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How Does the Death Penalty Differ From Drone Strikes?

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?

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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, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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