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Secret White House memos authorizing the killing of a American-born radical cleric last month in Yemen are fueling debate about the legal and moral implications of extrajudicial assassinations. At the same time, the Obama Administration is weighing how to respond to an alleged Iranian plot to kill the Saudi Ambassador to the U.S. on American soil. We explore a variety of debates swirling around state-sponsored killings.
- David Cole Professor of Constitutional Law and Criminal Justice at Georgetown Law.
MR. KOJO NNAMDIWelcome back. In late September, an American drone strike killed a radical U.S.-born cleric Anwar al-Awlaki in Yemen. Details were murky. A secret White House memo, yet to be made public, outlined the legal justification for killing a U.S. citizen. And Yemen may have given the U.S. permission for the strike. The implications here and abroad are wide ranging. Some fear the kind of precedent the U.S. is setting for other countries to target their own citizens abroad and it sparked a number of debates about the constitutionality of killing a U.S. citizen without due process.
MR. KOJO NNAMDIMeanwhile, U.S. agents last week uncovered an alleged plot by the Iranian government, or some faction of it, to assassinate the Saudi ambassador right here in Washington. A vastly different case, but one that raises more questions about targeted killings across borders. Joining us to discuss this is David Cole. He's a professor of constitutional law and criminal justice at Georgetown University Law Center. David, thank you for joining us.
MR. DAVID COLEThanks for having me, Kojo.
NNAMDIGood to see you. 800-433-8850 is the way you can join the conversation. When do you think the U.S. is justified in killing an American citizen abroad? 800-433-8850, or you can make a comment at our website, kojoshow.org, send us a tweet @kojoshow or e-mail to firstname.lastname@example.org. David, six months ago, you joined us to talk about the killing Osama bin Laden. Here we are now discussing a U.S. citizen killed in a U.S. drone strike in Yemen and we have stepped up drone strikes in Afghanistan and Pakistan. Where are we now and what are the implications of the way the U.S. is carrying out the so-called War on Terror?
COLEWell, we are extending the authority to places that are far beyond any conceivable notion of a hot battlefield. And it's one thing to attack Osama bin Laden, the leader of al-Qaida in Pakistan which is virtually in the theater of war. It's another thing to attack a man, Mr. Awlaki who was not alleged to be a part of al-Qaida or the Taliban, the two organizations Congress authorized us to fight against, who is in Yemen which is far from the battlefield, who has never been charged with any terrorist act in the United States and who was given no trial, and is a U.S. citizen to boot.
COLESo, you know, we now have a situation in which the president of the United States has ordered the killing of a U.S. citizen in secret based on a secret memo. And we, the public, are left in the dark as to what his authority is, what his arguments are for what the limits of it are. And I think that's a very, very scary place to be.
NNAMDIFor those of you unfamiliar or forgetting the details, in late September, the U.S. targeted the radical U.S.-born cleric Anwar al-Awlaki and killed him in a drone strike in Yemen. Is the U.S. giving justification now to other countries who may wish to target their own or other citizens on foreign soil?
COLEWell, that's a real concern, right? We, at the moment, we have a near monopoly on drones. The only other countries that have used drones for strikes are Britain and Israel. But there was just a report in the New York Times that the next arms race is going to be in drones. So, what we do today establishes a precedent that other countries may well use to take action against their own enemies, you know, wherever those may be.
COLEAnd, you know, how would we like it if, you know, a drone -- another -- Iran used drones to attack someone who they were concerned about at, you know, 2 Amys restaurant up here in Washington, D.C.? I think we would be outraged. And the government's position here, as far as we know, only through leaks to the New York Times...
NNAMDII was about to get to that. One of the more troubling aspects of the Awlaki case for many is the White House's secret memo that's not so secret anymore now that it's been on the front page of the New York Times. Exactly what do we know about it?
COLEWell, we still don't know that much about it, and I think that's one of the real problems here. It's a memo that was written in secret in June 2010. It's 50 pages. It was written specifically with respect to Mr. Awlaki. It concludes that because he is a leader -- or was a leader of al-Qaida in the Arabian Peninsula, a Yemen-based group, because that group had planned attacks against the United States, never succeeded, but planned.
