On April 6th of this year, the New York Times reported the following, detailing Barack Obama’s most aggressive assertion of executive power since his term began:
The Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen, the radical Muslim cleric Anwar Al-Awlaki, who is believed to have shifted from encouraging attacks on the United States to directly participating in them, intelligence and counterterrorism officials said Tuesday.
Awlaki is without doubt a controversial figure, alleged to have been directly invovled with the Fort Hood Shootings in November of 2009 and with the “underwear bomber” one month later. While it is possible that Awlaki may pose a threat to national security, the notion of a US citizen being targeted for assassination is rather unprecedented – the Times article claims that this was never the case under Bush Jr.’s presidency – and raises alarming questions with regard to the Obama administration’s employment of executive power, questions of a legal as well as moral nature.
Nonetheless, no matter how controversial a figure Awlaki may be, and though he may be guilty of those charges levelled against him, the actions taken against him ought to cause great concern given their implications for the constitutional right of due process guaranteed to all American citizens. Furthermore, these actions are downright subversive of the principle of shared rules within a legal order, rules which are meant to be enforced consistently and impartially in disputes between citizens as well as disputes between citizens and their government. Such is the foundation of any society based upon the rule of law, a principle which is threatened when fairness and a commitment to act according to established rules is jettisoned. The crucial necessity for fair enforcement is asserted throughout the history of legal and political thought, John Locke going so far as to liken those who breach common and established rules to “…a lion or tiger, one of those savage beasts with whom men can have no society and security.”
What theorists like Locke saw in our animal counterparts was a total lack of order, an existence driven by instinct rather than reason and one utterly devoid of morality. Without commitment from men to make binding upon themselves as well as others a common set of rules and procedures for enforcing those rules there is no hope for cooperation or a sustainable society. All that remains in this case is outright savagery and an unmitigated moral disaster. In the case of targeted assassinations outside war zones, particularly where US citizens are concerned, Barack Obama is facilitating the greatest moral disaster in his young administration by directly subverting the right of due process and refusing to abide by a set of rules which are binding upon citizens as well as their government.
The legal ramifications of this case are relatively straightforward and concern the Fifth Amendment of the US Constitution, which guarantees due process of law. In their report on the Obama administration’s human rights and civil liberties record, the ACLU outlines the gravity of targeted killings. The report is well worth reading in its entirety, but the relevant section states,
The entire world is not a war zone. Outside of armed conflict, lethal force may be used only as a last resort, and only to prevent imminent attacks that are likely to cause death or serious physical injury. According to news reports, the program the administration has authorized is based on “kill lists” to which names are added, sometimes for months at a time, after a secret internal process. Such a program of long-premeditated and bureaucratized killing is plainly not limited to targeting genuinely imminent threats. Any such program is far more sweeping than the law allows and raises grave constitutional and human rights concerns. As applied to U.S. citizens, it is a grave violation of the constitutional guarantee of due process.
Among the most vital elements of the right of due process, and the one to which the passage above alludes, is that of a fair trial, which includes the right of the accused to hear and answer to the charges raised against them before any conviction can be implemented. This principle is most clearly enumerated in Snyder v. Massachusetts, which makes reference to guarantees of the Fourteenth Amendment which ensures that due process, and thus the Fifth Amendment, is safeguarded. The opinion of the Supreme Court asserts,
…in a prosecution for a felony, the defendant has the privilege under the Fourteenth Amendment to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge. Thus, the privilege to confront one’s accusers and cross-examine them face to face is assured to a defendant by the Sixth Amendment in prosecutions in the federal courts (Gaines v. Washington, supra, at p. 277 U. S. 85), and, in prosecutions in the state courts, is assured very often by the constitutions of the states.
What is taking place in Awlaki’s case is almost certainly an instance of punishment without due process. Awlaki, currently living in Yemen, is well outside any war-zone and so far as we can see poses no imminent threat to the United States, leaving the Obama administration without the defence that this killing, and others like it, is being carried out as a last resort to prevent pressing threats. President Obama and his administration therefore lack any rational basis by which to justify this incredible leveraging of executive power which in turn risks one of the most treasured principles of American democracy and of any legal order, namely the right to not face punishment without legal representation and a fair trial.
