The Case for Killing Americans

Article excerpt

Byline: Daniel Klaidman

Inside the White House debate over how to talk about al Qaeda's Anwar al-Awlaki.

After months of internal debate, the Obama administration is planning to reveal publicly the legal reasoning behind its decision to kill the American-born leader of al Qaeda in the Arabian Peninsula, Anwar al-Awlaki.

Awlaki, whom American officials had identified as the chief of external operations for the al Qaeda affiliate, was killed in a CIA drone strike last September in Northern Yemen. The targeted killing was one of the most controversial actions in Barack Obama's war on terror. Civil libertarians and human-rights activists have argued that it amounted to a summary execution on the basis of secret evidence and without due process. Defenders of the administration have maintained that the killing was a necessary and lawful act of war to prevent an imminent threat to the safety of the American people.

But the Obama administration itself has said next to nothing about it. At a farewell ceremony for retiring Joint Chiefs chairman Mike Mullen just hours after the strike became public, Obama hailed "the death of Awlaki," calling it a "major blow" in the fight against al Qaeda. But he made no mention of U.S. involvement in the operation. (The CIA's drone program is classified and therefore not publicly acknowledged by government officials.)

Now the administration is poised to take its case directly to the American people. In the coming weeks, according to four participants in the debate, Attorney General Eric Holder Jr. is planning to make a major address on the administration's national-security record. Embedded in the speech will be a carefully worded but firm defense of its right to target U.S. citizens. Holder's remarks will draw heavily on a secret Justice Department legal opinion that provided the justification for the Awlaki killing. The legal memorandum, portions of which were described to The New York Times last October, asserted that it would be lawful to kill Awlaki as long as it was not feasible to capture him alive--and if it could be demonstrated that he represented a real threat to the American people. Further, administration officials contend, Awlaki was covered under the congressional grant of authority to wage war against al Qaeda in the wake of 9/11.

An early draft of Holder's speech identified Awlaki by name, but in a concession to concerns from the intelligence community, all references to the al Qaeda leader were removed. As currently written, the speech makes no overt mention of the Awlaki operation, and reveals none of the intelligence the administration relied on in carrying out his killing. (White House spokesman Tommy Vietor declined to comment).

That circumspect approach contrasts dramatically with the administration's posture in the aftermath of Osama bin Laden's death, when the president personally addressed the nation to announce the al Qaeda leader's demise, and key members of his team provided on-the-record accounts of the operation in almost novelistic detail. But the circumstances of that operation differ in crucial respects from the Awlaki strike. The latter involved the CIA's still secret drone program, and Awlaki was American-born, adding an additional level of sensitivity.

In the aftermath of the Awlaki operation, civil libertarians and some prominent members of Congress called on the administration to make its legal analysis public. Some supporters of disclosure, including Sen. Dianne Feinstein of California, have made the case to Obama officials that speaking openly would be the best way to maintain public support for a program that they believe is necessary but remains controversial.

For Obama the question pitted two core principles that he has, at times, struggled to balance: rolling back the Bush administration's penchant for secrecy in counterterrorism, and adequately protecting the intelligence community's most sensitive sources and methods. …