COLEBecause it was feasible to capture or arrest him, it was permissible for the United States to use a remote-controlled drone to simply kill him. But all we know about the reasoning in that memo is by virtue of what a reporter for the New York Times says somebody told him about the memo. The memo itself remains secret, so the contours and limits of the president's power to kill a U.S. citizens and other by pushing a button without a trial remains a secret.
NNAMDILet us say that there may have been good reason to keep the memo secret before the killing, but what about now?
COLEWell, I -- exactly. And I, you know, the justification that's generally advanced for keeping it secret is one, of course, before the person is killed, you don't want to give notice to the person that he is on the list. Although, of course, that fact had been leaked -- the fact that Mr. Awlaki was on a list had been leaked long ago. The other argument is that sometimes you -- a country like Yemen will only allow us or permit us to use a drone strike in their country if we agree that the strike will be a covert operation, you know, with plausible deniability, and that may well have been the case, that we got an agreement from Yemen to do this on the condition that we not acknowledge that we were doing it.
COLEBut the question, I think, is, one, even if we made such an agreement, why can't we tell the American people what the general contours are of the law that governs this awesome power of the president to kill American citizens and others without trial. Why can't we tell in general terms? And secondly, can our agreement with Yemen trump America's right to know what the authority of their president is to kill them?
NNAMDIIt's not clear whether anyone was briefed about this in Congress or elsewhere, is it?
COLEIt is not clear, and that's another concern, right? This is a decision that at least, from all we know, is made entirely within the executive branch. We don't even know what the process is for making -- we don't know how many -- how carefully the facts are reviewed. And what we do know from experience is that other decisions made within the executive branch, with respect to quote/unquote "enemies" in the War on Terror have often been mistaken, right?
COLEMany -- 775 people were abducted or detained and brought to Guantanamo because the Bush administration said they were enemy combatants fighting for the other side. Over 600 of them have subsequently been released by Bush -- by Obama, some ordered by courts, because there was not sufficient evidence to show that they were, in fact, an enemy. So, you know, if you've detained someone wrongfully, you can release them once they get judicial review. If you kill someone wrongfully, there is no remedy.
NNAMDIWe're talking about targeted killings of U.S. citizens abroad, and inviting your calls at 800-433-8850. When do you think the U.S. is justified in killing an American citizen abroad? Do you have concerns about the increasing number of targeted killings the U.S. is carrying out using drones? 800-433-8850. Send us a tweet @kojoshow or e-mail to email@example.com. Even if a few members of Congress had been briefed, is that really review? Is that really oversight, never mind public debate?
COLENot really. And that's the process that the Bush administration used when it secretly authorized torture by the CIA and when it secretly authorized warrantless wire tapping of Americans by the NSA. It went over to Congress, took the six -- the Group of Six, sort of leaders of Congress, put them in a zone -- under a cone of silence, said, we will tell you what we're doing in some general terms, but on the condition that you may not tell anybody else, not your assistant, not your aide, not your colleagues, not your wife.
COLEAnd so they get the information, but they can't do anything with it, and that doesn't -- that's not an effective check at all. So even if it was shared with a few members of Congress, I don't see that as a meaningful check on the potential for executive abuse and executive mistake.
NNAMDIAm I wrong, or did you just invoke the television comedy series, "Get Smart"?
COLEI did. It's a...
NNAMDIThe cone of silence.
COLE...little known part of constitutional laws.
NNAMDIYou know that one reason the memo may be kept secret is the U.S. relationship with Yemen, and the role that the Yemen government might have had in this. But, if that were the case, it still raises some issues for you because that doesn't mean, in your view, that stuff should be kept from the American people. But if it is told to the American people, then obviously the government of Yemen becomes even more vulnerable, does it not?
COLEWell, but, you know, the question really is, you know, would they really be more vulnerable? Is it really plausibly deniable at this point? I mean, the -- Mr. Awlaki's killing was emblazoned across the world's front -- newspaper front pages, on the evening news everywhere throughout the world. I think President Obama has said that, you know, an important leader was killed. This was a victory. So for all intents and purposes, they have taken credit for this action.
