Can Obama Order You Killed?

On September 30, 2011, The New York Times reported that the C.I.A. had killed a fundamentalist iman named Anwar al-Awlaki in a drone strike over Yemen. Heralding the strike, President Obama called al-Awlaki “the leader of external operations for Al Qaeda in the Arabian Peninsula.” Al-Awlaki was allegedly involved in planning “Underwear Bomber” Umar Farouk Abdulmutallab’s failed attempt to blow up a plane to Detroit in 2009. Al-Awlaki had repeatedly called online for Muslims to kill Americans, leading Saudi television channel Al Arabiya to call him “the bin Laden of the Internet.” But Al-Awlaki was also an American citizen, since he was born in the U.S. Stripped of details, the story is this: President Obama ordered the death of an American citizen who had never been convicted of any crime.

Obama approved the killing of al-Awlaki in 2010, by placing al-Awlaki on a list of people targeted for killing. Al-Awlaki’s name was not the only name on the list. Abu Yahya al-Libi, supposedly Al Qaeda’s second in command, was killed in a similar drone strike in Pakistan earlier this week. His predecessor, Atiyah Abd al-Rahman, was killed in a missile strike in Pakistan last August. Al-Awlaki’s sixteen-year-old son Abdulrahman al-Awlaki—also an American citizen—was killed by drones in Yemen just two weeks after his father’s death, although it’s not clear that he was the target of the attack. In 2010, Dana Priest reported that there were other Americans on the list besides Anwar al-Awlaki.

As Jo Becker and Scott Shane recently reported, every week or so a large group of national security officials meet by secure video conference to nominate people for Obama’s “kill list.” The group’s nominations go to Obama, who personally signs off on every name. As Mark Hosenball has pointed out, no law grants authority to the group and no public record of its deliberations is kept. Congress, of course, approved the use of military force against Al Qaeda after the September 11 attacks. And military commanders make similar decisions to attack targets on the battlefield all the time.

The specific killing of al-Awlaki was originally justified in a secret legal memo written in 2010. Although political assassinations are banned under an executive order issued by President Ford, the memo argues that the order doesn’t apply to military operations in an armed conflict. Since al-Awlaki posed a threat to Americans, if it wasn't possible take him alive, it would be legal to target him. Not everyone else agrees. Before al-Awlaki’s death, his father sought an injunction in an American court to have al-Awlaki’s name removed from the kill list. But the suit was dismissed on the grounds that his father didn’t have standing to sue. “There's no question that the government has the authority to use lethal force against Americans who join the Taliban, say, or who join the insurgency in Iraq," the ACLU’s Jameel Jaffer said. "But the United States is not at war in Yemen, and the government doesn't have a blank check to kill terrorism suspects wherever they are in the world.”

Was al-Awlaki’s killing really justified by the threat he posed? Terrorism experts are divided on whether he really had an operational role. Big Think’s own resident expert Gregory Johnsen argued before al-Awlaki’s death that he was a minor player who posed little real threat and whose killing could backfire on the U.S. Others disagreed. Of course, the president presumably has access to better intelligence than we do. Ultimately we have to take the administration's word that al-Awlaki was dangerous.

But whether or not al-Awlaki was really dangerous, we should be very reluctant to concede to the President the power to order the deaths of American citizens solely on his own authority. As Glenn Greenwald reminds us, the Fifth Amendment says that no person shall be deprived of life "without due process of law.” The principle that the executive can’t detain or kill people solely on its own authority is arguably the foundational principle of modern legal systems. Without that guarantee of due process a president or king’s power is practically limitless. 

The memo justifying the killing of al-Awlaki argued that the internal deliberations of executive branch—in essence, having the president talk the issue over with his advisers—were sufficient due process. It's true, as Jack Goldsmith says, that what counts as “due process” is different in times of war. But this is hardly more due process than the royal abuse of power the authors of the Constitution sought to prevent. It’s dangerous in any case to extend battlefield logic to a vague, unending struggle against anyone who would do us harm like the “War on Terror.”

The reason to insist on real due process is not that you necessarily feel sympathy for al-Awlaki. It is that by the same logic that Obama ordered al-Awlaki killed, he could order any of us killed. In practice, of course, most of us needn't worry that we will be hit by drone strikes. But that doesn’t mean that no innocent people will be marked for death, nor that the power will never be abused. By most accounts Obama takes the decision to order someone’s death seriously. Nevertheless, any power we allow Obama is a power we give to all future presidents. “In the end,” as Amy Davidson says, “we are not really being asked to trust Obama, or his niceness, but the office of the Presidency.” After all, Richard Nixon was democratically elected too. Maybe you trust Obama—but would you have trusted Nixon?

Anwar al-Awlaki image from Muhammad ud-Deen

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Researchers hope the technology will further our understanding of the brain, but lawmakers may not be ready for the ethical challenges.

