The Extrajudicial Killing That Didn't Happen

Some of the most powerful people in the U.S. government wanted to kill Mohanad Mahmoud Al Farekh. The military, the CIA, and an influential Republican member of Congress all argued that a drone should be sent to kill the American.

Now he is in custody.

And if convicted of all charges that he faces, he'll get a maximum of 15 years in prison–the same sentence that a brother and sister in Missouri got for growing marijuana.

How can a person narrowly escape extrajudicial assassination, get extradited to the United States, appear inside our judicial system, and face just 15 years in prison? Powerful people were prepared to end his life, but the extent of what they're willing to prove beyond a reasonable doubt wouldn't even draw a life sentence.

That alarming incongruity is inseparable from the decision to depart from the Constitutional system. At the highest levels of government, appointed officials meet in secret proceedings to decide whether or not to kill American citizens without due process. The Constitution requires a trial to convict an American of treason. It demands that "no person" be deprived of life, liberty or property without due process of law. Yet U.S. officials from the Department of Justice, the Pentagon, and the CIA participate in opaque death panels that decide the fates of fellow citizens. They are transgressing against a document that they're sworn to protect and defend.

Until this week, controversy surrounding such proceedings has focused on Anwar al-Awlaki, whose extrajudicial killing was carried out by the Obama Administration. Its legality was defended in a secret legal memo that leaked in 2013. Executive branch lawyers took the position that the targeted killings of an American could be justified if an "informed, high-level official" determined three things:

In my view, the Fifth Amendment renders that test invalid–a single official's judgment does not constitute due process–but even if one doesn't believe it to be facially unconstitutional, the Al Farekh case illustrates its flaws. The New York Times notes "a years long debate inside the government" about whether to kill him. That timeframe alone hints at the nonsensical definition of imminence used by the White House–if a violent attack didn't occur during the course of a years-long debate, calling the hypothetical attack imminent has no meaning. In this case, no attack ever materialized, so it seems clear that the "imminence" threshold wasn't met. And it is equally clear that capturing Al Farekh was possible.

It has now been done!

Yet Pentagon and CIA officials spent years lobbying for permission to kill him. In other words, "informed, high-level officials" judged incorrectly, which might be why the Constitution didn't vest them with the power to condemn citizens to death.

Representative Mike Rogers also urged a killing, prompting David Cole to ask in the New York Review of Books, "Where do members of Congress get authority to advocate for the killing of American citizens? Mike Rogers didn’t get his way, but why should he even have a say in the execution of an American citizen?" In fact, at the time Congressman Rogers was leading the very House of Representatives subcommittee charged with ensuring that U.S. intelligence agencies aren't, say, assassinating Americans. With an intelligence committee chair spurring the president to assert more power rather than reining him in, judicial checks seem more important. But the judiciary has been excluded from this process.

In fairness, the Department of Justice was able to overrule the Pentagon, the CIA, and the congressman, causing this case to end in arrest, as ought to have happened. But Eric Holder won't be running the Department of Justice for much longer. And the attitude of the next attorney general to these matters is unlikely to be fully aired in public since the protocols are shrouded in secrecy and contradictions.

Indeed, even Holder's standards are worryingly unclear.

As Brett Max Kaufman notes, "If the executive branch believes it can substitute its own process for that of tried-and-true courtroom process when it comes to satisfying the constitutional rights of American citizens, the internal evidentiary standards it employs to make decisions about life and death are of paramount consequence." But those standards have not been publicly disclosed in either the Awlaki case, which ended in the killing of an American, or the Al Farekh case, which ended in capture.

In the criminal justice system, where defendants must be proved guilty "beyond a reasonable doubt," innocents are regularly convicted despite their ability to see all the government's evidence, cross-examine its witnesses, and offer an affirmative defense. Yet the president would have us believe that a secret, non-adversarial method of deciding guilt is adequate in what are, effectively, death-penalty cases. While some might argue that Al Farekh's case is an example of that method working, it is beyond dispute that "informed, high-ranking officials" in the military and the CIA spent years lobbying to kill an American citizen, even though, in hindsight, no terrorist attack would've been prevented by doing so–and even though capturing, extraditing and charging Al Farekh only took time to achieve.

As a senator, Obama would insist that Americans don't have to choose between core liberties and safety in the war on terrorism. The Al Farekh case is consistent with that view.