COLEIt's now been reported that there was an extensive process, at least within the office of legal counsel, to come up with a justification. I see no harm to our relations with Yemen to release that memo, and I see great harm to the American public if, in a democracy, we're not able to know and debate the terms of the president's authority to kill us.
NNAMDI800-433-8850. We're talking with David Cole. He's a professor of constitution law and criminal justice at Georgetown University Law Center. The conversation is about targeted killings by the U.S. of Americans abroad, and the implications of that. Here is Dwayne in Warrington, Va. Dwayne, you're on the air. Go ahead, please.
DWAYNEYes. Hi. I was -- I don't know if I can say that I'm either for or against the Awlaki killing, but I was trying to sort of reason whether it would not be similar to deaths that occurred during the Civil War or Ruby Ridge or any other time when someone has picked up arms against the United States even though they're a U.S. citizen. A lot of times, they've been killed without any summary judgment or any, you know, any court.
NNAMDIIs this a comparable situation, David Cole?
COLEWell, that's a great question. Because I think it is important to acknowledge that there are situations in which it is unquestionably legal for the executive branch to -- through the military, to kill even American citizens without a trial. If Mr. Awlaki had been the battlefield in Afghanistan carrying a weapon, and a U.S. soldier came across him, that U.S. soldier would not have to indict him, bring him to trial, you know, appeal to the Supreme Court. He could simply shoot and kill him, so that's clear.
COLEOn the other hand, it's also clear that in general, people suspected of engaging in terrorist acts in the United States, that fact alone does not justify the president in killing them. What we generally do is we investigate, we try to develop evidence, we then bring an indictment, we try them, and if we can prove beyond a reasonable doubt that they're guilty, we lock them up. In this -- so the question really is, is this appropriately understood as within an ongoing armed conflict model, or is it appropriately understood within the criminal procedure model.
COLEAnd the fact that he was not on the battlefield, he is a not a member of either of the two organizations that we're fighting against in Afghanistan, al-Qaida or the Taliban, but instead, a member of a distinct group called al-Qaida in the Arabian Peninsula, which was just created in 2009, then there's real questions whether the appropriate place to put him is under the criminal box, or under the military box.
COLEAnd I think in this instance we have a right to know what the president thinks his authority is with respect to quote/unquote "suspected terrorists" and quote/unquote "enemy combatants." And the problem is we don't know.
NNAMDIHere is John in Washington D.C. John, you're on the air. Go ahead, please.
JOHNHi, how are you? First of all, thank you for having me on. I think where we're -- where my distinguished colleague is making a -- his distinction between an American citizen and an enemy combatant, while I agree with you on that, where I disagree with you -- well, first of all, let me just say that we all agree that all off the information is not out there right now. We agree on that, and there are some things that I'm sure that if they came to light would probably shed -- would probably change some opinions on this.
JOHNBut in a nutshell, you're right. If he was on the battlefield, if he had a weapon, a soldier wouldn't have to make that distinction. But a soldier is an extension of the president and Congress. And the point is, just because he wasn't carrying a weapon, doesn't mean that he was not a weapon, and where we're going with this is, if Awlaki was a 100 percent completely innocent American citizen and had no dealings with any foreign terrorist organizations, and didn't have any dealings with any plots against the United States, he probably would not have been placed on the list.
JOHNSo there's some truth to that. Now, I really can't get into it, but there's some truth to that, and you, you know, it's one of those things where you just kind of got to trust, you know.
NNAMDII was about to raise that question, and thank you for bringing it up, John. Should we trust our government to carry out what it thinks is necessary to protect the American people?
COLEWell, I think we should trust but verify, and the problem is, if it's all done in secret, there's no basis upon which to verify. So the caller makes various assertions about Mr. Awlaki, they might be true, they might not be true. I think we have the right to know, and even more broadly, we have the right to know the general contours of this policy. But I wanted to add another consideration here that I think favors some more public disclosure about what this authority is.
COLEAll the reports indicate that these drone strikes, while they're quite effective in killing people that we target, they're also tremendously counterproductive in creating great resentment and resistance within the countries where we are using them. In Pakistan, drone strikes are incredibly unpopular and have created an incredible amount of anti-American sentiment.
