by William O'Hara
On September 14th, 2009, a car carrying Saleh Ali Nabhan was destroyed in Somalia. Nabhan was wanted by the FBI for questioning regarding attacks against multiple targets in Kenya in 2002 and for his alleged involvement in the 1998 US Embassy bombing. He was said to be the “chief link between the main al-Qaeda organization and its East African allies.”
He died that day in a missile strike authorized by the Obama administration and delivered by Black Hawk helicopters.
According to the Washington Post, the administration was given three options regarding the strike: “They could obliterate his vehicle with an airstrike as he drove through southern Somalia. Or they could fire from helicopters that could land at the scene to confirm the kill. Or they could try to take him alive.” The second of the three options was chosen.
President Obama has long campaigned and now governed on the platform that due process and transparency are intrinsic American values. From initially supporting the civilian trial of the 9/11 mastermind, to the promised closing of Guantanamo Bay, the president has taken proactive and highly visible steps in an attempt to promote these values.
The juxtaposition of the White House’s actions on September 14th, 2009 and the general domestic policy propagated by the current administration highlights a significant gap between the two standards of due process in dealing with threats to America. While we read Miranda rights to those caught attempting to blow up American cities, we rely on military intelligence and executive discretion when forcibly ending the lives of similar threats operating outside the country, even when the opportunity for capture is possible. In the case of Nabhan, why was the third option – capturing Nabhan, interrogating him, then prosecuting him – not chosen? Ostensibly, in both the second and third options American lives were at risk by being on the ground in Somalia. More importantly, couldn’t US allies have benefited from the information gained through arrest and interrogation?
The irony is that the Obama administration’s domestic commitment to due process may in fact lead to both the premature deaths of foreign civilian targets, and a decrease in intelligence that might help allied forces. The most important causal factor involves the detainment or conviction of foreign citizens; in many cases, the military intelligence gathered against an al-Qaeda member may not hold up in an American court of law. With the administration’s emphasis on civilian trials, the prospect of convicting someone based on classified military intelligence is dubious. It is obviously much easier when the individual has been caught nearly red-handed by domestic law enforcement in New York City, as was recently the case. Furthermore, reluctance to detain potentially unprosecutable individuals outside the conventional civilian judicial system (in places such as Guantanamo Bay) leaves the administration is a difficult position.
In effect, they are forced to choose between two alternatives: (1) live capture, with the uncertain prospect of conviction in a domestic court, or (2), elimination of the target with no due process and limited oversight. The Obama administration’s continued reliance on drone strikes make it clear which option has been chosen.
After campaigning vehemently against the perceived injustices of the Bush administration, the White House now finds itself in a paradox of its own creation. Will this be Obama’s Guantanamo Bay? Who is to say that it is more “just” to kill these individuals (with no trial or defence) than it is to capture and hold them indefinitely in Cuba, where they at least had a façade of due process? The international community has already begun to grow concerned with continued use of drone strikes. It is only a matter of time before Americans will reject the innate hypocrisy of espousing due process domestically, while explicitly choosing to kill individuals overseas – all the while missing out on the opportunity that each strike represents to collect additional, potentially invaluable, intelligence.
But the White House has left itself little choice in the matter. To reinstate Guantanamo would be to admit that the previous administration was right. Domestic prosecution of foreign militants based on military intelligence would also expose civilian courts to undue pressure.
Instead, the Obama administration needs to recognize that while Bush was wrong, he was also right. Guantanamo Bay – while recognizing its many faults – was an alternative to the Obama administration’s drone strikes (that many now consider to be executions). The only feasible option for the current White House is to find a third way – one that is flexible enough to convict combatants using military intelligence as evidence, but rigorous enough to enact a reasonable amount of due process protections. Until such a judicial construct is established, President Obama runs the risk of subjecting himself to the same vitriol that President Bush faced during his second term, and that still permeates to a large extent today.
William O'Hara is an officer in the United States Navy and a law student at George Washington University. The opinions expressed herein are his alone and do not represent the official position of the Department of Defense or the United States Navy.