Director of National Intelligence Dennis Blair told to Congress Wednesday that the U.S. can target Americans to be killed if it believes they are involved in terrorism. This supports an earlier report that the CIA and JSOC maintain White House-approved "kill lists" of three to four Americans. Blair articulated the policy as requiring high-level approval but did not mention Congressional oversight or judicial review. He described the criteria as "whether that American is involved in a group that is trying to attack us, whether that American is a threat to other Americans." So far, the only confirmed American target is Anwar al-Awlaki. The vagueness of Blair's criteria, as well as the assertion that Awlaki meets those criteria, raises the question: What gets an American citizen on the kill lists?
A 1981 executive order signed by President Reagan explicitly bans assassination by the U.S. government. However, in 2002, the Bush administration issued a secret finding allowing the CIA to target Americans directly involved in terrorism. American citizen Kamal Derwish was killed in 2002 under this authority, struck by an unmanned drone while traveling in a car with the al-Qaeda organizer of the 2000 attack on the USS Cole. The 2002 policy, which did not extend to JSOC, claimed that "enemy combatants" can be killed, a phrase that the Obama administration does not use.
(That JSOC, officially secret special missions units, reportedly maintain a separate kill list raises a separate set of questions. Why is a military outfit being granted authority once exclusive to the CIA? What necessitates keeping them separate? And what does this mean for JSOC's rise as a parallel CIA that the White House has been accused of running directly out of its offices to escape Congressional oversight?)
The Obama administration has disregarded the term "enemy combatant," but how, then, does it define someone justifying killing? Awlaki, the only confirmed name of Obama's four approved targets, is an unusual case. A New Mexico-born American citizen and Islamic cleric who now lives in Yemen, Awlaki's sermons encouraging terrorism make him a high-profile figure on "jihadist forums," a loose online community of militant extremists. (He cannot legally renounce his American citizenship.)
Though meant to incite violence, Glenn Greenwald explains that Awlaki's speech is Constitutionally protected. If he is being targeted exclusively for his speech, it would be a difficult position for the White House to defend.
Blair, in his testimony, deflected criticism that Awlaki is targeted for his speech. "We don't target people for free speech. We target them for taking action that threatens Americans or has resulted in it." We don't know what that action is, but Awlaki is just a cleric, if an extremely volatile and militant one. Nothing in his history indicates that he could make a bomb, pick up a gun, or plan an attack. That he is nevertheless targeted raises questions about how he met the criteria for targeted killing. More pointedly, it raises questions about what those criteria are.
The most sympathetic case I can imagine for targeting Awlaki is that he was using his public platform to liaison would-be militants with al-Qaeda officials. Could Awlaki have been acting as an informal recruitment point for al-Qaeda in the Arabian Peninsula (AQAP), the terrorist group allegedly behind the failed Christmas day airliner plot and other attacks? Both Awlaki and AQAP are in Yemen and thought to be in contact.
This is purely speculation, of course, but it's not a stretch, and the U.S. intelligence community could foreseeably conclude as much. After all, Fort Hood shooter Nidal Hasan attempted to contact Awlaki. The level of their correspondence remains unclear, but it raises the possibility that Awlaki is regularly or at least occasionally contacted by other would-be militants. His status as a visible figure among web-based militants would make him a natural contact point for individuals wishing to pursue terrorism. This in turn would make him attractive to AQAP as a way to connect with potential recruits. Linking those recruits to AQAP, as he is suggested to have done with Christmas day attacker Farouk Abdulmutallab, would certainly be more damaging to the U.S. than simply preaching sermons.
Again, this is hypothetical. And even if this is true, it would still mark an unprecedented expansion of what it takes for an American to be deemed a national security threat so immediate that he or she merits targeted killing. Facilitating recruitment would be substantially helpful to terrorist groups, but would not be the same thing as actually planning or executing acts of terrorism. We have legal distinctions for a reason. Homicide, for example, is carefully delineated into categories of manslaughter versus murder, then further into "degrees" by circumstances and intent. Accessory to homicide, though clearly a crime, is considered far less severe. But a policy that targets Awlaki would seem to conflate not just all terrorist acts, but even acts we might deem "accessory to terrorism." Is that really a national security threat immediate enough to justify targeted killing?
It would be one thing if such activity implied criminal or even military charges, because at least those allow a judge to evaluate the evidence and the accused to mount a defense. But in the current scheme, the accused does not even know he is accused, nor does an independent judge approve the White House's decision. That person is simply killed.
No one is arguing that Awlaki isn't a dangerous and bad person. But if he meets the criteria for targeted and unreviewed killing by the White House, it is a shocking indication of just how broad those criteria have become. More to the point, it is a reminder that, without congressional oversight or court approval, the White House is free to rewrite those criteria at any time it chooses and to reinterpret them in any way it sees fit.
Update: Newsweek's Mark Hosenball reports that specifically targeting Americans requires approval from a special committee consisting of "senior intel officials and members of the president's cabinet" but not the President himself. However, such approval is only required if an American is the primary target of the strike. Troublingly, it would seem that the CIA and JSOC need no special approval to knowingly kill an American as a "secondary target" if he or she is simply in the immediate vicinity of a primary target. If true, the authority for such killing would be little more than guilt by association.