Ever since the radical cleric Anwar al-Awlaki was blown to pieces by a Hellfire missile fired from a drone while riding in a convoy in Yemen in September 2011, pundits, academics, lawyers and politicians have been debating the legality of targeted killings of American citizens. The issue has come to the fore in recent years as the Obama administration has steadily and methodically increased the number and lethality of drone strikes against targets in Yemen and Pakistan, with very vague requirements as to how people are selected for targeting.
A recent instance of good old-fashioned judiciary action on the part of a federal court in Brooklyn, New York, points the way to a possible ethical and legal solution to the very thorny problem of the targeted killings of Americans. The answer is simple: capture the suspect and bring them to trial. Mohanad Mahmoud al-Farekh, a Texas-born al-Qaida operative who was arrested in Pakistan last year after a long manhunt by both the U.S. and Pakistani intelligence services, stood in before a judge to answer for his crimes this month.
That wasn’t how it could have turned out, however. According to the New York Times account of the events leading up to the trial, the “Pentagon nominated Mr. Farekh to be placed on a so-called kill list for terrorism suspects; C.I.A. officials also pushed for the White House to authorize his killing.” From this, one can see that there seems to be a fascination on the part of presidential administrations with killing people rather than capturing them.
Not that I really can blame them from a pragmatic standpoint. There are a number of reasons why it is more practical to kill an American-born terrorist than it is to capture them for trial. In the first place, there is the very real problem of dealing with foreign intelligence services. For instance, they may have an entirely different political goal in mind, and therefore may not have a vested interest in capturing terrorists.
Admiral Mike Mullen touched on this a few years ago in his comments about the duplicity of Pakistan’s Directorate for Inter-Services Intelligence (ISI). On top of that, it is often easier in conflict to deal with a corpse than a live person, however cruel and macabre that might sound.
Even so, international law does not condone such actions if there is even the slightest possibility of an alternative. Under the tenets of international humanitarian law, there are three tenets of responding to an attack by armed groups; as I have explained in a previous column, the response must be proportional, necessary and must carry with distinction between civilians and combatants.
There is no evidence that the element of necessity was met in the case of al-Farekh when the CIA and Defense Department was deciding whether or not to kill him. That means that they should have taken all steps necessary to capture and detain him before even considering targeting him with a drone, which evidently they didn’t do.
More importantly than the international law component (this is where the American citizen part comes into play), the targeted killing of American citizens overseas without even attempting to capture them denies them their Fifth Amendment right not to “be deprived of life, liberty, or property, without due process of law”; in other words, the right of habeas corpus.
As Brett Max Kaufman points out, the way in which the government concludes the guilt of the suspected American terrorists (and often kills them based upon) is often vague, based upon very low evidentiary standards, further proving the loss of due process by an American citizen accused of committing, aiding or abetting terrorist attacks.
While the example set by al-Farekh’s trial might not be perfect, it definitely presents a way for the U.S. to uphold its values while still making “the long arm of American justice clear time and again,” as White House spokesperson Ned Price said. As Justice Sandra Day O’Connor pointed out in Hamdi v. Rumsfeld, “It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”
Reach the columnist at jbrunne2@asu.edu or follow him on Twitter @JARBrunner4.
Editor’s note: The opinions presented in this column are the author’s and do not imply any endorsement from The State Press or its editors.
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