Executive Kill Switch
Should the president have the power to kill anyone he considers an enemy?
After FBI agents took custody of Umar Farouk Abdulmutallab, the Nigerian who tried to blow up a Northwest Airlines flight on December 25, 2009, they told him he had the right to remain silent. For Anwar al-Awlaki, the American-born cleric who allegedly helped plan Abdulmutallab's mission, that right was more like an obligation, enforced by Hellfire missiles fired at his car from remotely controlled CIA aircraft in northern Yemen at the end of September.
President Barack Obama's policy regarding people linked to terrorism is clear: They are to be treated like criminal defendants with constitutional rights, except when they are treated like enemy soldiers in the heat of battle, subject to death dealt from a distance. Although this flexibility has obvious advantages in waging the never-ending war on terrorism, it threatens to transform the elected executive of a republic into a dictator with summary execution power.
That danger may seem theoretical in light of Awlaki's public record of fomenting violence against Americans. Regarding the U.S. Army psychiatrist accused of killing 13 people in a shooting rampage at Fort Hood, Texas, the month before Abdulmutallab was caught with plastic explosives in his underwear, Awlaki bragged: "Nidal Hasan is a student of mine, and I am proud of this.…I call upon anyone who calls himself a Muslim, and serves in the US army, to follow in the footsteps of Nidal Hasan." Faisal Shahzad, who tried to set off a car bomb in Times Square in 2010, also cited Awlaki as an inspiration.
The U.S. government claims Awlaki, a U.S. citizen whom experts perceived as a threat mainly because of his rhetorical appeal to English-speaking Muslims, not only advocated terrorist attacks but helped plan them as a leader of Al Qaeda in the Arabian Peninsula. Yet the extent of his involvement remains unclear, and the Obama administration seems determined to keep it that way.
Announcing Awlaki's death, Obama called him "the leader of external operations for Al Qaeda in the Arabian Peninsula"—the first time he had ever been described that way. The president also claimed Awlaki "took the lead in planning and directing efforts to murder innocent Americans."
At a press briefing later that day, four reporters asked White House spokesman Jay Carney for evidence to back up those allegations. "I don't have anything for you on that," Carney said, refusing even to acknowledge that the U.S. government had killed Awlaki, let alone explain the rationale for the secret decision that marked him for death.
While Awlaki may have been guilty of everything the administration claims, it is not hard to imagine how a program of classified, unreviewable death decrees might go awry, especially in the service of a perpetual, geographically undefined war against an amorphous enemy. Endorsing Obama's "targeted killings," Sen. Lindsey Graham (R-S.C.) declared that "restricting the definition of the battlefield" or "restricting the definition of the enemy" would be reckless because "this is a worldwide conflict without borders."
Writing in The New York Times, Jack Goldsmith, an assistant attorney general in the Bush administration, acknowledged that the unilateral power to kill anyone the president identifies as an enemy is "fraught with the danger of executive overreach or mistakes." But "so far," Goldsmith assured us, "it appears" Obama is using his license to kill "with caution." After all, "before someone like Mr. Awlaki is targeted, multiple intelligence sources support the conclusion that he is a dangerous threat, top lawyers from many agencies scrutinize the action, [and] policy makers at the highest levels of government approve the action after assessing its legal and political risks."
Or so we're told, by former insiders like Goldsmith and unnamed officials quoted in news stories on the condition that they not be identified. The Obama administration can't even be bothered to say "trust us" on the record.
Jacob Sullum is a senior editor of reason.