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Obama’s Legacy: Institutionalizing Assassination Complex For Any President To Play Judge, Jury, And Executioner

As President Barack Obama’s administration comes closer to an end, the number of civilians killed by United States drone strikes in Pakistan, Somalia, and Yemen is at least 500, according to data compiled by the Bureau of Investigative Journalism.

Nearly all of the drone strikes were a part of the Obama administration’s institutionalization of a targeted assassination policy, where alleged terrorism suspects or individuals with ties to terrorism organizations were placed on kill lists for execution without charge or trial.

The Obama administration put out a report [PDF] on December 5 summarizing the “legal and policy frameworks” it relied upon in pursuing war. The second half of the report particularly focused on “targeting efforts” or targeted assassinations, which “comply with all applicable international obligations, domestic laws, and policies.”

Under the guise of transparency, the Obama administration’s report presents policies as constrained and restrained in order to guard against any concerns that it will leave behind an assassination complex that President Donald Trump will take advantage of and abuse. But the reality is the administration redefined a number of concepts and definitions so that extrajudicial killings can be justified. The administration also refuses to acknowledge and compensate civilians impacted by drone strikes.

If Drone Killing Is Legal, Why Hasn’t Obama Apologized To Innocent Victims Of Strikes?

The legal charity Reprieve represents a Yemeni man named Faisal bin Ali Jaber, who sued the Obama administration because innocent family members were killed in a drone strike in Yemen. It notes the Obama administration publicly insists its policy of drone killing is lawful, even as it fights in federal court to prevent legal accountability.

“If President Obama truly believes that drone killing should be lawful and transparent, why is his administration fighting tooth and nail to avoid the scrutiny of American judges in Jaber v. Obama? Why won’t the President simply come clean and apologize to Faisal bin Ali Jaber for the killing of his innocent family members?” Shelby Sullivan Bennis, Reprieve attorney for Faisal bin ali Jaber, asked.

During the summer, the Obama administration claimed 64-116 “non-combatants” were killed by CIA or United States military drone strikes. The number was preposterously low and effectively erased the deaths of more than 400 civilians, including children.

Documents provided to The Intercept by a whistleblower showed the U.S. military designates people killed in strikes as “enemies killed in action” or EKIA. As journalist Jeremy Scahill described, “Unless evidence posthumously emerged to prove the males killed were not terrorists or “unlawful enemy combatants,” EKIA remained their designation.”

The source of the documents called the process “insane,” but added, “We’ve made ourselves comfortable with that. The intelligence community, [Joint Special Operations Command], the CIA, and everybody that helps support and prop up these programs, they’re comfortable with that idea.” And the source also described official U.S. government statements minimizing the number of civilian casualties inflicted by drone strikes as “exaggerating at best, if not outright lies.”

When “non-combatants” or civilians are killed, U.S. intelligence agencies posthumously analyze whether those killed, who were not the specific target, happened to perform tasks beneficial to a terrorist organization. They go back and assess postings online and determine whether people, who were not senior operational leaders, shared ideology with the group. If any such evidence is found, they are treated as combatants.

Obama has repeatedly suggested, “Before lethal action may be taken, the United States must have ‘near certainty’ that the terrorist target is present and that non-combatants will not be injured or killed.” But throughout his presidency, “national security” operations clearly have flouted this standard.

In 2013, McClatchy Newspapers reported on leaked documents that showed, “Drone operators weren’t always certain who they were killing, despite the administration’s guarantees of the accuracy of the CIA’s targeting intelligence and its assertions that civilian casualties have been ‘exceedingly rare.'”

“Drones Are All Over My Brain”

The Obama administration employed what is known as signature strikes, which targeted individuals who engaged in patterns of behavior that made them suspect. The administration also launched so-called double tap strikes, where it would attack individuals who rescue wounded people or pick up the pieces of the dead.

A 2012 report, “Living Under Drones [PDF],” from the International Human Rights and Conflict Resolution Clinic of Stanford Law School and the Global Justice Clinic at the New York University School of Law highlighted this tactic.

“We and other people are so scared of drone attacks now that when there is a drone strike, for two or three hours nobody goes to [the location of the strike],” a father of four, who lost a leg in a drone strike, confessed. “We don’t know who [the victims] are, whether they are young or old, because we try to be safe.”

The same report detailed the impact on children, who have to live under the constant threat from drones. On March 17, 2011, Saeed Yayha was injured by “flying shrapnel.” He now has to rely on charity to survive and sees drones as demons or ghosts in the night:

“I can’t sleep at night because when the drones are there,” Yayha shared. “I hear them making that sound, that noise. The drones are all over my brain, I can’t sleep. When I hear the drones making that drone sound, I just turn on the light and sit there looking at the light.”

