtedly the President’s legal right — and indeed his or her duty — to identify enemy combatants and ensure national security, American citizens are endowed with constitutional “unalienable rights” which even the President is not at liberty to violate.⁶ The most important of these rights, for the purposes of this debate, is the Fifth Amendment guarantee that no citizen shall “be deprived of life, liberty, or property, without due process of law.”⁷ It is typically the judiciary’s role to ensure these constitutional rights are not suppressed, even by the Executive during national security crises. This role has been defined time and again since the 1866 Ex Parte Milligan decision, in which the Supreme Court prevented President Abraham Lincoln from trying a Confederate sympathizer as an enemy combatant in a military commission court.⁸

The Obama Administration established a dangerous precedent by asserting the President’s independent legal authority to label citizens as enemy combatants using its own intelligence, judge whether there is sufficient evidence of guilt using its own standard of proof, and determine if targets must die to ensure public safety. Bypassing judicial oversight, the al-Awlaki incident sets a precedent enabling future Presidents to override citizens’ constitutional rights in the name of even spurious national security threats. To resolve the tension between upholding national security and citizens’ rights, the President should be required to receive judicial approval to target American citizens operating as terrorists.

The Obama Administration’s Position

After killing al-Awlaki, President Obama and the Department of Justice (DOJ) maintained that the strike did not violate any laws. According to the first of two DOJ memos defending the President’s action, President Obama had the legal right to kill al-Awlaki without a trial, given the imminent threat to public safety al-Awlaki posed. To justify this claim, the Administration needed to prove that al-Awlaki was a legitimate military target under international law and that his constitutional rights had not been violated. In the Administration’s view, it did.

International law defines two theaters of conflict—war zones and peacetime zones—which incur different regulations for targeted killings. War zones are governed by the law of armed conflict which deems all members of hostile groups admissible targets at any time.⁹ Peacetime zones, by contrast, are governed by human-rights law which only permits killing someone who poses an imminent threat, in self-defense, and as a last resort.¹⁰ These classifications were defined in the twentieth-century context of World War II battlefields when there was little ambiguity between peacetime and war zones. Twenty-first century amorphous terrorist threats and light-footprint warfare, however, have rendered peacetime and war zones no longer distinct, making it difficult to determine which sect of international targeting law applies to terrorists.

The Administration attempted to justify targeting al-Awlaki by blending peacetime and war-zone law. To apply war-zone law to al-Awlaki’s situation, the Administration declared all regions not controlled by an active peacetime government war zones, including rural Yemen. Under war-zone law, the US need not provide legal due process to suspected targets, so long as the US is engaged in an active, armed conflict with the target’s militant organizations.¹¹ Since President Obama declared the US to be in an armed conflict with al-Qaeda, the DOJ asserted that the CIA evidence confirming al-Awlaki was an al-Qaeda operative rendered him a legitimate military target ineligible for legal protection. The Administration claimed that killing al-Awlaki was also justified under peacetime-zone law. For this to be true, however, al-Awlaki needed to have posed an imminent threat to US security. Although no evidence was publicly presented that al-Awlaki was actively engaged in facilitating an attack against Americans, the Administration merely asserted that all “significant individual [terrorist] operatives [...] pose a continuous and imminent threat” to US security given terrorists’ modus operandi of unpredictable, coordinated violent attacks.¹² Blending war and peacetime-zone law, the Obama administration dramatically expanded the Executive branch's power to determine when individual liberties can be suppressed in the name of national security. Under the Obama precedent, the President has the power to determine not only the response to national security threats but also the level of evidence required to label someone an imminent national security threat. At the time of his death, al-Awlaki was in hiding, and no evidence suggested he was actively enabling a future attack against the US. However, under the Administration’s amalgamation of international law, al-Awlaki’s mere status as a “significant terrorist operative” rendered him both a war zone “enemy combatant” and a peacetime zone “imminent threat” whose death was necessary to ensure national security, irrespective of his actions.

After establishing al-Awlaki as a legitimate military target, the Administration further attempted to defend the constitutionality of killing him, an American terrorist, without traditional due process. For precedent, the DOJ looked to Hamdi v. Rumsfeld (2004), in which the Supreme Court upheld that citizens captured as enemy combatants in Afghanistan can be held as wartime prisoners, demonstrating that standard due process can be diminished if there is a great enough risk to public security.¹³ Since the Administration’s interpretation of peacetime-zone law declared that all terrorists pose an “ongoing and imminent threat to public safety,” the DOJ’s conclusion authorized the President to kill any US citizen identified as a terrorist. The DOJ, therefore, concluded that the only due process to which al-Awlaki was entitled was “a review by executive-branch officials of intelligence tying him to terrorism.” Based on the CIA’s conclusions, “it was reasonable to kill him if that was necessary to bring an end to the threat to public safety he presumably posed.”¹⁴ In essence, the DOJ established a new standard of due process for American citizens suspected of terrorism in which merely the President’s determination of a threat to public safety is sufficient to warrant an government-sanctioned execution. Speaking about al-Awlaki, President Obama said, “His citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a SWAT team.”¹⁵ While this process may seem too prudent to enable swift action against terrorists, it allows American citizens to be summarily executed without any checks on Executive-branch judgement or legal recourse for opposing the Presdient’s actions.

