Two editorials by major American newspapers on Friday highlight the need for increased oversight and transparency over the United States’ counter-terror targeted killing programs. The editorials, in the New York Times and Los Angeles Times, are responding to a recent court ruling that the Obama administration was not required to disclose a document outlining its legal justification for killing American citizen Anwar al-Awlaki in Yemen in 2011. Though the judge in the case, Colleen MacMahon, called for greater transparency with respect to the drone program, she also concluded she was legally incapable of ordering it, a point the New York Times — one of the plaintiffs challenging the government in the suit — took issue with:
For starters, various government officials have spoken publicly about the American role in killing Mr. Awlaki and the circumstances under which the government considers targeted killings, including of American citizens. At President Obama’s nominating convention last summer, a video prepared by his campaign listed the killing of Mr. Awlaki prominently among Mr. Obama’s national security achievements.
Such a selective and self-serving “public relations campaign,” as the judge termed it, should have been deemed a waiver of the government’s right to withhold its legal rationale from public scrutiny. Moreover, disclosing the document would not have jeopardized national security or revealed any properly classified operational details. The ruling, which is inconsistent with the purpose and history of the information disclosure law, richly deserves overturning on appeal.
While the Los Angeles Times is more sympathetic to MacMahon’s legal reasoning, it also believes more transparency is needed on the legal justification for killing Awlaki, writing that “If [the Obama administration] is going to act as judge, jury and executioner, the least it can do is divulge its legal reasoning.”
Some of the arguments in the government’s 50-page memo justifying the strike on al-Awaki have been released publicly. It appears to argue that since al-Awlaki was waging war on the United States as a member of al-Qaeda, it would be lawful to kill him despite his citizenship if and only if he cannot also be captured. CAP’s Ken Gude agrees with this reasoning, writing that the al-Awlaki case “was an airstrike that resulted in the death of a legitimate military target based on the power Congress granted the president in the 2001 AUMF [Authorization to use military force].” Critics charge, for example, that such reasoning would only apply if al-Awlaki were on a battlefield in active combat with American forces. It is hard to assess this debate without access the government’s full legal justification for the strike.
But the legally surrounding the strike on al-Awlaki is separate from the broader debate about the legality of the targeted killing program under domestic and international law. As Gude noted in the same piece quoted above, “There are reasonable questions raised about the interpretation of the 2001 AUMF when targeting or detaining suspected terrorists.”
Forcing the government to disclose a full legal rationale for strikes like the one against al-Awlaki is only one possible mechanism for improving transparency over drone strikes. Though there is some information about how the administration decides who to target, it could release a more comprehensive explanation of the procedures by which it decides to kill without endangering intelligence sources. This could include a clear explanation of how those procedures attempt to avoid civilian casualties, as disclosures last year raised the troubling prospect that the mechanisms for counting civilian casualties were designed to minimize them. Finally, an internal independent oversight commission like those used in the United Kingdom and Australia could potentially pose a check on possibly arbitrary and immoral targeted killing.