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Debating Whether It Is Legal to Kill US Citizens Abroad



A policy speech given by Attorney General Eric Holder on Monday asserted the Executive Branch’s supposed legal authority to kill US citizens abroad without charge or trial if they are deemed to pose an “imminent threat” and be “senior operators” of al-Qaeda or a group loosely affiliated to al-Qaeda. The speech has sparked a backlash, especially since it argued that US citizens have a right under the Constitution to due process but not judicial process. Since there is a review board that makes a decision on whether to order the killing of individuals believed to be a threat, the argument is that this is a process and so, if a citizen is killed, it is okay because that citizen would have been given his or her due.

Al Jazeera English‘s “Inside Story” recorded a discussion with Jameel Jaffer, director of the American Civil Liberties Union, PJ Crowley, former State Department spokesperson and Morris Davis, former chief prosecutor at Guantanamo Bay between 2005 and 2007.

Here are a few points about what is said in this important segment.

(1) This legal argument is a foundation for the government sanctioning of murder. Davis appropriately and directly characterizes what the Obama Administration is doing:

I think what we are sanctioning here is murder. We’re sending drones overseas. The president has no authority in Yemen. I mean, the president’s authority extends to the US its territories and its possessions. But to authorise a civilian agency, the CIA, to go to Yemen with drones, fire a missile and kill American citizens is just breathtaking, I think, to a lot of us.

(2) The Obama Administration is rewriting the definition of due process much like the Bush Administration tried to redefine torture. As Jaffer says in the segment, there is an “important difference between allegations and evidence.” And, he adds, “Due process is the distinction between mere allegations and evidence.” The Administration wants us all to believe the courts have “no role to play.” They should not be involved in litigating kill lists, determining the sufficiency of evidence, etc. And, there can be no “due process” if you are just making decisions based on allegations.

(3) There is a sheer amount of cowardice and secrecy involved in the operations of the US government’s targeted killing programs. It already, before legal justifications for the program are fully understood and agreed upon, operates with a level of impunity.

The killing of Samir Khan, who was believed to be a propagandist, and Anwar al-Awlaki’s son, who was sixteen years-old and not suspected of anything “nefarious,” has not been owned up to by the Obama Administration. It will not publicly admit a CIA drone strike killed these people.

Two US citizens were killed and Jaffer is correct. It is a “sad thing when a US administration is killing its own citizens” and refuses to acknowledge it. And, even Crowley, who is mostly supportive of the legal authority being asserted, agrees that the death of these two US citizen raise “very difficult questions.”

And, again, this is all shrouded in secrecy. The Obama Administration does not want any more details to be known and that is why it will not comply with Freedom of Information Act requests for “execution memos” containing the legal justification for the targeted killing of US citizens abroad.

(4) It is not necessarily clear that this authority would not ever be asserted in the United States. Crowley says, when responding to the fact that FBI director Robert Mueller appeared to be unsure of whether he could order the assassination of an American here at home, “I would absolutely think not.” His answer comes with a tone of shock that anyone would consider this could ever be used here. But, Crowley has a lot of trust for the Obama Administration so the shock is not surprising.

With the Federal Aviation Agency (FAA) opening up US airspace to more drone use and with more and more law enforcement agencies using their own drones, how long is it, really, before we are debating whether it is okay to take out a “homegrown terrorist” if they pose an “imminent threat”?

That “ticking time bomb scenario” that Bush Administration officials liked to talk about is a powerful tool of fear and propaganda. And, that “scenario” could easily move a population to go from accepting that US citizens suspected of terror can be killed abroad to US citizens suspected of terror can be killed here.

A paramilitary squad could be called in to eliminate a target, even if there is a civilian system for trying terrorists that allows the government to give terrorists the death penalty. Politicians would have no problem building political support for such an encroachment on civil liberties. Even more importantly, opposition would be impotent in the face of the expansion of executive power because, as Davis says in the segment, the “lack of leadership on the part of the Obama Administration” has allowed the other side to “carry the narrative that these guys are the worst of the worst and whatever means are necessary to keep us safe are legitimate.”

(5) It is not clear Al-Awlaki was an “operative” or even a “senior operator” in al Qaeda. Crowley states this as clear fact, but the way policymakers characterized him until he was assassinated evolved.

Micah Zenko of the Council on Foreign Relations made this clear in October 2011:

…U.S. officials claimed that Awlaki had a much more “operational” role in AQAP after his death, than they had before. In the past two years, Awlaki had been described as “inspirational,” “charismatic,” an “effective communicator” who’s “internet presence magnifies the threat.” In May, FBI Direct Robert Mueller warned that Awlaki “has taken on a significance that he certainly did not have way back when.” Yet, most officials described him as not being intimately involved in operations, such as Leon Panetta, who testified to the Senate in June that “because he’s very computer oriented and as a result of that, really does represent the potential to try to urge others, particularly in this country, to conduct attacks here.”

After he was killed, the connections between Awlaki and terrorist plots became more specific and vivid. White House spokesperson, Jay Carney, said Awlaki was “a principal leader in al Qaeda in the Arabian Peninsula, the most operational affiliate.” A senior White House officialsaid he was “very operational, every day he was plotting, he had very unique skills.” Finally, a State Department spokesperson claimed that Awlaki was “the leader of external operations for al-Qaida in the Arabian Peninsula,” and “played a significant operational role” in two attempted terrorist attacks against U.S. civilian airliners…

It is way more possible that US citizens who are not senior operators of al Qaeda are killed than people trusting of the Obama Administration are willing to concede.

Americans know what they know about Al-Awlaki because of what they are told. Davis properly calls attention to the fact that the Bush Administration told us the “worst of the worst” were at Guantanamo Bay. That was wrong.

(5) Just because a country gives the US permission to kill people in their country doesn’t mean it is legal. Crowley says, in the context of Yemen, the Obama Administration obtained permission from the Yemeni government to launch operations and kill terror suspects in the country.

Davis sharply rebukes this argument:

You can’t approve murder if you start from the premise that killing another human being is murder unless there’s some legal justification. And, combatant immunity doesn’t apply cause the CIA are not combatants. Self-defense doesn’t apply because there’s no immediate threat of death or bodily harm. It’s murder. And, you can’t even with the Yemeni permission say it’s okay to come and murder.

The remark by Crowley also takes on a farcical edge, too, as he cites a cable released by WikiLeaks to make his argument. This again shows the duplicity of people, who will cite information published by WikiLeaks because it is convenient yet simultaneously castigate the organization for its operations and supposed threat to security and humanity. After all, it is not likely he’s had a come-to-Jesus moment and realized WikiLeaks isn’t so bad for the US government and the world after all.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."