Attorneys critical of AG Holder's justification for targeted killings of Americans
In a major policy speech at the Northwestern University Law School, attorney general Eric Holder explained, for the first time, the U.S. justification for putting Americans on a list of those who can be killed if their capture is not possible.
In April 2010, Anwar al-Awlaki was put on the American kill or capture list.
His certainly wasn't the first name to go on the list, but it is believed to be the first time an American was targeted for possible killing. On Sept. 30, 2011, he was killed by a CIA drone strike. Awlaki was believed to be partly responsible for planning the attempted Christmas Day bombing(http://en.wikipedia.org/wiki/Northwest_Airlines_Flight_253) as well as for bringing al-Qaeda's message to an English-language audience, often via YouTube and other online tools.
Until this week, no legal theory for the targeted killing of U.S. citizens had been given. But, on Monday, Attorney General Eric Holder outlined the United States’ legal position to a group of faculty and students at the Northwestern University School of Law. Holder argued, in part, that the U.S. Constitution’s definition of due process defends the use of lethal force, even without the written consent of the president.
"An operation using lethal force in a foreign country targeted against a U.S. citizen, who is a senior operational leader of al-Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful," Holder said.
He said that such an action is absolutely not assassination — a word often used to describe the kill list.
Mary Ellen O'Connell, a professor of international law at the University of Notre Dame, said the justification is reminiscent of the word games that were played when discussing "harsh interrogation" — which some people simply referred to as torture.
"It is correct that on a traditional battlefield in actual armed conflict, if soldiers are trying to target a particular leader, they know who that person is — a commander on the battlefield — that would be lawful," O'Connell said. "But what the attorney general is talking about, going after named individuals who are not in a battlefield, who are not involved in armed conflict, that is assassination and that is unlawful."
But Holder argues that because the War on Terror is not a standard war, like World War I or World War II, the rules are different. The battlefield, he argues, are different.
Karen Greenberg, the director of the Center on National Security at Fordham Law School, said that's not his main point though — nor the main argument of those who oppose it.
"The big argument here is how consistent this is with what we've seen since the beginning of the War on Terror, and how the rules can change based on what the government wants to do, and then by decree they do it," Greenberg said. "Yes, it's because in part it's what they're calling an asymmetric war, and therefore can't use just what conventional warfare requires."
Holder said in order for an American to go on the so-called kill list, the U.S. government must determine the individual poses an imminent threat of violent attack against America. The capture of the individual must not be feasible and the operation should be conducted within the principles of the law of war — in other words it must be done in a way that minimizes civilian and collateral casualties.
Greenberg said the issues behind this criteria include how do you determine what is an imminent threat, how do you judge that capture wouldn't be feasible, and how does the government square that "due process" — a Constitutional guarantee — does not equate to judicial process.
Holder argued that a review by the Executive Branch can meet the threshold for due process spelled out in the U.S. Constitution.
"That is an extraordinary thing, from my point of view, to have said," Greenberg argued. "For many who work in this field, due process is associated with whether or not you're going to be charged, whether or not you're going to be brought to trial, whether or not you're going to be detained even under the laws of war. That's the real issue here."
O'Connell said the big concerns in this discussion are just exactly where the limits are. For example, could this same justification be used to launch a strike on an American on U.S. soil.
"The President has, by fiat, determined where the battlefield is," O'Connell said. "He can do that any time. Under international law, the battlefield is where there's actual armed conflict, hostilities, going on. That's not true of all the world. That's not true in places with weak government. The only place where the United States is currently at war, with the right to carry out this type of killing ... is in Afghanistan."
O'Connell said Americans should be concerned that this justification could be used to allow targeted killings practically anywhere. She said it's "disturbing" that the president, a legal scholar, and the attorney general, a distinguished attorney, would torture a basic tenet of American law, criminal, judicial, due process, in allowing this policy to go forward.
-----------------------------------------------
"The Takeaway" is a national morning news program, delivering the news and analysis you need to catch up, start your day, and prepare for what's ahead. The show is a co-production of WNYC and PRI, in editorial collaboration with the BBC, The New York Times Radio, and WGBH Radio Boston.
JOIN PRI COMMUNITIES:
They already are, we (the world) just don't know it. Apart from the targeting of individuals (US citizens or not), the US governments defense of many of it's multi nationals who give support to corrupt regimes around the world probably kills millions every year. Let's not forget the US trained Osama Bin Laden.
1. If an American born terrorist wants due process, let him come home and turn himself in.
2. Someone actively engaged in recruiting and training terrorists has created their own battlefield, and should be handled accordingly.
3. What are the limits on such action? Common sense! We have the police systems in place in the US to take a suspect in custody, Britain, France, and most developed nations would do the same. Yemen does not and likely would not even if they did (think Pakistan hiding Bin Ladin). So our three options are do nothing, declare war as Greenberg suggests, or perform a quick strike. There really is only one common sense option, and that is the one taken.
The Pentagon estimates that Al Qaeda is something like 200 to 2,000 people worldwide. That's it. We have this $700 billion military budget and our phones tapped and people like you saying that a "little" suspension of the Constitution is OK because "we're at war" and it's all over this very small group of people who have all along said that they were going to try to kill us because they didn't want us occupying their countries with US troops and supporting local dictators with US money and weapons.
What's scary about Awlaki is that until the US decided to kill him, the government told us he was a PR guy - he was the guy who wrote the magazine and press releases and gave sermons and recorded incindiary speeches. Then when they decide to assassinate him, they say, "He was in on planning attacks to kill Americans." But we never saw any evidence of this.
Remember AG Ashcroft? He made a big press conference in Russia that the FBI had just caught Jose Padilla who was an Al Qaeda operative who was just about to set off a nuclear "dirty bomb" in the United States and then two years later, the same Justice Department says that the actual plan was to rent an apartment and leave the gas stove on until the apartment filled up with gas and caused an explosion and fire.
Wow that is a huge difference. How can anyone believe what these people say when they have these huge swings like that. One day it's "Awlaki was planning to kill Americans" and you're thinking, when? How? And then later maybe they change it to, "Awlaki was IN THE PROCESS of writing an incindiary Op-Ed piece for the Cairo Morning Post."
The problem with an Executive with this much power is that you have to take their word for it why they decided to kill someone because they won't show you the evidence - it's classified.
Americans need to be a little less afraid of the "terrorists." Yes, there is a risk. Yes, it would suck to die from having some sweaty, bearded, irritating dude blow himself up standing next to you and your family. But you can't be such a sissy to deconstruct the whole society and the rule of law over this.
2,996 human beings died in the 9/11 terrorist attacks. But more than 500,000 Americans have died in car accidents since then. You are 167 times more likely to die in a car crash than a terrorist attack.
Yes, terrorism is a problem. Yes, we do require some national security and yes it's super irritating that the Southern border of the United States has more holes in it than a colander. But the answer is not suspending the rule of law. It's not invading Iraq and probably not invading Afghanistan either. I sincerely believe that if US troops weren't on Arab soil that there would be no attacks and there would have been no 9/11.
When the Russians were in Afghanistan, the Mujahideen engaged in "terror" attacks against Russian civilians and now Russia is having problems with Chechnya. Chechens are attacking Russian civilians because Russia is occupying Chechnya.
Americans always say that the "terrorists" attack us because they are jealous of our freedom and strip malls and movie theaters. Are the Chechens jealous of all of the Russian freedoms and how well Russians live?
These problems will continue until Americans become more knowledgeable about their own governance. If people support policies like this in America, it may become impossible to reverse this trend because anyone who is even a little successful at rousing public interest will be quickly "disappeared."
Post your comment