Clinical and forensic psychologist Dr. Peter Schaapveld conducted an assessment of the psychological impact of drone strikes. What he found most disturbing was how the strikes turn children into “hollowed-out shells.” They lose their “spark.”

According to Channel 4 News, Dr. Schaapveld met a young girl whose father said she “vomits every day, and also when she hears aircraft, or drones, or anything related.” She experienced recurring nightmares and dreamt of “dead people, planes and people running around scared.”

It made children not want to go to school. They no longer could form relationships with other children and make friends. As Kat Craig, the legal director at Reprieve concluded, this shows their use amounts to a “form of psychological torture and collective punishment.”

Not to mention, with attacks on wedding convoys and funerals, the strikes breed resentment toward the United States that fuels violent extremism.

In testimony at a congressional briefing on November 20, 2013, Entesar Qadhi, a Yemeni youth leader described what it was like in her village to fight al Qaida and drive members of the militant group out of her village.

“We were told that drones are used to target al Qaida and only al Qaida, but the reality is my village didn’t know al Qaida [until] after those drones” started hovering over our skies, Qadhi said. When her village and their tribes “enter into armed clashes” with al Qaida militants, the Yemeni government provided no support except for the drones.

“Drone strikes actually make al Qaida people more popular because of the fact that they are striking inside of our villages, which makes the presence of Qaida justified in our place,” she stated.” They’ll kick out al Qaida militants, but then those militants will return when drones hover over the village again.

This human example of the impact of Obama’s policy was reinforced in a story published by The Washington Post on May 29, 2012. It reported, “An escalating campaign of US drone strikes is stirring increasing sympathy for al-Qaida-linked militants and driving tribesmen to join a network linked to terrorist plots against the United States.”

Targets On Kill List Apparently Attacked Multiple Times, Leaving Hundreds Of Children Dead

The extent to which the Obama administration does not know who exactly it is killing is rather incredible. Reprieve analyzed [PDF] drone strike data in 2014 and found “targets” were reported killed multiple times in Pakistan. “Missed strikes on these men killed 874 people. They resulted in the deaths of 142 children.”

“Eighteen men in Yemen were reported killed or targeted multiple times. Missile strikes on these men killed 273 others and accounted for almost half of all confirmed civilian casualties and 100 percent of all recorded child deaths,” according to Reprieve’s analysis. “In targeting Ayman al Zawahiri, the CIA killed 76 children and 29 adults.”

“In the six attempts it took the US to kill Qari Hussain, a deputy commander of the Tehrik-e-Taliban Pakistan (TTP), 128 people were killed. including 13 children.” Also, “Baitullah Mehsud was directly targeted as many as seven times, during which 164 people were killed, including 11 children.”

“From 2004-2013, children suffered disproportionately in Pakistan. The pursuit of 14 targets killed 142 children. Only six of these children died in strikes that successfully killed their target (21 percent success rate).”

Despite the staggering evidence of civilian casualties, the Obama administration still expected the public to believe only 64-116 “non-combatants” were killed. It could not even bring itself to label those acknowledged few as civilians. They were “non-combatants,” not specifically targeted but, perhaps, they should never have been in the vicinity of “targets” the military or CIA “engaged.”

Abdulrahman al-Awlaki, a 16 year-old U.S. citizen, was killed in Yemen by the U.S. government in October 2011, just weeks after his father, Anwar, was targeted and assassinated. Press secretary Robert Gibbs said if Abdulrahman wanted to avoid death he should probably have had a “far more responsible father.”

“If they’re truly concerned about the well-being of their children, I don’t think becoming an al Qaida jihadist terrorist is the best way to go about doing your business,” Gibbs added.

Claiming The Authority To Kill U.S. Citizens Abroad

One can draw a parallel between Gibbs’s statement and how U.S. law enforcement has excused the killing of young black boys by blaming their parents for not being good role models. The Obama administration cited the fact that courts that have determined police, who use lethal force on suspects, may not be violating the U.S. Constitution.

“Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force,” the Obama administration noted. “If the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”

This is the legal rationale the Obama administration adopted to justify the killing of the radical Islamic preacher and propagandist, Anwar al-Awlaki. Anwar’s father attempted to bring a case in court in 2010 to challenge the Obama administration on whether it had the constitutional and legal right to assassinate his son.

