Of all the people the United States government killed in the eight years of Barack Obama's presidency, one of the most controversial targets was Anwar al-Awlaki, a US citizen and imam who at the time of his death had become the face of al-Qaeda in the Arabian Peninsula. The US killed Awlaki in a drone strike in late September of 2011 -- despite having never charged him with a crime or presented evidence of his guilt in court -- marking what The New York Times described as the "first time since the Civil War [that] the United States government had carried out the deliberate killing of an American citizen as a wartime enemy and without a trial."
Now, as President-elect Donald Trump prepares to take office after a campaign in which he promised to carry out war crimes, such as killing the families of suspected terrorists and reviving the torture program, Awlaki's death is getting renewed attention. If Awlaki, a US citizen, could be deprived of life without judicial oversight, what limits will there be on Trump's authority to carry out similar strikes against citizens and non-citizens alike?
Jameel Jaffer, author of the new book The Drone Memos and director of the Knight First Amendment Institute at Columbia University, explained to me that at its core, the Awlaki case was about centralized power in the executive branch.
"My concern is, the Obama administration claimed the authority to kill people far away from conventional battlefields without ever having to account for its action to any court," Jaffer told me in a phone interview. "And the al-Awlaki case was really about that question: Should the government be able to kill its own citizens without explaining to a court why it's doing it? The Obama administration was very successful in persuading the courts to defer to the executive branch. The result is that this awesome power is not subject now to any meaningful oversight by the judiciary. And that power will now be available to the next administration."
That worry is echoed by Naureen Shah, director of national security and human rights at Amnesty International. "The concern that I raised for several years was that President Obama was acting as judge, jury and executioner with the drone program," Shah told me. "And if you apply that to President-elect Trump, I think a lot of people would be very frightened."
Although the first known US drone strike was carried out under President George W. Bush, Obama significantly accelerated the pace of so-called "targeted killings" via drones during his time in office. An independent estimate from the Bureau of Investigative Journalism places the total number of deaths from semi-covert strikes in Pakistan, Yemen and Somalia between 3,322 and 5,267. After years of sustained criticism from human rights groups, much of it centering on the Obama administration's extreme secrecy around the drone program, the White House released a three-page report detailing the number of civilians believed to have been killed by US drone attacks. Their number was significantly lower than the totals reached by outside observers, and the report was criticized for being light on details.
"Despite Obama administration claims of increased transparency and restraints on strikes outside areas of active hostilities, we still know very little about how the US determines who can and cannot be killed in these strikes, the factual claims in support, and the legal authority used," Laura Pitter, senior national security counsel at Human Rights Watch, told me. "Limits placed on them should apply to everyone equally -- not only, or to any greater degree, on US citizens. "
Pitter's argument that restrictions on the killing programs should not be limited to US citizens is widely shared amongst human rights groups. Still, as Jaffer told me, if there were going to be any limiting factor on these authorities, US citizenship is one place courts should look. "If even an American citizen isn't entitled to any form of judicial process, then there's no argument that a non-citizen would be entitled to it," he said.
That's why the Awlaki killing generated so much attention, and why the legal precedent it set is so troubling. In August 2010, the ACLU and Center for Constitutional Rights filed a lawsuit on behalf of Awlaki's father Nasser al-Awlaki, attempting to stop the Obama administration from carrying out the assassination. That suit was dismissed, as was a subsequent one filed after Awlaki's death.
Awlaki was born in New Mexico, and at the age of seven moved with his family to Yemen while his father went to graduate school. He returned to the US to attend college at Colorado State, later making a name for himself as a talented young imam in Denver and San Diego. He shot to national prominence in the wake of 9/11, including being interviewed by the Washington Post as a source who could explain Islam to a US audience. He had been described as a translator between Yemen and the US.
Accounts vary of when Awlaki began to develop from a mainstream preacher to a more radical one, but the global war on terror carried out under the Bush administration, and then continued by Obama, clearly played a role in radicalizing his political and religious views. If the Obama administration was hoping to silence Awlaki by ordering his death, it could not have been more unsuccessful. In making him a martyr, the administration ensured his influence would grow. Most recently, a knife-wielding student at Ohio State mentioned Awlaki on a Facebook post just before his attack, and at least 30 other attackers have made similar reference to his sermons.
Central to the Obama administration's claim to have the legal authority to kill Awlaki was its assertion that he was not just a popular YouTube sensation calling for attacks on the US, but that he was directly responsible for carrying out operations -- including offering support in 2009 to Umar Farouk Abdulmutallab, the failed Christmas Day underwear bomber. When Awlaki went from propagandist to "operational," he became a legitimate target, according to the administration. The public evidence for Awlaki's operational role in al-Qaeda in the Arabian Peninsula relies largely on one of several confessions Abdulmutallab made in US custody. For Jaffer, that's inadequate. "There's a big difference between allegations, however compelling they may seem, and evidence that's tested in an adversarial process," he said.
It's still unclear exactly what Trump will do with the vast war-making powers he will inherit, but with his announcement that he has selected retired Marine Gen. James "Mad Dog" Mattis for secretary of defense, his top national security team is coming into focus. Though Mattis is well respected throughout the military, his nomination raises plenty of concerns. For one, he'll have to get a waiver from Congress, since the law requires a person to have been out of the service for seven years before becoming defense secretary, a provision designed to ensure civilian control of the military remains paramount.
For another, Mattis was pushed out of his role as head of US Central Command for his hawkish stance on Iran. And he has signaled strong support for continued indefinite detention of prisoners at Guantánamo Bay, a position likely to find a home in the new administration. Unsurprisingly, given his job history, Mattis has a penchant for killing, saying at one point, "It's a hell of a hoot. It's fun to shoot some people."
To his credit, Mattis has rejected some of Trump's proposals, including a ban on Muslims entering the US and a return to torture. The rest of Trump's cabinet, however, is stocked with unapologetic Islamophobes.
For the past eight years, critics of Obama's secret assassination programs and mass surveillance operations have made two critical points. The first is that even if you trust Obama, these kinds of broad authorities invite abuse, mistakes and errors, even if those calling the shots are operating in good faith. But the second point, now made painfully relevant, is that someday you might not trust the people calling the shots. You might realize, instead, that they are terrifying. That day has come.
"The truth is, I worried about these powers even when President Obama was in charge," said Jaffer. "I think there's at least as much reason to worry, or more reason to worry, now."