Waterboarding foreigners is out, but killing of selected U.S. citizens is okay in the new and obscure counterterrorism calculus approved by U.S. President Barack Obama.
When al-Qaeda cleric and American citizen Anwar al-Awlaki was assassinated in Yemen with a missile fired from a CIA-operated unmanned plane, it was the first ever use of Mr. Obama's secret new "licence to kill."
Few Americans will lament the killing of Mr. al-Awlaki, who openly espoused jihad, mentored the U.S. army major who killed 13 fellow soldiers at Fort Hood, Tex., and played a key recruiting role in the Christmas Day 2009 attempt to bring down a U.S. bound jetliner with an underwear bomb.
But it's an unprecedented use of executive authority for a U.S. president to unilaterally give himself the right to kill an American citizen without, charge, trial, conviction or sentence, and it flouts both the Constitution and international law, according to rights groups and a handful of political conservatives.
While no one disputes that under certain limited circumstances agents of the state can use lethal force, Mr. Obama's decision to order the killing of Mr. al-Awlaki sets a far-reaching precedent. It's a slippery slope, warns Jameel Jaffer, deputy legal director at the American Civil Liberties Union. "The powers claimed by this President may be used by the next one and he might be someone less trustworthy."
After being named Nobel Peace Prize winner in 2009, Mr. Obama "outed" the Bush administration's "secret" Justice Department memos that justified as legal "enhanced interrogation" techniques, which included the simulated drowning technique called waterboarding and were widely decried as torture. "I believe strongly in transparency and accountability," Mr. Obama said then. "That is why we have released these memos."
But the President won't reveal the Justice Department memos – reportedly 50 pages long – that underpin the justification for the killing of Mr. al-Awlaki last month. American citizens who opt to fight for the nation's enemies have been killed in combat, and those deaths are considered lawful under both international and domestic law. But Mr. al-Awlaki was far from any "battlefield" as he drove down a road in Yemen. The killing raises the prospect "that the whole world is a battlefield," warns Mr. Jaffer, and that Mr. Obama has reserved the right to selectively target U.S. citizens for arbitrary execution without any judicial or public accountability.
In selective leaks, senior administration officials are quoted saying the killing wasn't some sort of executive-ordered justice or the arbitrary imposition of a sentence for de facto treason, both of which have been widely touted by pundits.
Rather it is argued that Mr. al-Awlaki was killed because as a senior al-Qaeda operations officer, he posed some sort of imminent threat and thus extraordinary measures were justified. That, of course, was exactly the core of the Bush-Cheney argument for waterboarding: that information extracted could save America from attack.
The White House rejects accusations that it opted to kill rather than attempt to capture Mr. al-Awlaki and al-Qaeda leader Osama bin Laden to avoid messy and unpredictable trials.
"Some have suggested … we prefer to kill suspected terrorists, rather than capture them. This is absurd," insisted John Brennan, the President's chief counterterrorism adviser. "We cannot – and we must not – succumb to the temptation to set aside our laws and our values when we face threats to our security, including and especially from groups as depraved as al-Qaeda," he said last month in a speech setting out the administration's most detailed explanation yet of its counterterrorism policy.
Mr. Brennan said it was lawful to kill "those individuals who are a threat to the United States, whose removal would cause a significant – even if only temporary – disruption of the plans and capabilities of Qaeda and its associated forces. Practically speaking, then, the question turns principally on how you define "imminence."