Still from John Stephenson's 1999 rendition of Animal Farm.
Surprising Science
  • Researchers at the Yale School of Medicine successfully restored some functions to pig brains that had been dead for hours.
  • They hope the technology will advance our understanding of the brain, potentially developing new treatments for debilitating diseases and disorders.
  • The research raises many ethical questions and puts to the test our current understanding of death.

The image of an undead brain coming back to live again is the stuff of science fiction. Not just any science fiction, specifically B-grade sci fi. What instantly springs to mind is the black-and-white horrors of films like Fiend Without a Face. Bad acting. Plastic monstrosities. Visible strings. And a spinal cord that, for some reason, is also a tentacle?

But like any good science fiction, it's only a matter of time before some manner of it seeps into our reality. This week's Nature published the findings of researchers who managed to restore function to pigs' brains that were clinically dead. At least, what we once thought of as dead.

What's dead may never die, it seems

The researchers did not hail from House Greyjoy — "What is dead may never die" — but came largely from the Yale School of Medicine. They connected 32 pig brains to a system called BrainEx. BrainEx is an artificial perfusion system — that is, a system that takes over the functions normally regulated by the organ. The pigs had been killed four hours earlier at a U.S. Department of Agriculture slaughterhouse; their brains completely removed from the skulls.

BrainEx pumped an experiment solution into the brain that essentially mimic blood flow. It brought oxygen and nutrients to the tissues, giving brain cells the resources to begin many normal functions. The cells began consuming and metabolizing sugars. The brains' immune systems kicked in. Neuron samples could carry an electrical signal. Some brain cells even responded to drugs.

The researchers have managed to keep some brains alive for up to 36 hours, and currently do not know if BrainEx can have sustained the brains longer. "It is conceivable we are just preventing the inevitable, and the brain won't be able to recover," said Nenad Sestan, Yale neuroscientist and the lead researcher.

As a control, other brains received either a fake solution or no solution at all. None revived brain activity and deteriorated as normal.

The researchers hope the technology can enhance our ability to study the brain and its cellular functions. One of the main avenues of such studies would be brain disorders and diseases. This could point the way to developing new of treatments for the likes of brain injuries, Alzheimer's, Huntington's, and neurodegenerative conditions.

"This is an extraordinary and very promising breakthrough for neuroscience. It immediately offers a much better model for studying the human brain, which is extraordinarily important, given the vast amount of human suffering from diseases of the mind [and] brain," Nita Farahany, the bioethicists at the Duke University School of Law who wrote the study's commentary, told National Geographic.

An ethical gray matter

Before anyone gets an Island of Dr. Moreau vibe, it's worth noting that the brains did not approach neural activity anywhere near consciousness.

The BrainEx solution contained chemicals that prevented neurons from firing. To be extra cautious, the researchers also monitored the brains for any such activity and were prepared to administer an anesthetic should they have seen signs of consciousness.

Even so, the research signals a massive debate to come regarding medical ethics and our definition of death.

Most countries define death, clinically speaking, as the irreversible loss of brain or circulatory function. This definition was already at odds with some folk- and value-centric understandings, but where do we go if it becomes possible to reverse clinical death with artificial perfusion?

"This is wild," Jonathan Moreno, a bioethicist at the University of Pennsylvania, told the New York Times. "If ever there was an issue that merited big public deliberation on the ethics of science and medicine, this is one."

One possible consequence involves organ donations. Some European countries require emergency responders to use a process that preserves organs when they cannot resuscitate a person. They continue to pump blood throughout the body, but use a "thoracic aortic occlusion balloon" to prevent that blood from reaching the brain.

The system is already controversial because it raises concerns about what caused the patient's death. But what happens when brain death becomes readily reversible? Stuart Younger, a bioethicist at Case Western Reserve University, told Nature that if BrainEx were to become widely available, it could shrink the pool of eligible donors.

"There's a potential conflict here between the interests of potential donors — who might not even be donors — and people who are waiting for organs," he said.

It will be a while before such experiments go anywhere near human subjects. A more immediate ethical question relates to how such experiments harm animal subjects.

Ethical review boards evaluate research protocols and can reject any that causes undue pain, suffering, or distress. Since dead animals feel no pain, suffer no trauma, they are typically approved as subjects. But how do such boards make a judgement regarding the suffering of a "cellularly active" brain? The distress of a partially alive brain?

The dilemma is unprecedented.

Setting new boundaries

Another science fiction story that comes to mind when discussing this story is, of course, Frankenstein. As Farahany told National Geographic: "It is definitely has [sic] a good science-fiction element to it, and it is restoring cellular function where we previously thought impossible. But to have Frankenstein, you need some degree of consciousness, some 'there' there. [The researchers] did not recover any form of consciousness in this study, and it is still unclear if we ever could. But we are one step closer to that possibility."

She's right. The researchers undertook their research for the betterment of humanity, and we may one day reap some unimaginable medical benefits from it. The ethical questions, however, remain as unsettling as the stories they remind us of.

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