Drone Strikes & Due Process: A Legal Analysis of Targeted Killing

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“Whatever disagreement there may be as to the scope of the phrase ‘due process of law,’ there can be no doubt that it embraces the fundamental conception of a fair trial, with opportunity to be heard.”
—Justice Oliver Wendell Holmes Jr., dissenting, Frank v. Magnum, 1915

When President Obama authorized a drone strike in Yemen that targeted and killed US citizen Anwar al-Awlaki, the The New York Times (NYT) described the decision as “extremely rare, if not unprecedented[.]” Less than two-and-a-half years after the first targeted strike against a US citizen, however, and Obama appears poised to make that decision once again. Abdullah al-Shami, the nickname of an otherwise anonymous man alleged to be a top Al-Qaeda terrorist living in Pakistan, is the latest US citizen in the Administration’s cross-hairs. As Glenn Greenwald has written, these strikes against US citizens are being executed “[w]ithout any due process, transparency or oversight[.]” This week’s NYT article by Matt Mazzetti and Eric Schmitt about the potential killing of al-Shami—entitled “U.S. Militant, Hidden, Spurs Drone Debate”—disregard Greenwald’s concerns and focus on an entirely different debate. By avoiding questions about the constitutionality or transparency of drone strikes targeting US citizens, however, the NYT implicitly suggests those issues don’t matter. Here at the Fourth Estate Watch (FEW), we believe they do.

Mazzetti and Schmitt are correct when they state that the decision surrounding al-Shami’s fate “encapsulates some of the thorniest questions raised by the targeted killing program that Mr. Obama has embraced as president,” but their article somehow manages to miss all of them. Crucially, for example, the authors ask “under what circumstances the government may kill American citizens without a trial,” instead of asking whether the government can kill American citizens without a trial. The second question is essential because the Fifth Amendment states that “no person” shall be “deprived of life, liberty, or property, without due process of law,” which generally requires that the accused be afforded the right to examine the evidence against him, the right to counsel, the right to examine witnesses, the right to have his case heard before an impartial tribunal, etc. Under the Obama Administration’s targeted killing program, by contrast, you can be “deprived of life” after a group of anonymous government officials decide to authorize a drone strike against you (which is what happened to al-Awlaki). How, then, can President Obama’s targeted killing of US citizens be said to square with the Fifth Amendment? In the case of al-Shami, the Obama Administration hasn’t even disclosed his real name, notwithstanding Obama’s previous promise of an “unprecedented level of openness in Government.” How can the government be “open” in any meaningful sense if it can authorize a drone strike against a US citizen abroad in near-total secrecy?

Instead of addressing the constitutionality of targeted killings of US citizens, though, the NYT prefers to ask “whether the CIA or the Pentagon ought to be the dominant agency running America’s secret wars[.]” That strikes us as a secondary concern, something far less critical than questions relating to overall credibility and accountability. One of the anonymous U.S. officials interviewed for the article, for example, asserts that “[w]e have clear and convincing evidence that [al-Shami is] involved in the production and distribution of I.E.D.’s” without offering anything concrete in support. Given that the NYT has previously apologized for part of its reporting in the lead-up to the invasion of Iraq, stating that US government claims about Saddam Hussein were “allowed to stand unchallenged,” one wonders why the paper published the official’s comment about al-Shami without asking for elaboration or corroboration. In 2004 the NYT lamented that “we wish we had been more aggressive in re-examining the claims” made by the US government, yet in 2014 the paper seems unable to apply that lesson to the targeted killing of US citizens.

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The mistake may have far-reaching implications. If and until journalists begin to question the government aggressively regarding the constitutional concerns over the targeted killing of US citizens, this once-rare event will only proliferate. After all, the NYT itself tells us the debate on whether to kill al-Shami “comes less than a year after Mr. Obama announced new guidelines to tighten the rules for carrying out lethal drone operations” (emphasis ours). Let’s keep in mind that what we are talking about is the US government’s alleged authority to kill a US citizen without offering that person any opportunity to examine evidence, consult counsel, or present their case. That is an extreme proposition, and that it may soon happen twice in under three years should startle everyone. And not only do Obama’s new guidelines not appear to have tightened anything at all, we don’t even know what those guidelines are since they are kept hidden from public scrutiny.

With the targeted killing of US citizens wrapped in so much secrecy, it is perhaps unsurprising that the NYT concludes that “[i]t is unclear what Mr. Obama’s position is on whether Mr. Shami should be targeted.” But perhaps the President need not speak for us to know his position. Given that he has already authorized the targeted killing of one US citizen (al-Awlaki) and that he is currently weighing the decision whether to do so again, it is clear that the President believes the US government can satisfy the Due Process clause of the Fifth Amendment by unilaterally, and in secret, deciding whether a US citizen abroad should be placed on a list for targeted killing. That tells us everything we need to know.

