The debate over the use of deadly force against an American who is on foreign soil and has ties to al-Qaida sounds like a hypothetical straight out of my first-year Constitution law class at Penn. I can picture the back and forth on whether such killings violated the Fourth Amendment’s protection against unreasonable seizure or the Fifth Amendment’s due-process clause.
But this is no academic exercise, as the recent release of a 16-page Justice Department “white paper” makes clear: “Targeting a member of an enemy force who poses an imminent threat of violent attack to the United States is not unlawful. It is a lawful act of national self-defense.”
That would seem to describe the decision to kill Anwar al-Awlaki, a U.S. citizen born in New Mexico in 1971, before he could strike again. Awlaki has been linked to Maj. Nidal Malik Hasan, the Army psychiatrist who killed 13 people at Fort Hood, Texas, in 2009; Umar Farouk Abdulmutallab, the so-called underwear bomber who attempted to blow up an airplane bound for Detroit on Christmas 2009; and Faisal Shahzad, who tried to set off a car bomb in Times Square in the spring of 2010. Awlaki also had an association with two of the 9/11 hijackers.
Back in law school, someone would have argued that President Obama’s decision to kill Awlaki met the requirements of anticipatory self-defense, which requires that the “necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”
Terror target list
The decision to kill Awlaki fits the depiction of the commander-in-chief put forth by Jo Becker and Scott Shane last May in an almost-6,000-word New York Times story on Obama’s handling of the terror target list: “Mr. Obama has placed himself at the helm of a top-secret ‘nominations’ process to designate terrorists for kill or capture, of which the capture part has become largely theoretical.” Obama, they wrote, “approves lethal action without hand-wringing.”
That Obama doesn’t take this responsibility lightly is perhaps best evidenced by the approach to getting Osama bin Laden, a point I had not considered until a friend, Shanin Specter, raised it at a recent book club. Our small group read and discussed Peter Bergen’s fine account, “Manhunt: The Ten-Year Search for Bin Laden - From 9/11 to Abbottabad.” Specter suggested that there was more to the president’s decision to send in Navy SEALs (rather than bombing Abbottabad) than ensuring a positive ID on bin Laden.
Remembering the Times coverage, he argued that the president maintains a certain matrix for those cases in which he will personally authorize the killing of an al-Qaida member. Specter further theorized that part of that matrix requires positive identification of the target. When the time came for a decision to move against Abbottabad, that positive ID was missing, so bombing was ruled out. Instead, 40 or so SEALs were dispatched to learn whether it was actually bin Laden, and if so, to kill him.
Put differently, instead of risking the killing of an innocent, the United States sent 40 of its finest “canaries” into a “coal mine” with authorization to kill the 9/11 mastermind only after they established it was him.
That deference toward potentially innocent human life, even in a time of war, is in the finest traditions of the United States. And it helps define Obama’s policy toward foreign entanglements.
The approach to finding, identifying, and killing bin Laden was nuanced and principled, as is the drone program, which requires positive identification and an order to act by the commander-in-chief, at least with respect to those targeted. (It’s the opposite of an approach that would arm rebels, which would be uncontrolled and pose the risk of turning weapons against us or our allies.) That same level of caution is evident in our decision not to risk our soldiers in Syria, Libya, and Mali, and to leave Iraq and Afghanistan sooner than later.
The totality of each of these decisions gives definition to an emerging Obama doctrine: a strong presumption against the use of force by the United States unless the territorial integrity or political independence of the United States is in imminent risk. Obama is prepared to use force only where we control the force without delegation, and where the force used is proportionate to a verified threat.
In other words, he’s willing to fight as long as it takes, where the fight makes sense, and only as long as the fighting is merited.
Michael Smerconish writes for The Philadelphia Inquirer. Distributed by McClatchy-Tribune Information Services.
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