The Argument Against Going After al-Qaeda Leadership

Anwar never saw it coming

Anwar al-Awlaki

The U.S. government on Friday trumpeted the killing of Anwar al-Awlaki, the American-born cleric who rose to the top of al Qaeda in Yemen. He was taken out by a CIA-operated drone missile as he sat in a vehicle with another American radical, reportedly the editor of an online jihadist magazine.

Awlaki’s death comes in the midst of a contentious debate between the State Department and the Pentagon: In its ongoing efforts to prevent another terrorist attack, can the United States use drone missiles to kill suspected terrorists? And what if those suspects are far from any battlefield, in countries with whom we are not at war? Getting Osama bin Laden and other high-ranking al Qaeda officials has been the focus of U.S. efforts so far, but that soon may change.

Prof. David Cole

David Cole, a professor of constitutional law, national security and criminal justice at Georgetown University Law Center, recently wrote about the implications of that discussion for the New York Review of Books. Editorial writer Linda Ocasio spoke with Cole about his thoughts on what the shift in strategy might mean for the United States and its relations with other nations.

Q. We’ve been told for the last 10 years that the war on terror is a war like no other. We’re fighting stateless terrorists, so why is it a problem to chase after them, no matter where they are?

A. First of all, it’s not a war on terror. That’s like having a war on poverty; it doesn’t make sense. Obama has avoided that rhetoric. It’s a war with the organization that attacked us on 9/11, al Qaeda, and the group that harbored it, the Taliban.

Using military force against them is one thing. When you start saying you can target anyone, not just members of groups against which Congress authorized military action, in any country, we’re overstepping the authority that international law and the U.S. Constitution give us.

In a military conflict, the U.S. unquestionably has the authority to kill those fighting against us on the battlefield. But where do we get the right to target and kill a member of al Shabab, a militant group in Somalia, where we are not at war? Is it enough that the group is believed to have some al Qaeda sympathies?

The use of military force is permitted within the confines of war, not outside it. From my view, it’s critical we have clear lines about when it is appropriate to use these practices and when it is not. And thus far, the policy has operated in secret, without any clear lines that we can see.

Myself, being former military, would go after ALL enemies Foreign AND Domestic, Just what he swore an oath to do. 

Q. Was the killing of al-Awlaki legal?

A. The killing of al-Awlaki may or not have been legal. He was far from any battlefield, but news reports state that he was involved in encouraging or directing several attacks, including that of the "Christmas Day bomber," and may have been planning future attacks. If that is true, and if he was effectively a "co-belligerent" fighting with al Qaeda, and if Yemen could not detain him, the attack may well have been legal. But because the entire drone program operates under a shroud of secrecy, we just don’t know.

And regardless of the legality of this particular attack, it ought to be a matter of grave concern to all Americans that our government is killing its own citizens pursuant to a program that it has yet to delineate or defend publicly.

Once again, The President can use the military to protect and defend this country and the Constitution, we've seen terrorist activity  in this country waged on us by fellow Americans Richard Reid, Jose Padilla, Narseal Batiste, Patrick Abraham, Stanley Grant Phanor, Naudimar Herrera, Burson Augustin, Lyglenson Lemorin, and Rotschild Augustine.

Q. Was there any question that we had a right to assassinate Osama bin Laden?

Captured Somali Pirates

A. No, he’s the leader of al Qaeda, and we targeted him in Pakistan, from which many attacks have been launched by al Qaeda, so that was permissible. What’s troubling about the debates within the Obama administration is that they’re not talking about targeting al Qaeda leaders, but rank-and-file members of other groups that have in-directly attacked us, in countries far from the military conflict, like Yemen and Somalia.

Q. What would be the consequences to the U.S. of pursuing that strategy?

A. We have to ask: Is this a strategy we would be comfortable with other countries employing? Other countries may already have, or will soon develop, drone capability.

Do we want China, Russia or Pakistan to use targeted missiles to kill people, in other countries, they claim they suspect of terrorism? It’s a very dangerous sort of strategy, which could create more military conflict, war and instability around the world.

Was there anyone Expecting four commercial airliners to be used as manned missile on 9/11?

Q. How then do we effectively pursue those plotting against the United States?

A. Outside of a specific ongoing war, the state generally may not simply kill those it suspects of wrongdoing. We require a trial and appeals process so we don’t punish, much less kill, the wrong people — even for terrorist offenses.

We have successfully dealt with many terrorist threats through the criminal process, working with allies and other nations to bring people to justice. While killing is an inevitable part of war, it is critical that we have clear lines that distinguish war and peacetime authorities.