The title of the Department of Justice white paper sounds clinical and dispassionate: “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force.” The reality it attempts to justify is considerably messier: the killing, without judicial review, by drone of United States citizens working with Islamist terrorist organizations without judicial or congressional oversight.
But shall such attacks also go without moral critique? Regardless of the targets’ individual guilt, aren’t we still a nation of laws and not men? Or have we abdicated our moral responsibility to a president who boasts that he personally chooses his targets from “kill lists”?
According to press reports, four Americans since 2002 have died this way. Two of them died in Yemen in September 2011, ten years after the September 11 terrorist attacks that left nearly 3,000 of their fellow citizens dead. According to NBC News, Anwar al-Awlaki and Samir Khan died in a missile strike in Yemen on September 30, 2011. A third target, al-Awlaki’s son, Abdulrahman, was killed in the country weeks later.
The Justice Department provides three criteria for such “lethal operations”: The American citizen must represent an “imminent threat,” his capture must be “infeasible,” and the strike must be conducted according to “law of war principles.” Let’s take the three in turn.
First, at a speech last year at Northwestern University Law School, Attorney General Eric Holder said such attacks could be justified if there is “an imminent threat of violent attack.” Yet the white paper memo refers to a “broader concept of imminence” than an immediate attack that must be stopped. It says this new understanding of imminence is met if a government official determines that the target has “recently” been involved in “activities” posing a threat of violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.”
As Jameel Jaffer, deputy legal director of the ACLU, said, the memo “redefines the word imminence in a way that deprives the word of its ordinary meaning.”
Second, regarding whether capturing the suspect would be “infeasible,” the memo seems to be saying, at least sometimes, that arrest and trial—guaranteed by the Constitution—are less preferable than simply killing a target. (One reason might be the risk to U.S. forces in apprehending a suspect.) Where is the moral outcry from civil libertarians who lost their minds over “warrantless wiretaps” and waterboarding under a Republican administration? Isn’t killing worse?
Third, the Justice Department memo says that any attack must be conducted according to “law of war principles.” Generally, internationally recognized “laws of war” aim to limit the scope and duration of war, while protecting the human rights of noncombatants.
However, Glenn Greenwald, a constitutional lawyer, describes the memo as “fundamentally misleading,” saying, “If you believe the president has the power to order U.S. citizens executed far from any battlefield with no charges or trial, then it’s truly hard to conceive of any asserted power you would find objectionable.”
Just War criteria, from which many Law of War principles are derived, include distinguishing between legitimate and non-legitimate targets, understanding the principle of proportionality (are the means used excessive compared with the anticipated military gain?), and using the minimum necessary military force. Clearly the use of extrajudicial drone strikes against American citizens calls into question whether all three criteria are being violated. And without any oversight of these attacks, how can even well-intended officials be sure they haven’t crossed a moral line—or that they won’t in the future?
But even aside from whether killing American citizens affiliated with terrorist groups is legally and morally permissible, we must also grapple with the issue of drone killings themselves. The number of such attacks is growing rapidly, from 294 in Afghanistan in 2011 to 447 in the first 11 months of last year. A decade ago, the U.S. military had 50 drones; today, it uses more than 7,500 such technological wonders. This trend should be no surprise, as drones are a relatively cheap and easy way to accomplish military objectives with little risk to American personnel.
But is there an added moral question when you no longer have to look your enemy in the eye before shooting him, but can pull the trigger in air-conditioned comfort, thousands of miles away? What happens when killing, whether justified or not, becomes too easy?
“There's a remoteness to it,” President Obama is quoted as saying, “that makes it tempting to think that somehow we can, without any mess on our hands, solve vexing security problems.”
And Americans working with Muslim terror groups abroad aren’t the only ones who ought to worry. Drone technology is showing up in the United States in everything from real estate to law enforcement—theoretically, at least, infringing on the privacy rights of citizens. Virginia’s legislature has passed a moratorium on the technology until 2015, and nine other states are seeking to restrict its use.
“The use of drones across the country has become a great threat to our personal privacy,” says ACLU of Montana’s Niki Zupanic. “The door is wide open for intrusions into our personal private space.”
Where is the reasoned public discussion about the ethics and morality of this rapidly encroaching technology—both on the battlefield and in our backyards? As always, science can tell us what is possible, but it is utterly silent on what is right.
Image copyright U.S. Customs and Border Protection/AP.
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