How Does the Death Penalty Differ From Drone Strikes?

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As a lawsuit over the targeted killings of American citizens makes its way through the court system, three experts offer three different opinions.

[optional image description]Defense Secretary Leon Panetta is the defendant in the pending case. (Reuters)

The most important lawsuit filed so far this year -- the most important lawsuit filed in the war on terror since President Barack Obama took office -- was unveiled in Washington on Wednesday, just in time for one of the hottest days of the year. In Al-Aulaqi v. Panetta, civil libertarians and two grieving families seek an accounting, literally and figuratively, for the sudden death that came late last September to two overseas terror suspects, both U.S. citizens, who were blown to bits by a missile strike in a remote region of Yemen. Here is the link to the complaint.

And here are a few of its material allegations. On September 30, 2011, Anwar Al-Aulaqi and Samir Kahn were killed by a U.S. missile, which struck them in the Yemeni province of al-Jawf. The men were killed after they were placed on a secret "kill list" by U.S. officials. The Obama Administration, which has made the "targeted killing" program its signature contribution to the war on terror, justified the strike by contending that the men were active terrorists. For example, the feds alleged that Al-Aulaqi had "played a key role in setting the strategic direction" for Al-Qaeda in the Arabian Peninsula.

Two weeks later, for good measure, the U.S. government authorized another missile strike into Yemen. The target was a terror suspect named Ibraham Al-Banna, an Egyptian man. This time, the drone missed its intended target. Instead of vaporizing Al-Banna, it killed Abdulrahman Al Aulaqi, the 16-year-old American-born son of Anwar Al-Aulaqi. In the span of two weeks, Nasser Al-Aulaqi, the lead plaintiff in the new federal civil rights case, had lost both his son and his grandson to missile strikes authorized and executed in secret by one branch of the federal government.

Here is the heart of the complaint:

At the time of the killing, the United States was not engaged in an armed conflict with or within Yemen. Outside the context of armed conflict, both the United States Constitution and international human rights law prohibit the use of lethal force unless, at the time it is applied, lethal force is a last resort to protect against a concrete, specific, and imminent threat of death or serious physical injury. Upon information and belief, Anwar Al-Aulaqi was not engaged in activities that presented such a threat, and the use of lethal force against him was not a last resort.

Even in the context of an armed conflict, the law of war cabins the government's authority to use lethal force and prohibits killing civilians who are not directly participating in hostilities. The concept of "direct participation" requires both a causal and temporal nexus to hostilities. Upon information and belief, Defendants directed and authorized the killing of Anwar Al-Aulaqi even though he was not then directly participating in hostilities within the meaning of the law of war.

A 'CONTINUUM'

The Al-Aulaqi case raises profound questions about law and governance. And it will likely be years before the federal courts complete their deferential (or worse) view of the legal issues raised by the drone program. In the meantime, while we wait for the Justice Department's motion to dismiss the case, a quick word on the connections between America's "targeted killing" program and the nation's capital punishment regimes. There are more similarities than you think. And if we are to have a serious national debate about drone strikes, we ought to at least recognize that.

Whatever else it is, the government's 'targeted killing" program, when directed against U.S. citizens, is capital punishment in its swiftest form. Yet the men killed in Yemen last fall were killed (arguably, executed) without a hearing or a trial, on the basis of secret evidence that no federal judge ever examined. This is legally justifiable, the Obama Administration tells us, because the men on the "kill lists" are terrorists who pose "an imminent threat of violent attack" against Americans or American interests. These suspects, the argument goes, simply aren't "due" the panoply of "due process" we give domestic criminals in capital cases.

So America today summarily kills citizens it believes are terrorists who are fomenting violence. And it provides citizens charged domestically with actual violence with a lawyer and a trial and appellate rights. As the drone program rolls on, as "targeted killing" becomes more fundamentally a part of the military's arsenal, you can almost hear the question posed from sea to shining sea: if we can whack a citizen like Al-Aulaqi without so much as a moment's notice, then why do we have to give so much due process to killers like Timothy McVeigh or Ted Kaczynski?

If we place drone strikes on one end of the capital punishment continuum and traditional death penalty cases at another point, then what should we make of the clear difference between the two points? And in which direction is the law's politic moving? Will the quick, efficient nature of "targeted killings" (no trials, no appeals, no defense attorneys) push lawmakers toward a further streamlining of procedural protections in traditional capital cases? Isn't that a far more likely scenario than seeing suspects like Al-Aulaqi get a hearing before they are killed by a missile strike?