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Government DoubleSpeak & the Permanent War Footing

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“The Party told you to reject the evidence of your eyes and ears. It was their final, most essential command.”
—George Orwell, 1984

While the phrase “War on Terror” may have dropped from official parlance years ago, the term’s core feature—a violent conflict that knows no limits in terms of time or terrain—remains part and parcel of U.S. counterterrorism policy. Here at the Fourth Estate Watch (FEW), we look at the media’s discussion of the current drone war and we’re left wondering whether the more things change, the more they stay the same. Yesterday we learned from The Intercept that NSA surveillance of electronic metadata provides the intelligence behind many drone strikes, and we also learned from the Associated Press that the Obama Administration is weighing whether to kill (another) U.S. citizen via drone strike abroad. Taken together, these reports suggest that the U.S. government’s “Assassination Program”—to borrow the phrase from Glenn Greenwald & Jeremy Scahill—has expanded beyond the realm of reason or rationality. Indeed, that the U.S. government even has such a program should shock and awe those who value national sovereignty, international law, human rights, the U.S. Constitution, and human dignity. If we are to have any hope of changing the tide of history, however, we must begin to wrestle with the reality that this war has no end. After all—how can we hope to confront what we have not yet understood?

When President Obama declared that “America must move off a permanent war footing” in his State of the Union (SOTU) address, he could only have been intentionally channeling Orwellian DoubleSpeak for that phrase to make sense. In its first of a three-part series on Obama’s counterterrorism practice of targeted killing, for example, The Washington Post (Post) details the “disposition matrix” that the Obama Administration employs to determine whether an individual in the matrix lives or dies. A critical aspect of the Post’s article emerges partway through: the targeted killing program transcends the boundaries of time. “Among senior Obama administration officials,” the Post reports, “there is a broad consensus that such [targeted killing] operations are likely to be extended at least another decade” (emphasis ours). That time frame—another decade—would drag the drone war into 2024. Some Administration officials apparently conceded 2024 may be closing the curtain too soon on targeted killings, noting there was “no clear end [in] sight” for the program, and that there are plans to “continue adding names to kill or capture lists for years” (emphasis ours). And despite presiding over the implementation and expansion of these very programs, President Obama speaks with a straight face about moving away from a permanent war footing. How can that be? Obama has also allowed the NSA to launch surveillance programs such as XKeyscore and PRISM that, like the targeted killing program, suggest the government is engaged in a conflict that is almost infinite in scope and duration.

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And don’t take our word for it. Obama’s SOTU—yes, the same speech where he spoke of moving off the war footing—itself presages a conflict on which the sun will never set. “While we’ve put al-Qaida’s core leadership on a path to defeat,” Obama intoned, “the threat has evolved as al-Qaida affiliates and other extremists take root in different parts of the world. In Yemen, Somalia, Iraq, Mali, we have to keep working with partners to disrupt and disable these networks” (emphasis ours). Numerous aspects of that sentence should immediately jump out to careful readers. Notice that while the President suggests the war is over with one hand (al-Qaida is on the “path to defeat”), with the other hand he informs us the war is not really over at all (it has grown to include “Yemen, Somalia, Iraq, Mali”). And look at the countries Obama mentioned. Mali? Do most Americans even know where that is? (Answer: West Africa). More critically, what are U.S. drones doing in Yemen and Somalia? We—and the public in general—have essentially no idea. Obama has refused to release most of the legal memos that outline his alleged authority to engage in targeted killing, and so despite having previously assured Americans “an unprecedented level of openness in Government,” we only get a glimpse into the drone war during the occasional news story such as when a U.S. drone strike converts a Yemeni wedding into a family funeral. Iraq is also mentioned as a site of extremist activity to “disrupt,” which is somewhat curious given that here is a video Obama declaring the war in Iraq is over—back in 2011. How can the war in Iraq have ended in any meaningful sense if, three years later, we are actively “working with our partners” to “disrupt and disable” extremist activity there and around the world? It seems that the way to get America off the war footing (at least in DoubleSpeak) is to kill more people. This is not hyperbole: Obama has launched eight times as many drone strikes as his predecessor and there’s no end in sight. The light at the end of the tunnel is (yet another) drone strike.

Media outlets must write candidly about a war that appears to have no end, otherwise the debates surrounding the tactics, strategy, and legality of the drone war will reverberate into an echo chamber where they will be heard only by the speakers themselves. In the interim, those running the drone war and targeted killing programs will likely continue their actions more-or-less unchanged. A good example of this phenomenon is exemplified in the AP article cited above regarding the latest U.S. citizen abroad the Obama Administration has set its sights on. The AP begins its piece noting the targeting of another American citizen “underscores the complexities of President Barack Obama’s new stricter targeting guidelines for the use of deadly drones.” Read that sentence carefully. Why didn’t the AP say, for example, that the Obama Administration’s targeting of yet another U.S. citizen underscores a drone war gone out of control? Or that it underscores the increased acceptance of the (in our view, absurd) proposition that it’s OK to kill U.S. citizens abroad without due process? If, as The New York Times has reported, the targeted killing of a U.S. citizen abroad is “extremely rare, if not unprecedented,” then wouldn’t yet another targeting of a U.S. citizen just a few years later underscore something slightly more fundamental than “the complexities” of Obama’s “stricter targeting guidelines”? Various news outlets have already reported that Obama’s new guidelines are nothing but Orwellian “pure wind,” devoid of any real substance and designed to make murder respectable. To make matters worse, the AP article itself quotes Amnesty International’s Naureen Shah for the proposition that “[s]o little has changed since last year[.]”