The Center for Constitutional Rights and American Civil Liberties Union argued, “Outside of the context of armed conflict, the Constitution and international human rights treaties the U.S. has ratified prohibit the state from depriving persons of life without due process, except as a last resort to protect against an imminent threat of deadly harm.” Anwar al-Awlaki was targeted away from the battlefield in Afghanistan and his placement on a kill list “flew in the face of the plain meaning of the law’s imminence requirement.” However, a district court in Washington, D.C., dismissed the lawsuit.

Displacement of Clear Legal Standards With a Vaguely Defined License to Kill

It was this same year that Philip Alston, United Nations Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, authored a report that raised serious concerns before the Obama administration carried out the vast majority of its drone strikes. Alston argued in the fight against terrorism “too many criminal acts” are “re-characterized so as to justify addressing them within the framework of the law of armed conflict,” which is exactly what the Obama administration did.

“New technologies, and especially unarmed combat aerial vehicles or “drones,” have been added into this mix, by making it easier to kill targets, with fewer risks to the targeting state,” Alston wrote. “The result of this mix has been a highly problematic blurring and expansion of the boundaries of the applicable legal frameworks – human rights law, the laws of war, and the law applicable to the use of inter-state force. Even where the laws of war are clearly applicable, there has been a tendency to expand who may permissibly be targeted and under what conditions.”

Alston added, “Moreover, the states concerned have often failed to specify the legal justification for their policies, to disclose the safeguards in place to ensure that targeted killings are in fact legal and accurate, or to provide accountability mechanisms for violations. Most troublingly, they have refused to disclose who has been killed, for what reason, and with what collateral consequences. The result has been the displacement of clear legal standards with a vaguely defined license to kill, and the creation of a major accountability vacuum.”

Since the Obama administration’s report contends its drone killing policies comply with international law, it is also important to note the following from Alston:

Although the appeal of an armed conflict paradigm to address terrorism is obvious, so too is the significant potential for abuse. Internal unrest as a result of insurgency or other violence by non-state armed groups, and even terrorism, are common in many parts of the world. If states unilaterally extend the law of armed conflict to situations that are essentially matters of law enforcement that must, under international law, be dealt with under the framework of human rights, they are not only effectively declaring war against a particular group, but eviscerating key and necessary distinctions between international law frameworks that restricts states’ ability to kill arbitrarily.

It was not until 2012 that the Obama administration responded to pressure from civil liberties and human rights groups to show the public what its legal basis was for using lethal force against terrorism suspects overseas, including U.S. citizen Anwar al-Awlaki. But the administration declined to release documents. Officials instead feigned transparency by giving policy speeches, making offhand remarks during public interviews, and leaking details anonymously to news media. At the same time, the administration fought in federal courts and would neither confirm nor deny the existence of a CIA drone program that was well-known to exist.

Invoking Nixon’s Bombing of Cambodia To Justify Targeted Assassinations

The phrase “imminent threat” has been so redefined by the Obama administration that Justice Department officials argued in a “white paper” that “decision makers” cannot possibly know all the al Qaida plots planned at any given moment. They can never be confident no plots will occur. There may be small windows for action. So, the United States government never needs “clear evidence that a specific attack on US person and interests will take place in the immediate future” in order to carry out attacks on a target.

President Richard Nixon’s carpet bombing of Cambodia was cited in this “white paper” when the Justice Department asserted it found no “authority for the proposition that when one of the parties to an armed conflict plans and executes operations from a base in a new nation, an operation to engage the enemy in that location cannot be part of the original armed conflict, and thus subject to the laws of war governing that conflict, unless hostilities become sufficiently intense and protracted in the new location.”

In other words, a president can expand a war into any additional countries because Nixon customarily violated international law and bombed Cambodia while the U.S. was at war in Vietnam.

The Obama administration is well aware of the kind of power the executive branch has claimed by institutionalizing a system, where terrorism suspects are placed on kill lists. When Mitt Romney ran for president against Obama in 2012, the administration was worried about what Romney may do. Officials sought to develop a set of “rules” in the months prior to Election Day that would place some more constraints if a Republican were elected.

Now, Donald Trump will be president, and he will have a vast apparatus for carrying out targeted assassinations. He will be able to order the deaths of individuals in countries where it is known drone and airstrikes have taken place, as well as in countries, where U.S. drones have not been used to kill.

Trump will be judge, jury, and executioner, but it should not be all that much different from what Obama did as president. The only difference will be the person with the authority to sign off on who lives and who dies.

This is the second in a five-part series on the warfare and “national security” operations of the Obama administration. The first part examined the human cost of eight years of war under Obama. In the next part, the administration’s policies for capture and detention will be examined ahead of a Trump presidency.

Kevin Gosztola

Kevin Gosztola

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