The Constitution is, stated bluntly, the supreme law of the land and no man stands above it. Bill Quigley, a director at the Centre for Constitutional Rights, an organization currently seeking to represent Awlaki along with the ACLU, takes careful note of Constitutional supremacy and the Obama’s disregard for this all important principle in a recent piece in Truthout. Quigley states,
There are many reasons we can argue that premeditated killing by the government off the battlefield is illegal. The rule of law guaranteed by the US constitution binds even the President of the US and the military. Our constitutional system of checks and balances does not allow the executive branch of government to just decide in secret that they are going to kill people. The government certainly could not just execute him if he was in the US. The US would not allow other governments to come here and assassinate someone they opposed. And the US would never just fire drone strikes into the UK, China, Russia or Australia to kill someone. Yemen is over a thousand miles away from the battlefield of Afghanistan or Iraq. So why would anyone think it is legal to assassinate a US citizen in Yemen?
Awlaki’s case, and the targeted killing program as a whole, thus raises serious legal questions, but digging deeper into the details of the case raises further moral questions about the role of the state and the rights of citizens, both of which are challenged significantly by the administration’s actions. Until recently, Awlaki was denied the right to legal representation based on regulations by the Treasury Department which prohibited transactions with any individual or group labelled by the government as a terrorist or terrorist organization. Such transactions extend to legal representation and initially prohibited the ACLU and CCR from acting as pro-bono lawyers for Awlaki, as any lawyer seeking to represent any one on a government list was required to obtain permission from the Treasury Department. According to Politico’s Josh Gerstein, the Treasury has allowed Awlaki to be represented but the licensing system that requires certain individuals or groups to seek permission before suing their government or being given due process remains.
The moral problem raised by such a licensing system concerns the Obama administration’s willingness to ignore the explicit provisions of the Constitution which outline a set of rules biding on all individuals and groups and instead play by their own arbitrary rules. The process by which these terrorist lists are made are indeed secretive, as are their criteria, and it is safe to assume that there are many on this list who are unaware of their presence on such a list. Nonetheless, it is clear that Awlaki and the government that is pursuing him are not playing by the same set of rules if the latter can place themselves above those rules at will.
In his excellent piece “The Moral Significance of Terrorism,” Yale professor Matthew Noah Smith asserts the necessity that even mortal enemies in war ought to abide by a common set of rules in order to achieve what Smith refers to as “trust-dependent goods.” Such goods include minimal collateral damage, quicker cessation of the conflict, and a lasting peace. Smith asserts that when each combatant plays by their own set of rules without regard to those of their enemy, “each side will take the other side not only to be fighting as scoundrels but also to be aiming at illegitimate targets and therefore to be particularly bloodthirsty.” Here Smith speaks of the moral disaster and escalation into savagery wrought in conflicts between nations – specifically when noncombatants are mistreated – but these principles and the value of shared rules are certainly applicable to relations between citizens and their government and are particularly significant in the case at hand.
Continuing with his examination of shared rules between warring enemies, Smith states,
If two enemies are bound by shared rules of war, then both warring parties, despite massive enmity for each other, can be certain in their expectations that their enemies will follow the rules. This certainty allows enemies to view each other as agents capable of and willing to bind themselves to publicly recognizable rules that each can take to be reasonable. This is to be contrasted with cases in which two enemies fail to be bound by shared rules of war. In such a case, each party confronts the others as utterly alien and not the sort with whom society is possible.
The situation is not entirely different in a common society between men. As in the aforementioned thoughts of John Locke and perhaps moreso in the work of Thomas Hobbes, men enter a common agreement as agents with different interests who require a certain level of security in order to ensure cooperation. We expect that each of us will operate under the same set of rules which will be impartially enforced. We expect a certain level of certainty, knowing when, how and for what actions we will be punished as well as the additional certainty that those guilty of the same transgressions will face the same punishment. Furthermore, we expect that we will be fairly and justly punished rather than arbitrarily disciplined and that said punishment will not be implemented without proof of transgression.
From these shared rules of a society, we gain the trust-dependent goods of respect and a willingness to act in cooperation with one another rather than engaging in outright savagery. After all, what else would be do if we were perpetually uncertain as to when we would be persecuted? Smith concludes that shared rules, “however then and fragile, prevent us and our enemies from falling into utter savagery when the only peace between us is likely to be the peace of the graveyard.”