The evidence suggests Shah stands correct, not just for last year but for many more before that. If and until journalists understand that the U.S. government is firmly implanted on a permanent war footing—in other words, understand that Obama’s SOTU was primarily delivered in DoubleSpeak—we will continue to witness the expansion of a drone war that has no end. And if that turns out to be the case, we will find ourselves in the company of the protagonist of 1984, for as we know, “Winston could not definitely remember a time when his country had not been at war…”

Going for Gold: Journalism & the Sochi Olympics

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Part of the reason the Fourth Estate Watch (FEW) exists is to keep establishment media organizations in check, as they have historically failed to do that themselves. And when it comes to the Sochi Olympics, many journalists appear intent on outperforming each other as they go for gold in what seems to be the main event: critiquing the Russian government at the expense of virtually all else. While we are certainly not here to defend the Russian government or its laws, we are here to keep an eye on the media. The Sochi Olympics coverage, however, suggests the flame of consistent and equitable reporting has been nearly extinguished.

Much of the Olympic coverage so far, for example, has been dominated by journalists who appear borderline-obsessed with addressing the question of LGBTQ rights in Russia, condemning Russia at virtually every turn. While the question of LGBTQ rights is undoubtedly an important one, we question why media organizations suddenly appear intent on focusing on human rights issues now that Russia is hosting the Olympics. We do not recall similar treatment of the U.S. government the last time it hosted an international sporting event. Can you recall the mainstream media ever criticizing the U.S. government for human rights abuses during the Olympics? We can’t. Although the Obama Administration has launched a record number of drone strikes (eight times more than his predecessor) and the U.S. previously engaged in the practice of “extraordinary rendition”—kidnapping someone from country X and then sending them to country Y for “enhanced interrogation” (read: torture)—we cannot recall a single instance of the media mentioning those human rights issues during international sporting events. Yet the impression one gets from media reports is that LGBTQ issues in Russia are (a) relevant to the Olympics and/or (b) the most important human rights issue of our time.

Again, there’s no question that LGBTQ rights are important and that the FEW believes all individuals should be treated equally and equitably. But instead of focusing on the status of various Russian laws that have little to do with the Olympics, we’d rather ask why media organizations have penned so many articles on human right violations committed by other governments but comparatively few articles for those those committed by their own. If media organizations are to be cantankerous and obstinate, to paraphrase Judge Gurfein’s observation in the Pentagon Papers case, why do they maintain relative silence when it comes to the alleged human rights violations of the U.S. government? In the lead-up to these Olympics, not a day went by without a new story about LGBTQ rights in Russia. The establishment media organizations have never done such consistent reporting on alleged human rights violations when the United States hosts an international sporting event. The stark contrast in reporting strikes us as both hypocritical and unhelpful.

The hypocrisy is evident in articles like this from The Verge, entitled “Hackers aren’t the Problem at Sochi, Surveillance is.” Right—surveillance is a problem in Sochi. Russell Brandom says in his article that what’s happening in Sochi is “one of the most intensive short-term campaigns of digital surveillance the 21st century has ever seen.” Again, we’re not here to defend Russian practices by any means, but The Verge appears to be writing about an alternate reality. The National Security Agency (NSA) has instituted surveillance programs for those who play Angry Birds and World of Warcraft, not to mention surveillance programs like XKeyscore and PRISM that, by design, are aimed to collect “virtually everything a user does on the internet.” In short, the notion that Russia—not the NSA—is engaged in “one of the most intensive” surveillance operations is nonsensical in the wake of Edward Snowden’s disclosures.

Media coverage of the Sochi Olympics has also been unhelpful. First, by focusing on the LGBTQ issue in Russia during these Olympics but downplaying U.S. human rights issues (Guantanamo Bay, drone strikes, extraordinary rendition, mass surveillance, etc.) during other sporting events, media organizations implicitly suggest that the latter issues are unimportant. At the very least, their reporting conveys to the reader that LGBTQ issues in Russia are far more important than any of the other issues mentioned above. Second, the media’s reporting is unhelpful to those who are actually participating in the Olympics: the athletes themselves. Although they have trained for years and are regarded as the best in their field, the media has so far preferred to focus on unrelated political issues in Russia. The athletes—and the victims of U.S. human rights abuses worldwide—deserve better.