Trial before force for terrorists puts more American lives in danger.
The November 2009 Fort Hood shooting. The December 2009 attempted "underwear" bombing of Northwest Airlines Flight 253 over Detroit. The 2010 Times Square bomb that nearly killed hundreds. One man helped plan all three attacks — Anwar al-Awlaki. And if not for an authorized American counterterrorism operation in the desert of Yemen three years ago, that list might be longer and many Americans might be dead. And despite his sworn allegiance to Osama bin Laden and al-Qaeda, al-Awlaki was himself a U.S. citizen.
The recent release of a Department of Justice memorandum on the legality of the operation has sparked renewed debate on this subject.
Throughout its history, America has used force against anyone who waged war against it, even in the rare example when a U.S. citizen wages war against us. For example, Abraham Lincoln showed that American citizens who took up arms against the Union enjoyed no special immunity from the use of military force.
The legal reasoning behind a drone strike, even one that kills a U.S. citizen, is simple: Nations have the right to use force against legitimate enemy targets. In any war, when American soldiers are being shot at, whether it is by Germans in World War II, al-Qaeda terrorists, or Americans fighting with them, our soldiers do not stop, ask for passports, appoint a lawyer for their assailants, and hold a trial — even if one of the enemies is an American citizen who has taken up arms with the enemy. They simply return fire. Our soldiers also need not wait until an attack — they can open fire as soon as they spot the enemy. That's because there is no such thing as due process on the battlefield. To act otherwise would be to risk American lives.
Al-Awlaki, and any other U.S. citizen who takes up arms against his country, becomes a legitimate target in a war that has been authorized by Congress, acknowledged by the courts, and fought by two presidents of different parties.
Some in Washington have suggested that the government should give U.S. citizens who join al-Qaeda a trial before using force. In their view, the government should provide a full criminal trial, multiple rounds of appeals, and years of post-conviction review before removing someone who poses an imminent threat to the United States from the battlefield. How many attacks might al-Awlaki have plotted while lawyers in Washington argued over his fate in a trial that neither the U.S. Constitution nor the laws of war required? Enemy soldiers on the battlefield, no matter their citizenship, do not receive the protection of the Fifth Amendment or its guarantee of due process. That fact does not mean that a president can order drone strikes against anyone sitting in a café in New York as he sees fit. But for al-Qaeda leaders, who plot attacks from lawless corners of the world where host governments are unable or unwilling to take action, drone strikes are a legitimate option for protecting America.
For those of us who have been working for years to ensure the right policies are in place to defeat al-Qaeda terrorists, we know what requiring a trial for someone like al-Awlaki would mean. Surely al-Awlaki would ignore an indictment from a court in America, his sworn enemy. Under this construct, there would be two bad options for the U.S. The first option would be to clear the paperwork in Washington, and then dispatch American soldiers to Yemen to conduct a capture operation. The Yemini government was incapable of capturing al-Awlaki, so American men and women would have to be put at unreasonable risk to try to capture a terrorist in largely ungoverned areas of the Yemen desert. The second option would be to try al-Awlaki in abstentia in the U.S., wasting millions of dollars and taking years. And yet al-Awlaki would remain a real threat on the battlefield.
As a United States Army officer, FBI agent, and now as a member of Congress, I swore an oath to support and defend the Constitution. That is an oath I take very seriously, but constitutional due process protections do not and should not extend to al-Qaeda terrorists who plot to kill us.
Rep. Mike Rogers, R-Mich., is chairman of the House Permanent Select Committee on Intelligence.