We Don’t Torture People Anymore. We Just Kill Them.

Note: I formerly served in the national security arena as a prosecutor with the military commissions and as a former Assistant U.S. Attorney. Because of that, I wish to make clear the views in this article are my own and not the views of any governmental organization or entity.

Noa Yachot has written an outstanding article about torture entitled, Out of the Darkness: How two psychologists teamed up with the CIA to devise a torture program and experiment on human beings.” She placed it under the topic headings of “Human Rights,” “Torture,” and “CIA.” She did not place it under “National Security.” Since being published yesterday, it has been recommended nearly 200 times as of this writing.

It’s the story of Suleiman Abdullah, a Tanzanian national, who was allegedly abducted in 2003 by CIA and Kenyan agents in Somalia, rendered around the world in and out of CIA and military custody, tortured, and ultimately detained for over five years without charge before being released in 2008. To put it lightly, it is a very ugly story. From reading this piece one might get the impression things like torture and detaining people indefinitely without charging them with any crime — which are a denial of something called Due Process — were limited to the years 2001–2009 when the Bush administration were in office. But that’s simply not accurate.

I do not write this to make arguments about whether what was done to detainees was torture or whether we should instead refer to it as Enhanced Interrogation Techniques (EITs), or whether these methods are effective or not in getting a suspect to give up intelligence information, or whether we as a nation that seeks to hold the moral high ground ought to be in the business of using these methods. But I do think it is an important point that if one is going to debate these issues, they ought to also be debated within the larger and deeper context of our national security and not just limited to the areas Ms. Yachot has attempted to channel the discussion. Because once one brings this discussion into the realm of the national security arena, critics of practices used by the previous administration are forced to confront some questions that have to make them uncomfortable. And that is the point of my observations: the critics of rendition, indefinite detention, and torture are being hypocritical if they also do not criticize in the same discussion the use of drone attacks to kill people without Due Process.

To carry this point forward, what is noticeably absent in Ms. Yachot’s piece is any mention of the fact that had Mr. Abdullah popped up on our government’s radar at some point after January, 2009 — when the Obama administration took office — he would very likely have been killed in a drone strike by now instead of being captured and detained. In an ironic way then, he is alive to tell his story today because he was captured and held in the days before we just started killing people with drones without giving them any Due Process whatsoever. This point isn’t meant to make anyone feel any better about his treatment and five-year detention, but it must be mentioned to place my points into clearer perspective.

Let us start off with this basic premise. The Fifth Amendment to the Constitution states:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The operative fact and language here is the government may not deprive anyone of “life, liberty, or property, without due process of law.” This very phrase in the Fifth Amendment has been routinely used by critics of the prior administration’s detention program — a program interestingly enough continued by the current administration — to argue that detaining people indefinitely without bringing charges or putting them on trial is a denial of their Fifth Amendment right against deprivation of their liberty (freedom). But these same critics are noticeably silent now when it comes to depriving people of their lives by killing them with drones without Due Process.

To explain to non-lawyers how the Fifth Amendment operates as a check and bar to the federal government or a state’s ability to deprive a person of their life, let us take the example of the state charging a defendant with a capital crime and seeking the death penalty. Supreme Court jurisprudence over the years has distilled why and how the federal government or a state can execute a condemned prisoner down to these basic steps: (1) Notice: The defendant must be put on adequate notice of what he is being charged with and that the state will seek the death penalty if he is convicted; (2) Defense Counsel: a defendant has the right to present a defense and be represented by qualified defense counsel; and (3) Trial, conviction, and sentence by jury: the government must prove its case with evidence beyond a reasonable doubt to a jury comprised of no less than 12 people, who must not only vote unanimously to find the defendant guilty, but who then must also vote unanimously to sentence the defendant to death. There are other Constitutional provisions that support these specific rights, but in the end they all add up to satisfying the Due Process Clause in the Fifth Amendment; if the government satisfies all of these Constitutional requirements, the government can deprive the defendant of his life and execute him at the end of the process.

