Private: Secrets and Drones

By Joanne Mariner, Director, Hunter College Human Rights Program

Anwar al-Awlaki, recently killed by a drone strike in Yemen, was a talented terror propagandist. “Intelligent, sophisticated, Internet-savvy, and very charismatic” is how a Yemeni counterterrorism official described him last year.

The real question, though, is whether his role was much more than that, as the U.S. government has claimed. Al-Awlaki, President Obama said on the day of the strike, “was the leader of external operations for al Qaeda in the Arabian Peninsula,” a man who had taken charge of “planning and directing efforts to murder innocent Americans.” It was al-Awlaki’s operational responsibilities, not simply his oratorical skills, which were said to have sealed his fate.

But it’s worrying that no one without access to classified information can meaningfully respond to the president’s assertions. Whatever evidence supported the government’s decision to kill al-Awlaki is secret; indeed, even the process by which this evidence was assessed has not been officially explained.

Unlike the verdict in a criminal case, where the evidence against the defendant has been subject to challenge in adversarial proceedings before a court, the decision to kill al-Awlaki rested on undisclosed and untested grounds. For the American public, with no access to the underlying intelligence, this essentially means taking the administration’s claims on faith.

One doesn’t have to reflect long on recent history to conclude that this is a problem. It was untested and erroneous intelligence that purported to justify the 2003 invasion of Iraq. It was also, though somewhat less notoriously, faulty intelligence that led the CIA in 2004 to kidnap German-Lebanese citizen Khaled el-Masri and hold him for five months in a secret prison in Afghanistan. And according to several federal judges it was shaky and unreliable intelligence that underlied the Bush administration’s decision to hold innocent men like Turkish citizen Murat Kurnaz in military detention at Guantanamo for years.

Secret evidence is, in some basic way, inherently unreliable. It may justify an investigation, but that does not mean it is enough to justify the purposeful and irreversible deprivation of life.

Under the Fifth Amendment to the Constitution, “no person shall … be deprived of life, liberty, or property, without due process of law.” What process is due varies according to the circumstances, but the range of options is not unlimited. The complex mechanics of our criminal justice system would be rendered absurd if the government could simply bypass them with the use of a drone.

By refusing to release any evidence that might link al-Awlaki to acts of terrorism, the administration has invited continuing questions about al-Awlaki’s status as a terrorist leader. But the real problem with the administration’s approach is not in how it justifies its actions after the fact. Rather it is in the inherent dangers of making life and death decisions via a process that is built on secrets, operated in secrecy, and subject to few obvious constraints.

National Security and Civil Liberties