THE CHORUS

I put a form of this question to Denny LeBoeuf, director of the ACLU Capital Punishment Project. Her response surprised me -- not because of the frustration she expresses, but because of the short distance she believes exists between "targeted killings" and (let's call it) "traditional" capital punishment:

The continuum of government killing that ends in drone strikes, a streamlined new version of the death penalty, connects the modern era of executions to its unsavory history in the United States. The question is not how far is the process of inflicting drone death from the ideal of a full trial with a panoply of rights and resources and process, but how far is it from the reality in the states that carry out executions? And how far is either from their historical origins in the United States, with its history of lynching and government complicity in lawless killings?...

States with the death penalty barely give lip service to the ideals of due process and adequate resources. The law that tolerates the execution of the probably innocent Troy Davis and the execution of the intellectually disabled Yokamon Hearn can accept the idea of killing a citizen without providing even a sleeping lawyer. The whole enterprise demonstrates Justice Kennedy's 2008 observation in Kennedy v. Louisiana that: "[w]hen the law punishes by death, it risks its own sudden descent into brutality."... The use of drones and other summary executions makes that risk a reality. [Some citations omitted]

I put a form of the same question to Ken Roth, the executive director of Human Rights Watch. He responded in a much different way. Recognizing the government's legal authority to use lethal force in non-custodial situations, either against combatants on the battlefield or as a last resort against those posing an imminent lethal threat to others, Roth contends that the Obama Administration even so is "stretching the limits" of that power in ways which disregard the importance of a "protective process" to ensure the reliability and accuracy of the outcome. Roth told me:

So far, the only "process" that the Obama Administration allows before launching a drone attack, under either a war or policing theory, is a unilateral one within the executive branch. The U.S. government isn't allowed even to seek a wiretap without justifying it to an independent court, yet here it is taking lives with no court involvement at all, even though there seems to be time for such review, and the elastic use of war and policing doctrine would suggest the importance of bending over backwards to avoid erroneous or unnecessary killing. Yet this serious procedural shortcoming in no sense justifies the death penalty, even given the panoply of procedural protections allowed in US capital cases. Once a suspect is in custody, he is no longer a combatant, and his death is not necessary to save the life of others. The arguments for the death penalty thus come down to the traditional ones of deterrence, incapacitation, and punishment, all of which can be served by a prison sentence, and none of which justify the inherent cruelty and inevitable arbitrariness of an execution.

I asked the same question of Richard Dieter, head of the Death Penalty Information Center, the nation's leading repository of information about capital punishment. He clearly doesn't buy my theory or agree with LeBoeuf. Dieter's response suggests that he believes instead that there is a vast gulf between traditional capital cases and drone strikes. Here's what he wrote me on Friday morning:

The Death Penalty Information Center does not take a moral stand on issues, including the death penalty. It seems to me that drone strikes are in a completely different area of the law than the death penalty. Killing in a drone strike is not a punishment for crime like the death penalty. Drone strikes would probably be considered, rightly or wrongly, in the area of self-defense. In any case, they come closer to the law of war than to criminal law.

I doubt that the American public sees drone strikes as comparable to capital punishment. Fighting terrorism has to do with national security and is distant from fighting crime. I think that for most people criminal law involves a broad spectrum of offenses, all the way from traffic tickets to murder. People can see themselves being involved in minor offenses and want to ensure that defendants have due process and protection from overreach by the government. Threats to national security are a quantum leap away from most people's common experience and are disconnected from the area in which the death penalty lies.

POSTSCRIPT

Three experts. Three significantly different views of the connection between "targeted killings" and traditional capital punishment. Let's see what happens in the next 12 months as this new lawsuit goes forward, more terror suspects are killed by drone strikes, and capital cases continue to wend their way through state and federal court. At a minimum, the new Al-Aulaqi case ought to entice the federal courts to emerge from their recent torpor to force the executive branch to better account for its deadly program. But I'm not going to hold my breath expecting that to happen. Not now. Not with this Supreme Court.

Me? I believe that the Administration's targeted killing program is constitutional -- and would be found so if the matter ever gets to the United States Supreme Court. But I also believe that, as a form of capital punishment, one which already has been imposed without meaningful due process upon U.S. citizens, the Obama Administration has violated its moral, political and legal obligations to fully explain the justifications for the use of drone strikes. This is unacceptable -- as worrisome and self-defeating as any of the terror law secrecy during the Bush Administration -- and yet will likely continue as Al-Aulaqi v. Panetta rolls on into 2013 and beyond.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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