The Public Authority Exception and the “War” on Terror

In 2010, Anwar al-Awlaki, an apparent member of Al-Qaida, was killed by an authorized drone strike in Yemen. Another man, Samir Khan, also died in that drone strike, though he had not been targeted. This particular drone strike caused quite an uproar in the legal community. Because both of the men killed were actually US citizens. Weren’t they entitled to a trial?

But a federal court of appeals signed off on the killings, so apparently the Department of Justice was satisfied that al-Awlaki needed to die and had in fact been lawfully put to death. Then the New York Times and the ACLU sued to get the documents that justified the killing. And finally, the DoJ coughed up a redacted version of that justification. It hinges on the idea of a “public authority exception” for government agents to use lethal force.

But what is a public authority exception? Simply put, it is the exception that allows a police officer to kill when his life is threatened or when he sees that another person’s life will be threatened if he does not use force in time. This makes sense. If someone starts firing on a police officer, and the police officer defends his own life and kills the attacker in the process, no one is crying that the attacker didn’t get a fair trial.

But does the public authority exception apply for drone strikes on US citizens? That too rests heavily on how you define things. The war on terror is classified as a “non-international conflict” since it does not involve a “clash of nations.” So, apparently, even when the US is offing people in Yemen, it is performing an essentially domestic action. As long as Yemen is okay with the US taking care of its own disputes on their soil, apparently no harm no foul.

But that too is sticky. Would this be the same situation if we were talking about drone strikes in Russia? Last I checked, Obama wasn’t even considering sending a drone to take out Edward Snowden before he leaked any more “classified” information. Because the use of our public authority exception depends greatly on the degree to which we can have our way in the host country. We could invade Yemen if Yemen didn’t cooperate. Our non-international conflict could easily become a clash of nations if Yemen refused to let us “invade.” I’m sure Yemen was looking thoughtfully at the “war” in Afghanistan and thought it best to allow our drone strikes to have more of a policing quality than a military one.

But our military and police forces are quickly becoming indistinguishable—domestically and internationally. There is little difference but the name between a drone strike in a friendly country and a drone strike in a hostile one. The only difference is between countries that can hurt us if they wanted to and countries that can’t.

Which means that drone strikes should properly be considered an act of war executed by the military (not the intelligence community). Aside from the convenience, there is no difference between sending troops into a country to assassinate someone and sending a drone to do the same. Only a weak or a conquered country would allow it. Which is why we haven’t tried it in any country other than that.

I don’t think drone strikes can fall under the public authority exception. Unless you want to loosen that exception to include killings under nearly any pretext. What if I’m suspected of terrorism? Is the CIA allowed to blow up my house without any public trial just because I might end up doing damage to someone? The possibilities for egregious abuse are endless. The public authority exception is based on an individual law enforcers assessment of his own personal risk. If he’s wrong about that risk, he loses his job. What about drone strikes? What happens when we kill someone we shouldn’t have? The fact is that this is just transferring the trial from the court room to the war room. Instead of judge and jury making these decisions after a crime has been committed, intelligence agents and committees make the decision before a crime has been committed. Whether or not they sometimes get it right, the fact is that this process is a perversion of justice and a danger to every US citizen.

In the end, we need to rely on extradition treaties to gain justice in foreign lands. These don’t always work, and that is unfortunate. But we cannot set precedents that would eventually destroy the freedoms and liberties we are apparently fighting to protect.