The New York Times carries a story on the legal justification for killing rather than capturing al-Awlaki. Link below I hope but I’m not sure. If not, search Times for “Secret US Memo Made Legal Case to Kill a Citizen, it is worth reading.
While the legal case determines that capture would be impossible or at least highly impractical and the story emphasizes that this was a one-time, one person opinion, who can doubt the appeal of the rationale for killing people determined to be “bad guys” by a president and his key advisers?
The Patriot Act and subsequent legislation when being considered by Congress included a multitude of ways in which established legal principles protecting individuals’ rights were diminished or eliminated. These diminished protections required the police and intelligence agencies to meet high standards for carrying out their activities against you. The 9/11 attack and the justifiable public fear and outrage provided enough public support to assure the Patriot Act’s prompt passage without serious review and discussion. The police and agencies took advantage of that environment to seek and obtain lower standards in areas that made adherence to the standards highly inconvenient for them. At the time, no one knew if any of them were of any importance in the ill-defined conflict that had begun on 9/11, but they were of general “convenience” to police and the agencies.
Thus far, there has been no public appetite to look carefully at the implications of these laws and more that are proposed. Civil libertarians are a group at the margin of legal debate currently (although there do seem to be a few more voices of concern lately).
Drone and missile technology advances apace with precision increasing dramatically from what it was early in the Afghanistan War. How precise it can be is, I’m almost certain, both classified and increasing rapidly.
One might easily enough make the case that the risks to the SEALS associated with killing Bin Laden were justified by his prominence in the events of 9/11 and the same case for his successor who was then his deputy, if or when that happens, as necessary for the public to satisfy its retributive passion as well as be satisfied that he is not out there somewhere planning another big attack on us.
What becomes more difficult as time passes and the identity of significant terrorist leaders is less well-known generally is the risk of American lives to capture and/or kill them if capture is impossible at the point of engagement.
If a drone can simply remove completely the risk of American (and allied) casualties and the leaders are many, distributed, and having information to yield about their small group only, well, send the drone to kill them.
At this point killing them becomes purely convenient and unrelated to capture. And, if they are Americans, the justification for killing them remains in the hands of the executive and secret from the public.
We have seen the new “convenience” powers of the government divorced from exclusively “terrorist” suspicions and made available for more general criminal use against Americans domestically without suspicion.
Who can imagine that, with a few tweaks here and there, the “one-time-only” opinion can permit killing of people domestically, for no better reason than capturing risks police casualties? Police casualties are risks and police operations are often “inconvenient.”
I think it can be “tweaked” and, unless Americans show greater concern about these issues, if not sooner, then later, it will be.