COLESo much so that Dennis Blair, who was head of national intelligence under both Bush and Obama has said we should stop unilateral drone strikes because they're doing more harm than good. If we were public about what the limits of our authority are, what the justifications are, what the processes are, then those strikes might well be perceived as legitimate. But right now they're perceived as illegitimate because they're done entirely in secret, not even acknowledged, and when you -- what you do in secret and don't acknowledge is not bound by, in any public way, the rule of law.
NNAMDIJohn, thank you for your call. Here is Anne in Arlington, Va. Anne, your turn.
ANNEHi, Kojo. Thanks for taking my call. This is Anne Cook of Red Zone Blogitics. My question has to do with what the definition of a traitor is. Because it seems to me that depending on who is in power in Washington, some concern might be by Americans that their activities -- let's say if somebody is an American and they are fighting what they consider to be a just war or what have you against what they feel to be our oppressive forces in our U.S. government, you know, since that can be subject to interpretation, what exactly is the definition of a traitor that would allow someone to be executed or assassinated without the privilege of a trial anywhere, whether it's here or abroad. Because I see how if we are -- I'm sorry.
NNAMDINo. I was going to -- because we're running out of time, and say if you could include that...
NNAMDI...to expand how you define not just a traitor but an enemy combatant.
COLERight. Well, if you're a traitor, if you have literally committed treason, you can be prosecuted in the United States, but you can't be executed without trial simply because you're accused or suspected of treason, or accused or suspected of being a traitor. The -- as I understand it, the government's position is that they were authorized to kill Mr. Awlaki not because he's a traitor or because he's engaged in treason, but because he was a leader of a group that was -- had ties to al-Qaida, that had engaged in some plans to attack us, and it was not feasible to capture him.
COLEIf all of that -- and he posed some sort of imminent threat to the United States. If all of that were true, and if you define imminence narrowly, then it may well have been a lawful killing. But again, we just don't know because they have refused to make public the basis for their actions.
NNAMDIBut then there's this -- every U.S. president since has upheld the executive order from 1976 prohibiting assassinations, but that doesn't apply to targeted killings taking place in Afghanistan. Why not?
COLEWell, that's -- yeah. The distinction between an assassination and a targeted killing can be a difficult one. If it's a -- the assassination ban was designed to stop us outside of war time from ordering the killing of political leaders who we didn't like, something that had been done in our past, and was deemed highly inappropriate. That said, what the -- that doesn't bar the government in an ongoing armed conflict from targeting those who are fighting for the other side and the leaders of the groups that are fighting for the other side.
COLESo I don't think the assassination ban for example applied to the killing of Osama bin Laden. It didn't apply to the killing of many people in Afghanistan who are fighting for the other side, but the question with someone like Mr. Awlaki who is not on the battlefield, not part of the group we're fighting, is should the assassination ban apply there, and should we be required to apply the criminal process unless there's truly an imminent threat of a strike to us and...
NNAMDISpeaking of assassinations, the plot to kill the Saudi ambassador here in Washington last week supposedly by Iranian Revolutionary Guard members caused a lot of outrage here. The case of the U.S. targeting al-Awlaki is different than an assassination of a prominent diplomat, but this is a killing across a border. What kinds of issues does that plot raise for you?
COLEWell, it raises very serious issues, and another example of that was Russia a couple years ago killed Alexander Litvinenko who was a former KGB official. They poisoned him in London. And Russia, one of the things Russia has adopted in the wake of 9-11, and citing sort of our expansion of legal authorities to deal with terrorism, is the authority to target suspected terrorists outside of Russia, and they define suspected terrorists as including people who engage in propaganda that might encourage people to engage in terrorism.
COLESo again, you have this copycat problem, that if we do this, we may trust Barack Obama, but do we trust every leader of every country that is ultimately gonna have drones, and what kind of world do we want to live in, one in which people are free to push buttons and kill people outside of their country pursuant to secret policies and secret laws? I don't think so.
NNAMDIDavid Cole is a professor of constitutional law and criminal justice at Georgetown University Law Center. Thank you so much for joining us.
COLEThanks for having me.
NNAMDIAnd thank you all for listening. I'm Kojo Nnamdi.
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