Jacob Sternberger, a political science and security studies major at Dickinson College, has the distinction of sending in the first entry in Lawfare‘s Write the New York Times Al-Aulaqi Editorial Competition–complete with annotations as to the Times editorial form. Readers should vote for entries they like by “recommending” them using the Facebook button below. Here is Mr. Sternberger’s entry:
The Targeted Killing of the Constitution
Osama bin Laden had been dead only four months when the Obama administration recklessly decided to expand, rather than contract, the use of covert action as a policy solution.1 With the killing of the Yemeni-American al-Qaida cleric Anwar al-Awlaki, the Obama administration has publicly targeted a U.S. citizen for assassination. This is a dangerous and never-before-seen precedent.2
Al-Awlaki was best known for his role as a captivating propagandist. If a future administration wanted to attack a rogue pamphleteer who disagreed with Western capitalist values, this precedent says that they could do so without having to consult with Congress.3 A midnight filing by the Obama administration in September 2010 requested, based on the state secrets
doctrine4, that a federal judge throw out a lawsuit filed by the father of Anwar al-Awlaki to stop the government from killing his son, who was believed to be planning attacks5 for the branch of Al Qaeda in Yemen. Regrettably, the court deferred to the executive branch.
When dealing with a United States citizen, the United States government has an obligation to take additional steps precluding assassination. The kill or capture model should be abandoned outright, and only allow, at the very most, capture with subsequent extralegal6 detention so that there will at least be a tribunal beforehand.7
A tribunal, which judges have upheld, would at the very least guarantee a proper investigation and bar summary execution. All efforts should be made to return to a policy process consistent with the Constitution8 despite the fact that the world will never grant tribunals credibility and we should be
ashamed of their existence.
The Obama administration must be truly honest about what it can do and also where it has failed. They should admit their error, compensate al-Awlaki’s family, and steadfastly endeavor not to commit extrajudicial assassinations of U.S. citizens in the future.9
By silencing the voice of al-Awlaki, the Obama administration has blinded itself to any sense of justice. Rather than killing al-Awlaki with our Hellfire missiles, we should have challenged him with our American narrative. Congressional Republicans have won the battle, and the rule of law is losing the war.10
1. The decision to target al-Awlaki considerably predates bin Laden’s death.
2. No, it isn’t. See targeting of U.S. citizens who were fighting for the Third Reich in WWII.
3. This sentence is farcical, and no rational person would think this.
4. The government asked the court not to make a ruling based on the state secrets doctrine.
5. Contradicting earlier assertion that he was mainly a propagandist.
6. The Times loves the phrase “extralegal,” especially when the descriptor is factually wrong.
7. NYT has argued previously against this very same proposition here. Such contradictions are classic NYT.
8. This asserts by inference that the Obama administration is acting unconstitutionally, which it is plainly not.
9. This assumes the Obama administration knows it has made errors, and has knowingly decided to try and keep
this information from the public.
10. Obligatory non-sequitur blaming Congressional Republicans.
One matter Mr. Sternberger leaves out: The Times has actually addressed the hypothetical killing of Al-Aulaqi before–and it has been surprisingly moderate and reasonable on the subject. Back during the litigation before Judge Bates, the Times suggested (here and here) standards with which the Al-Aulaqi strike has largely complied–as well as the creation of a FISA-like structure to review the addition of citizens to targeting lists:
The government could establish a court like the Foreign Intelligence Surveillance Court, which authorizes wiretaps on foreign agents inside the United States. Before it adds people to its target list and begins tracking them, the government could take its evidence to this court behind closed doors — along with proof of its compliance with international law — and get the equivalent of a judicial warrant in a timely and efficient way.
I have wondered if one of the reasons for the Times‘s current silence is an unwillingness to either live with the consequences of the paper’s past moderation or to flamboyantly denounce an action that is broadly speaking consistent with a relatively recent past Times editorial editorial statement.