The question of whether it is justified to use a drone to kill an American terrorist overseas is best answered if we imagine that the target had acted in the same manner—but wearing a uniform. If that soldier was part of an army that had attacked us in the past (call it al-Qaeda) and he was preparing for a new attack—or even regrouping between attacks—then he would be considered a fair and legitimate target. There seems little reason he should be treated more benignly just because he violated the rules of armed conflicts by donning civilian clothes that make him much more difficult to identify.
Thus, the first requirement for targeted killing should be one that is not included in a recently leaked “white paper” that served as the basis for many of the questions hurled at John Brennan: Has the administration verified that the said person is terrorist? Is he a member—worse yet, a high-ranking one—of al-Qaeda or one of its affiliates or some other such terrorist organization? In order for even a non-American to be on the approved kill list, such evidence must be available from two independent intelligence sources.
Even critics concede that before the authorization to kill is granted there is considerable review within the administration. Lawyers review the case and, before it reaches them, it must meet several criteria, including that the terrorist cannot be captured without undue risk to our troops and that the expected collateral damage in taking him out will be limited.
Critics complain that Congress and the courts are not involved in these reviews. Actually, although Congress cannot and should not be involved in reviewing each case, it is actively involved in reviewing the procedures used. Indeed, the white paper made it to the media because it was submitted to Congress as part of that branch’s review of the targeted assassination program.
Moreover, as Senator Diane Feinstein has stated, “the Senate Intelligence Committee is kept fully informed of counterterrorism operations and keeps close watch to make sure they are effective, responsible and in keeping with U.S. and international law.” Further, Feinstein has affirmed that staffers “question every aspect of the program including legality, effectiveness, precision, foreign policy implications and the care taken to minimize noncombatant casualties.”
U.S. civil courts have not been granted oversight for good reason. They are not suited for dealing with cases that involve classified information, sources and methods that need to be protected, and situations wherein the accused can neither be cross-examined nor face his accusers.
Many of the questions and criticisms raised by the white paper have focused on the criterion that targets must pose an “imminent” danger to the United States, which indeed has been given an expansive interpretation. This term is obviously employed in order to try to tie necessary counterterrorism measures to established international norms and laws, which recognize—as the UN charter does—that a nation has a right to act in self-defense when its citizens are in immediate danger. “Imminent” to most people connotes enemy troops lined up across the border ready to attack, or a North Korea or Iran loading nuclear arms onto the tips of transcontinental missiles capable of reaching our shores. However, because terrorists disguise themselves as civilians and attack with no warning—as they did on 9/11—a nation that seeks to defend itself must either broaden the meaning of “imminent” danger or allow its citizens to be killed en masse.
Being a member of an organization such as al Qaeda should suffice. It is not a dual-purpose group whose members engage in social service or political action while some moonlight as terrorists. Its stated goals and main—if not total—body of activities is aimed at killing, maiming, and terrorizing us. This is sufficient reason to take out its members, as long as we have solid evidence that the given person is a member of this or some other terrorist organization.
No mention is made in the white paper of an issue that communitarians, concerned not just with rights but also with responsibilities, find compelling. U.S. citizen terrorists differ from others, not only because they have extra rights, but also because they have committed an extra offense. When they raise their arms against their own community, they commit treason, which cannot be said of terrorists who hail from other countries. And the constitution is exceptionally clear about the way traitors should be treated: “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act.” So be it.
Amitai Etzioni served as a senior advisor to the Carter White House; taught at Columbia University, Harvard and The University of California at Berkeley; and is a university professor and professor of international relations at The George Washington University. His latest book is Hot Spots: American Foreign Policy in a Post-Human-Rights World.