But none of these Constitutional requirements are satisfied before we drop a drone strike on someone. In fact, reports say that since January 20, 2009, at least 2,464 people have now been killed by US drone strikes outside the country’s declared war zones. Of the total killed since then, at least 314 have been civilians, while the number of confirmed strikes under the current administration stood at 456 as of February, 2015. This graphic shockingly illustrates the rapid acceleration of drone strikes in Pakistan alone after January, 2009.

According to media sources, a Justice Department memo concludes that the U.S. government can even order the killing of American citizens if they are believed to be “senior operational leaders” of al-Qaida or “an associated force” — even if there is no intelligence indicating they are engaged in an active plot to attack the U.S. This memo, a copy of which was obtained by NBC News, provides details about the legal reasoning behind the dramatically increased use of drone strikes against suspects abroad, including those aimed at American citizens, such as the September, 2011, strike in Yemen that killed alleged al-Qaida operatives Anwar al-Awlaki and Samir Khan. Both were U.S. citizens who had never been indicted by the U.S. government nor charged with any crimes.

In a separate talk at the Northwestern University Law School, former Attorney General Eric Holder specifically endorsed the constitutionality of targeted killings of Americans, saying they could be justified if government officials determine the target poses “an imminent threat of violent attack.” How does that compare to rendering and detaining and interrogating non-American citizens captured and suspected of being affiliated with terrorist organizations? It would seem to go far beyond what was being done by our government previously. But nobody wants to talk about it.

Why is it okay to kill people with drone strikes on the scantest of data but not to render or detain them indefinitely? Why is torturing a suspect anathema but killing him not? Why the deafening silence from the same people who made a cottage industry of criticizing the previous administration’s use of rendition, detention, and torture and still screams for them to be tried for “war crimes?” The killing of civilians alone is a war crime under anyone’s definition of international law, but none of these same critics are calling for a war crimes prosecution of anyone for killing over 300 civilians with drone strikes.

Indeed, we never see or hear critics of the “torture apparatus” criticizing or complaining about the near 500 drone strikes carried out since January 20, 2009, which is almost ten times as many as were carried out by the previous administration. I wonder why that is. I am sure someone could try and make a legal argument that using enhanced interrogation techniques or torture on a suspected terrorist is illegal but killing them is legal. That argument should and will always fail. Even a five year old can comprehend this. That’s why I also wonder why Mr. Yachot’s organization, the ACLU, isn’t complaining about this issue like they complain about torture. I guess they have their own reasons.

When I worked as a prosecutor with the military commissions we used to sit around and discuss these questions with bemusement: We could never figure out why, on one hand, rendition, indefinite detention, and torture were morally and legally wrong if killing people with drone strikes wasn’t. The continued, loud, and at times trite rebuke of one administration’s practices when compared to the deafening silence by the same people regarding the current administration’s actions is telling. According to this apparent reasoning, we cannot detain or torture someone, but we can kill them with drones. That twisted reasoning can be used to justify releasing everyone presently detained in Guantanamo Bay’s detention facility, waiting until they are in an area like Yemen or Pakistan that acquiesces to this policy being carried out on their soil, and then dropping a drone on them. If that is the reasoning, I must humbly confess I find it absurd and it makes no sense to me. It seems to me it’s all good or it’s all bad. And if people agree that it’s all bad, then those who spend their time criticizing rendition, indefinite detention and torture need to start speaking out as vociferously about drone strikes as they do about everything else.

If we are really serious in this country about “the rule of law” and regaining our past status as a moral leader on the world stage, then we need stop picking and choosing which issues to complain about; we need to be consistent. Torture and killing without due process are both morally wrong and illegal. It’s time we started bringing the unchecked and unfettered use of drone killings into the same discussion people are having about torture.

[1] I use “we” here in the sense of the royal “we,” but not in the tradition of the divine right of kings; I use it here to describe all of us as citizens of a democratic republic who select and are responsible for electing those who hold public office.

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