Who has the right to kill American citizens? And under what circumstances?
It’s the sort of ghoulish question one would hope has a fairly clear legal answer, but apparently not. It’s actually shaping up to be one of more contentious political debates of our time.
We got our first taste of the controversy last spring, when Orlando teen Trayvon Martin was shot and killed by a suspicious neighbor, George Zimmerman, following some degree of provocation that varies depending on whose apologists are telling the story. Zimmerman’s itchy trigger finger provoked a national outrage, and yet for a time it appeared there would no legal consequence for his zealotry. As a resident of Florida, he was covered by his state’s controversial “stand your ground” law, a generous re-imagining of “the right to self-defense” that swept the legislatures of gun-happy states in the early 2000s.
“Stand your ground” absolves a great deal of responsibility from shooters who believe their killings took place in an environment of imminent danger, with the key word being believe. Believing in a threat could now provide criminal immunity for any violence committed against strangers on one’s private property; as Slate‘s Emily Bazelon noted at the time, it was basically an extremely liberal expansion of the ancient English “castle doctrine” that held a man’s home was his castle, and thus a place where he had every right to, well, shoot first and ask questions later.
Apply “stand your ground” to the War on Terror and you basically get President Obama’s approach to foreign policy.
On Monday, a leaked memo from the Department of Justice revealed that executive branch lawyers have been working very hard to come up with constitutionally-sound justification for killing terrorists with American citizenship, such as noted 2011 drone victim Anwar-al-Awlaki. Their conclusion? It’s okay if we believe they’re a threat.
Now in theory, (and stay with me here) any American who commits terrorism is committing a crime, and under the Sixth Amendment, Americans accused of crimes have a right to be “informed of the nature and cause of the accusation,” and given the “assistance of Counsel” to defend them in “a speedy and public trial.” The Constitution says nothing about a judicial process that begins with a conclusion of guilt and ends with a missile to the face.
We do know, however, that the short-term need to protect the public from violent bad guys does make a full arrest and trial unfeasible in some circumstances. In 1985 the Supreme Court ruled that it’s constitutional for cops to shoot people posing an imminent “threat of death or serious physical injury to the officer or others,” for example, and I don’t think anyone would contest that this would have been a reasonable way to deliver justice to, say, Jared Lee Loughner during his massacre.
But while curtailing imminent danger is an easy standard to evoke while the SWAT team is gunning down a rampaging lunatic, in the world of terrorism things get a bit trickier. When exactly is a terrorist an “imminent threat?” When he’s about to press the detonator? When he’s building the bomb? When he’s thinking about building the bomb? When he’s filling out the Al-Qaeda membership form?
The answer, say the brightest minds of the Obama Justice Department, is “yes.” As Jeff Rosen notes in a fine piece in The New Republic, the leaked DOJ memo doesn’t even attempt to offer a coherent or persuasive definition of “imminent threat;” it’s merely noted that since Al-Qaeda is “continually” in the process of doing or plotting crimes, it stands to reason its members are never not existing in some state of death-deserving guilt. Or something. Basically it’s up to any person the memo describes as an “informed, high-level official of the US government” to hash it all out. We’ll fire on threats when we think we see one, they say. Florida would be proud.
Civil libertarians and anti-war lefties have reacted furiously to these non-revelations of a non-system of non-justice. “It summarises in cold legal terms a stunning overreach of executive authority: the claimed power to declare Americans a threat and kill them,” said the head of the ACLU; an “extreme and radical threat” to American freedom agrees Glen Greenwald.
Much has likewise been made about the chilling “apathy” or even support the idiot American public has given to this unapologetic government program to, in the words of The Onion “kill them,” but such hysterics seem just as crude and simplistic as the very act they’re trying to protest.
Obviously, the Obama Administration is not some cackling genocidal dictatorship hungering to slaughter American citizens on unprovable terrorist charges whenever and wherever they please, even on — as many critics presume but the memos do not actually discuss — American soil. And obviously the most plausible real-world alternative to drone-killing terrorist Americans is not their clean arrest and tidy trial, but rather nothing. The whole point of drones in the first place is to kill people hiding overseas who can’t easily be captured, and while the thought of summary wartime executions of rebel Americans may make some squeamish, it would require a very strange mix of conspiratorial cynicism and naive optimism to believe the Obama doctrine is not at least trying to achieve some national security good in its own confused way. Who’s willing to the case for not trying at all?
The big existential question of the War on Terror (2001- ) is whether the legal and constitutional contortions required to fight a perpetual war against a vaguely-defined, non-governmental enemy represent a sacrifice Americans are willing to make. Not because, as the sensationalists argue, these offenses against the sanctity of the Bill of Rights and due process actually pose any imminent risk (there’s that phrase again) to the safety and security of their own complacent lives on the couch, but rather because of the more abstract, but still embarrassing, stain of hypocrisy and tyranny it puts on their country’s founding ideals.
A White House willing to strategically strip the rights of the infinitesimally small segment of the America population willing to move overseas to commit treason may not cause much consequence for US democracy in any obvious or noticeable way, but it will set precedent and it will be known. It will be a casualty of the war; the questions is whether it’s within the acceptable range of loss.