In carrying out targeted killings, especially those against his own countrymen, President Obama has disregarded the shared rules that ensure certainty and stability by ensuring that punishment remains efficient, effective, and most importantly, just. The law is explicitly clear on the rights of citizens and the limitations of the executive branch where criminal prosecutions are concerned and these rules are supremely entrenched in the US Constitution, which as previously mentioned is the supreme law of the land. Disregarding the constitution, which ensures a cooperative and equal society, is to undermine the legitimacy of the state itself. Citizens rightly expect that their government will treat them fairly and grant them the right to defend themselves against charges, whether or not they are guilty. This is one of the key purposes of instituting a government and the Obama administration is undermining this principle and itself with these targeted killings.
This is without doubt one of the great, if not greatest, moral questions that President Obama will have to address in his tenure. More than simple policy or methodology, this question forces Barack Obama to address the question of what kind of president he wants to be and what kind of country he wants to lead. Does he wish to lead a nation ruled by law and fairness, or would he rather act as a rogue president who is not limited by rules which bind him by disregarding the Constitution and targeting citizens well outside the borders of war when they pose no imminent threat?
America needs its justice system because while it is not without its flaws, it does allow for the employment of robust legal resources in order to determine who is guilty and who is not, keeping punishment just. To deny a citizen these legal resources is simply unjust and unconstitutional and also opens up doors for further moral disasters. It is well known by now that the US government has not been particularly adept at locating and punishing actual terrorists given the amount of detainees held indefinitely at prisons like Guantanamo without charge as well as those who turn out to have been falsely charged with terrorist activity. In the case of targeted killings, we should not discount the possibility that certain individuals on government lists have been placed there without reason and might potentially be targeted and killed despite their innocence. The ACLU report takes note of this in the following passage:
The program also risks the deaths of innocent people. Over the last eight years, we have seen the government over and over again detain men as “terrorists,” only to discover later that the evidence was weak, wrong, or non-existent. Of the many hundreds of individuals previously detained at Guantánamo, the vast majority have been released or are awaiting release. Furthermore, the government has failed to prove the lawfulness of imprisoning individual Guantánamo detainees in some three quarters of the cases that have been reviewed by the federal courts thus far, even though the government had years to gather and analyze evidence for those cases and had itself determined that those prisoners were detainable.
What the ACLU describes in the potential killing of innocents is the very pinnacle of disorder, and such disorder is not outside the realm of possibility in Obama’s targeted assassinations. Problems of retaliation by disgruntled groups are also possible, only exacerbating the problem of terrorism. Glenn Greenwald, as expected, offers the most eloquent summation of the moral reprehensibility of these killings. In the concluding paragraph of his piece, Greeenwald asserts,
…it should offend every American that the Government purports to have the power to ban lawyers from representing citizens without its permission, which (as it’s doing here) it can withhold without explanation and in its sole discretion. Does any American want the Government to have that power with respect to citizens: to bar lawyers, under the threat of criminal prosecution, from representing you if the Government calls you a Terrorist? That’s the power the Obama administration is asserting and, in this case, actively wielding. A court will now decide if it has the legal authority to do that, and if the court decides it does not, the next step will be a lawsuit brought on behalf of Awlaki contesting Obama’s authority to order American citizens killed without any criminal charges or due process. The Obama administration should be very proud of itself.
Greenwald’s statement captures the moral ramifications of the administration’s actions and forces each citizen to ask themselves whether or not they would consent to their government deciding when it is fit for them to be represented in a court of law. If you believe that you deserve such representation no matter your actions, then why should it be different for any other citizen? No matter how reprehensible their crimes, no one is undeserving of a fair trial and the opportunity to answer to the charges raised against them, and it is a grave disappointment that the Obama administration does not have the faith in the justice system to punish those who are guilty and have opted instead to engage in the type of moral savagery entailed by targeted assassinations.
Here is the citation for Matthew Noah Smith’s paper:
“The Moral Significance of Terrorism,” in Philosophy of Law, 8th Edition, Jules Coleman and Joel Feinberg, eds.