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The Drone of Damocles

Today it was reported that radical Islamic cleric Anwar al-Awlaki was killed in Yemen, apparently in a precision attack by a US drone aircraft. He is ‘credited’ with both direct and indirect involvement in most of the major attempted and successful terrorist attacks in recent years, including the so-called “Christmas bomber” and conversing with Major Nidal Hassan before the Fort Hood massacre. Sounds like a significant victory for the US against al-Qaeda, right?

Al-Awlaki, and Samir Khan, also killed in the attack, were allegedly American citizens.

Yes, it is a victory, weakening al-Qaeda by removing major players familiar with technology, English, and American culture, so uniquely positioned to plan well-designed and -executed attacks.

BUT, as American citizens (if they really were), they are subject to the protections of due process afforded by the Constitution. Yet, by being specifically targeted for elimination, they were in effect executed without due process.

Yes, they are traitors to this country, but the Constitution doesn’t waive due process for traitors. In fact, Article III, Section 3 states:
“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”

The fact that the section specifically mentions the person being convicted implies due process.

Note:  I am not making a political statement here. I am examining a complicated issue that involves the rights of citizens exacerbated by technology and the way we train our students to evaluate ethically challenging decisions and weaving through conflicting principles.

The US is currently engaged in fighting a terrorist organization that has declared war on the nation. The fact that it is an international organization instead of a sovereign nation makes the rules of engagement that much more complicated. Members of the organization are citizens of dozens of nations—Saudi, Yemeni, Afghani, …and even American.

Furthermore, as an international organization, they have bases in many nations, so the US is facing a declared enemy that operates out of a multitude of sovereign nations who may or may not be supporting the organization, but officially are not. When the US attacks one of these enemy bases, it is in effect violating the sovereignty of the nation in which the base is located. Consequently, the US is technically required to obtain/negotiate permission to make such excursions or to smooth things over afterwards.

Fortunately, the US has the technology to make highly precise attacks, such that ‘collateral damage’ to non-involved parts of the sovereign nation is greatly minimized, which means the risk to the ‘host’ nation is lessened, increasing the probability of their granting permission to the US to carry out the attack.

Now, in most traditional military attacks, an entire force of the enemy is attacked, and thus whoever is in the enemy camp (force, patrol, convoy, etc.) is a target corporately, so if an American traitor is present, their death would be considered collateral damage or something similar. This does not raise a Constitutional issue.

However, the American ability to make extremely precise targeted attacks challenges this traditional loophole. And the explicitly reported fact that the US government specifically approved the elimination of these two individuals via this precision attack capability does raise constitutional issues. The attack was targeted to the exact vehicle in a convoy that carried al-Awlaki. This is precisely defined as a targeted hit, not a general attack on the enemy force. It is this that causes the controversy, regardless of the guilt of the eliminated party.

If it was known to a military commander in a traditional attack that the enemy they faced included suspected or known American traitors, he would not usually be required to try to differentiate between the enemy forces and kill the foreign enemies and capture the traitors. However, after the battle, survivors would be differentiated on this basis. Similarly, domestic rebels would be faced in battle as enemies, but surviving prisoners would be held, with the option of trying them as traitors. This is why Lincoln and Grant needed to explicitly pardon Confederate soldiers after the Civil War.

There are multiple core principles involved here. One is the need to eliminate a declared enemy. Another is that the US is a nation of Law governed by a Constitution, which outlines acceptable actions against its citizens accused of crimes, including treason. There are others, but it seems these are the primary ones.

It is easy to get carried away in the eagerness to eliminate key enemy players. The death of Bin Laden is akin to targeting Hitler in WWII or killing Pancho Villa for his leading an invasion of the US. “Killing the head of the snake” is a valid principle in warfare, and has been for all of human history. It is generally a morally valid choice as well. If one values human life, then the killing of an enemy leader that causes the other side to lose focus or will or ability to fight has the effect of shortening the conflict and saving human life on both sides.

Often, such an approach is not accomplished in traditional battle, but through subterfuge, black ops and the like. This raises other issues of legality in terms of rules of engagement, treaty, international law or even domestic law. Such discussions are real but outside the scope of this post.

But all of this becomes all the hairier if the head of the snake is also a citizen. Our society has largely adopted a morality of pragmatism rather than of principle based on an objective external standard. Originally this objective external standard was God’s character as revealed in the Bible. The founders explicitly used this as the foundation for this country’s Constitution—the embodiment of the US standard. It is not as objective as you might think, given the amount of judicial arguments over things.

Given this fact, the founders realized that it took a wise and morally educated citizenry to handle such a document effectively and in the spirit in which it was written. John Adams said this explicitly, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

Pragmatism is a valuable tool in applying moral decisions to specific situations, but it must be a servant to a moral framework. It is insufficient as its own moral framework because pragmatism is a subjective value, and what is practical to one party can be destructive to another. Thus, a pragmatic morality favors the desires of whatever party has more power in the specific issue. This is a recipe for injustice and oppression.

Are we teaching our students (our future leaders) a pragmatic code of ethics or are we teaching that there are objective external codes of behaviour and how to wisely apply them to difficult situations, and how to separate emotion and other forms of bias from the objective factors of a situation?

What will be the impact of either choice?


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