What Prevents Obama From Killing Men He Could Capture?

He has huge political incentives to use drone strikes rather than trying or indefinitely detaining suspected terrorists. That makes oversight all the more important.

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Words attributed to Barack Obama appear to be "the first instance in American history of a sitting President speaking of his intent to kill a particular U.S. citizen without that citizen having been charged formally with a crime or convicted at trial," Steve Coll writes in a new essay about targeted killing. Unlike most arguments about the extrajudicial assassination of American citizens, a phrase that still gives me chills every time I type it, Coll doesn't dwell on the Fifth Amendment guarantee of due process to "any person" that the Obama Administration is violating.

He mentions that transgression, but focuses on something else. Attorney General Eric Holder, in a speech about targeted killing, said that it is legal in the following circumstances: "First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles."

There are any number of problems with that logic, Coll says, before zeroing in on one of them: Is the Obama Administration actually only targeting U.S. citizens when "capture is not feasible"? After reading Kill or Capture by Daniel Klaidman, a former Newsweek editor, Coll doubts it:

"Kill or Capture" conjures an image of Obama and his counterterrorism advisers holding one anguished debate after another about whether to immolate terrorism suspects with Predator drones, as they did Awlaki, or send in Special Forces or local militias to capture the accused for trial. In fact, the book makes clear that the Obama Administration has judged again and again -- almost routinely -- that capturing terrorist suspects outside of Afghanistan (where there is a friendly host government and an extensive prison system) is not feasible. According to Klaidman, Obama's advisers have concluded, for example, that the risk of creating political turmoil in Yemen is reason enough to avoid attempting an arrest there by, for example, landing Special Forces on the ground -- as if Yemen were not already in a state of perpetual turmoil ....

Even more disturbing is the evidence in Klaidman's narrative suggesting that the Obama Administration leans toward killing terrorism suspects because it does not believe it has a politically attractive way to put them on trial. Federal criminal trials of terrorist suspects draw howls of protest from many Republicans, even though the George W. Bush Administration successfully prosecuted a number of high-profile terrorists in federal court. Military commissions, the Obama Administration's reluctantly endorsed best-of-the-bad alternative to federal trials, are unpopular with civil-rights activists and European allies, for good reason, because of their relatively weak protections for defendants. But is political discomfort about this choice of trial venues a reason to override the Fifth Amendment, in the case of a targeted American citizen like Awlaki? Doesn't the case-by-case application of the due-process clause require some extraordinary finding by the president that capture is not possible?

There is no way for the American people to know whether the Obama Administration is making a good-faith effort to determine whether it is feasible to capture someone on their list of accused terrorists. But this is certain: There are powerful political incentives to fudge their analysis. That is reason alone for oversight.

Checks and balances are always important, and never more so than when life or death hangs in the balance. At Guantanamo Bay, where accused terrorists were housed after being captured, it was once said all were "the worst of the worst." We found out that many imprisoned there were innocent. Says Coll, "Shouldn't there be a bias in operations, when an American citizen is involved, toward making an arrest?" Yes, especially given our track record divining guilt.

That's unlikely so long as the president is operating unilaterally, in secret, and with perverse incentives.