A Case for Inalienable Rights

While the Obama Administration was justified in asserting that the President may kill US citizens who are enemy combatants and pose an imminent threat to public safety, its proposed methods for determining who poses such a threat violate citizens’ constitutional due process rights. Although the Administration claimed al-Awlaki received a standard of due process commensurate with the potential threat he posed, the CIA review process outlined by the DOJ relies on vague rules and principles which give the Executive branch unilateral authority to determine if a citizen’s death is necessary to ensure national security. This ensures, among many other things, that judges cannot set different standards of evidence for different defendants and that prosecutors cannot change definitions of crimes based on who they accuse. Based on the procedures used in al-Awlaki’s case, there was no criteria for what type or amount of evidence the CIA must provide to tie a suspect to terrorism, and past CIA reviews cannot be used as precedent because they are classified.¹⁶ By not articulating standards of evidence, the DOJ has enabled the CIA to change how they determine if a citizen is a terrorist on a case-by-case basis. Given that the CIA reports to the President, this ad hoc standard of due process gives the Executive unilateral authority to determine if a citizen is a terrorist and can be legally executed.

Although President Obama was likely correct to label al-Awlaki a terrorist, the due process system he established enables future Presidents to target US citizens unnecessarily or — in extreme circumstances — for corrupt purposes. Future Presidents acting in their commander-in-chief capacity may be hasty in labeling individuals as terrorist operatives who merely exhibit suspect behavior. Modern terrorist threats are becoming increasingly amorphous and defining those entitites with whom the US is engaged in an “active conflict” can be incredibly difficult. Under current due process, a President could conceivably target a citizen who traveled to Syria after following extremist social media pages. While targeting such an individual may be necessary, there is currently nothing to prevent a President from doing so if the target is not truly a threat. Indeed, a President could theoretically label a political opposition group a “terrorist organization” and legally kill anyone working for that organization. Without clear, consistent standards of evidence for labeling someone a terrorist, these speculations may very well become reality.

Any due process system which exclusively allows the Executive to determine if citizens are guilty of a crime which condemns them to death violates the spirit and law of the Fifth Amendment “right to due process.” Since its inception in the Magna Carta, the right to due process has represented a fundamental principle of government; the Executive is not above the law and may not deprive citizens of their rights to “life liberty, or property” unless they commit a crime.¹⁷ Therefore, legitimate due process must include standards which determine if someone has committed a crime and decentralized authority regulating if these standards are met. For example, requiring judicial review of evidence used in CIA-terrorists determination could prevent the Executive from subjectively depriving citizens of their rights. However, “[t]he U.S. targeted killing program operates without meaningful oversight outside the executive branch,”¹⁸ enabling a President to deprive suspected terrorists of their lives based on personal judgement.

References

1. Charlie Savage, Power Wars (New York: Little, Brown, and Company, 2015), page 235. ↩

2. Jennifer Griffin, “Two U.S.-Born Terrorists Killed In CIA-Led Drone Strike,” Fox News, Sept. 30, 2011. ↩

3. Ibid. ↩

4. Micah Zenko, “Obama’s Final Drone Strike Data,” CFR, Jan. 20, 2017.  ↩

5. Christopher Faulkner and Jeff Rogg, “Ten Years After Killing al-Awlaki,” Modern Institute of War at West Point, Sept. 27, 2021.  ↩

6. U.S. Declaration of Independence, Paragraph 2 (1776). ↩

7. U.S. Const., Amend. 5. ↩

8. Ex parte Milligan, 71 U.S. 2 (1886).  ↩

9. Charlie Savage, Power Wars (New York: Little, Brown, and Company, 2015), page 240. ↩

10. Ibid.  ↩

11. Ibid, 243. ↩

12. Christopher Faulkner and Jeff Rogg, “Ten Years After Killing al-Awlaki,” Modern Institute of War at West Point, Sept. 27, 2021.  ↩

13. Charlie Savage, Power Wars (New York: Little, Brown, and Company, 2015), page 239. ↩

14. Charlie Savage, Power Wars (New York: Little, Brown, and Company, 2015), page 238. ↩

15. Barack Obama, Speech on Drone and Counterterrorism Policy, May 23, 2013.  ↩

16. “Targeting Killing,” American Civil Liberties Union, accessed Nov. 22, 2021, https://www.aclu.org/issues/national-security/targeted-killing. ↩

17. “Due Process,” Legal Information Institute Cornell Law School, accessed Nov. 22, 2021, https://www.law.cornell.edu/wex/due_process.  ↩

18. “Targeting Killing,” American Civil Liberties Union, accessed Nov. 22, 2021, https://www.aclu.org/issues/national-security/targeted-killing. ↩