When President Obama came forward with the news Thursday that a US “counterterrorism operation” had accidentally killed an American and an Italian hostage in January, he also revealed that two Americans associated with Al Qaeda had also recently been killed accidentally.
The revelations have once again sparked questions about the circumstances under which the United States can intentionally use targeted lethal force against American citizens abroad.
Ahmed Farouq and Adam Gadahn were both Americans who officials say were senior members of Al Qaeda.
Mr. Farouq was killed in the same strike in which Giovanni Lo Porto and Warren Weinstein, the American hostage, died.
Mr. Gadahn was also killed in January, but “likely in a separate US government counterterrorism operation,” according to a White House statement. “While both Farouq and Gadahn were Al Qaeda members, neither was specifically targeted, and we did not have information indicating their presence at the sites of these operations.”
What Mr. Obama did not share was that the counterterrorism operations that killed all these Americans involved drone strikes – a fact that American officials relayed in unattributed remarks.
Drone operations have helped to drive the thorny question about the president’s authority to order the killing of US citizens without a trial.
A 2011 Department of Justice memo says that to legally order the death of a US citizen without a trial, the government must determine that the citizen is “a senior Al Qaeda leader or an associated force” who is “actively engaged in planning operations to kill Americans.”
“The DOJ basically argued that if you could satisfy those criteria, the president has sufficient authority” to order the killing, says Christopher Swift, adjunct professor of national security studies at Georgetown University in Washington.
Yet there are, too, the Constitution’s Fifth Amendment prohibitions against depriving citizens of life and liberty without due process of law.
The US government’s lawyers have argued that in the case of “imminent threat,” this due process is not required.
“In other words, you don’t have to arrest someone to put them on trial while they’re trying to kill you,” Dr. Swift says.
“If a bank robber has a hostage and is walking down the street with a gun to the hostage’s head, that’s an imminent threat. By imminent, we mean right now, not next week,” he adds. “Then we don’t have to worry about the Fifth Amendment.”
The problem with the Justice Department memo, many analysts agree, is that the definition of imminent has gotten “very stretched,” as Swift puts it.
It doesn’t help that the specific circumstances surrounding what the US government considers to be an “imminent” threat are classified in a CIA annex, “so us mere mortals don’t get to see what those facts are,” Swift says.
The US Supreme Court, for its part, has made it clear – in a very different sort of case involving denial of someone’s Social Security benefits – that its definition of “due process” for US citizens does not necessarily involve a trial “if you can show that there’s been sufficient review,” he says.
The standard of “imminent” threat is far more problematic for the US government, since it is nearly impossible to determine that a senior American Al Qaeda official is indeed engaged in planning a strike that is moments away from harming an American.
The American Civil Liberties Union (ACLU) brought a case to the New York courts on behalf of the father of Anwar al-Awlaki, an American imam who was intentionally killed by the US without a trial.
The New York courts dismissed the case on national security grounds, however. “They were basically saying that they didn’t want to deal with the issue,” Swift says.
As a result, the 2011 Justice Department memo “is hanging out there as the only form of legal authority,” he adds. “And it’s a totally unsatisfactory one, because their imminence analysis is poor and their reliance on due process is vague.”
That said, “I don’t think the guys who wrote the US Constitution would have any problem” with killing US citizens who are Al Qaeda leaders. “They wouldn’t see citizenship as a shield protecting somebody who signs up to fight with adversaries.”
During the Civil War, Union soldiers required no special dispensation to kill Confederates, says Anthony Cordesman, a defense analyst at the Center for Strategic and International Studies in Washington.
What’s more, without a formal objection from Congress, US presidents are given all sorts of authorities under the umbrella of protecting America’s national security. Abraham Lincoln suspended rights of habeas corpus. Franklin D. Roosevelt ordered US-born Japanese-Americans to internment camps, and even extradited Americans of Japanese descent who were living in Latin America in order to put them in these camps.
“I think we are just forgetting the entire history of the United States,” Dr. Cordesman says.
Until the courts take up the case or Congress formally objects, the practice will probably continue if Obama decides it should.
“If the Supreme Court can possibly get away with it, it’s going to avoid making this decision,” Cordesman adds. “Because it raises issues of constitutionality that are not clearly covered in the Constitution.”