Drone Strikes: Equal Justice Under Law?

by Mark Gordon

This piece originally appeared at Aleteia.

On November 3, 2002, the American way of war entered a new era when the first-ever attack by armed drone aircraft was conducted in the Marib district of Yemen. The strike, which was directed from the Joint Special Operations Command in Tampa, Florida, killed Abu Ali al-Harithi, an Al-Qaeda operative who had led the attack on the USS Cole in 2000, and five others. Since that day, the United States has launched thousands of drone attacks in Pakistan, Iraq, Afghanistan, Somalia, and Libya.

On September 30, 2011, another drone strike in Yemen killed Ayman Al-Awlaki, an American citizen, Muslim cleric and reported Al-Qaeda leader.  Another American citizen, Samir Khan, was killed along with Awlaki. Two weeks later, Awlaki’s 16 year-old son, Abdulrahman, also an American citizen, was assassinated in a separate strike.

This week, NBC News obtained a confidential Justice Department memo that lays out the Obama Administration’s legal justification for the assassination of American citizens overseas. The memo, titled “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,” relies on a doctrine of self-defense that stretches the boundaries of imminence, a key element in that doctrine. Specifically, the memo states that, “The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” The memo goes on to assert that it is within the government’s right to target and kill an American citizen even retrospectively; that is, if the citizen has been involved in “activities” that might have constituted a threat “recently.”  As for deciding when, where, and against whom to authorize a lethal strike, the memo identifies only a hypothetical “informed, high-level” government official. Finally, the memo rejects any requirement of judicial approval or review, claiming that to seek such approval or to provide such mechanisms would violate the constitutional separation of powers and unduly burden the President’s exercise of his prerogatives as Commander-in-Chief.

In summary, the Obama Administration believes it has the right to kill American citizens abroad if those citizens may at some indistinct point in the future become threats to the United States, or if they have recently been involved in threatening  “activities.” Once that test has been met in the mind of a “high-level” government official, he may proceed without judicial review, in accordance with the constitutional war powers inherent to the Executive Branch.

In some ways, none of this is new. In a speech last March, Attorney General Eric Holder made substantially the same argument. What is new is the degree of “wiggle room” available to those in a position to decide whether to conduct the extrajudicial killing of an American citizen abroad or not. The expansive definition of “imminent threat” and the addition of what appear to be retributive criteria create new questions about the ethics, legality, and limits of this policy. Just yesterday, for instance, the Director of the Federal Bureau of Investigation, Robert Moeller, refused to say whether these criteria could be applied to a citizen within the United States. When that question is open for discussion, we have clearly entered new territory.

These developments raise critical questions for all American citizens, of course, but particularly for Catholics, who have received a body of teaching that addresses many of the issues involved, and who in any case are called first to be followers of Jesus Christ. The first question concerns constitutionality, or the adherence to the rule of law. The Catechism speaks to this issue when addressing the powers of secular authorities: “It is preferable that each power be balanced by other powers and by other spheres of responsibility which keep it within proper bounds. This is the principle of the ‘rule of law,’ in which the law is sovereign and not the arbitrary will of men” (1904). This admonition mirrors many of the complaints that are being lodged against the Obama Administration’s policy in the secular debate: that the criteria for carrying out this policy are too broad and indistinct, that the exercise of this power is unbalanced, that it circumscribes the proper role of the judiciary.  Regardless of whatever else these targeted individuals may be, they are citizens of the United States, and as such are entitled to the protections and privileges accorded to them by law. And while, in the words of Justice Robert H. Jackson, “the Constitution is not a suicide pact,” there nevertheless ought to be a much higher bar placed on the deliberate violation of an American citizen’s constitutional rights. The Administration’s policy includes no due process protections for targeted citizens apart from vague assurances that “informed” but unnamed officials will responsibly substitute their judgment for that of prosecutors, courts, juries, and the Constitution itself.

There are also questions arising from Catholic just war theory, which holds that “governments cannot be denied the right of lawful self-defense, once all peace efforts have failed.” Apart from the question of whether “all peace efforts” have in fact failed in these cases, for military action to be just, it must meet the following threshold conditions: “damage inflicted by the aggressor… must be lasting, grave, and certain; all other means of putting an end to it must have been shown to be impractical or ineffective; there must be serious prospects of success;” and that “the use of arms must not produce evils and disorders graver than the evil to be eliminated[.]” Given the gauzy conditions for taking action laid out in the DOJ memo, especially given its retributive character, there are real questions about whether this policy meets the just war test. What about the “prudential judgment” of policymakers? It is true that the Church gives considerable leeway to authorities in the application of just war principles, but not when those principles themselves are undermined or contradicted.

Of course, a wider question involves the violation of national sovereignty in places like Yemen and Pakistan, and the implications of those violations for international law. The Constitution of the United States has a clear procedure for going to war: Congress declares, and the President conducts. The growth of what some have called the “imperial presidency” since World War II has obviously frustrated the intent of the Framers in this regard. But until recently, presidents at least sought resolutions or other formal congressional acts to endorse military action abroad. Today, under cover of the undeclared War on Terror, we are witnessing the routine and repeated application of American force in many different countries without any authorization beyond the say-so of the Commander-in-Chief. This trend is directly at odds not only with the American constitutional tradition, but also with the spirit of the Church’s call for a just and peaceful international order, which recognizes a nation’s right to self-defense, but within the limits prescribed by international convention, and only in pursuit of the universal common good, integral development, human rights, and a just peace.

As a former US Army officer, the father of a two-time Iraq War combat veteran, and a faithful Catholic citizen, I find the Obama Administration’s policy on the extrajudicial assassination of American citizens abroad to be deeply troubling. Certainly, we want to do what we can to prevent terrorist acts, both here and abroad, but that end cannot be achieved by surrendering our values, by undermining the rule of law, or by forgetting what kind of nation we want to preserve for our children. If we do these things, we may wake up one day to realize that what we once sought to protect we have in fact destroyed.