Death by Remote: But is it Legal?

By William Fisher

As the Obama Administration continues to roll out justifications for its policy of targeting U.S. citizens and others thought to be attacking American troops, legal and national security experts are pondering a central question: What if there’s a mistake and the wrong person gets killed?

There are no do-overs. It is a death sentence.

That, in fact, has already happened. A Reuters cameraman was killed by a U.S. drone strike when the operator mistook his camera’s long-range lens for a rocket-propelled grenade.

Nevertheless, a top Obama counterterrorism official is defending the government's right to target U.S. citizens perceived as terror threats for capture or killing, citing the example of the renegade al-Qaida-linked cleric Anwar al-Awlaki.

al-Awlaki, 39, was born in Las Cruces, New Mexico, and is an Islamic lecturer who is a dual citizen of the U.S. and Yemen. He is a spiritual leader and former imam who has purportedly inspired Islamic terrorists. His sermons are said to have been attended by three of the 9/11 hijackers.

Michael Leiter, director of the National Counterterrorism Center, does not say whether al-Awlaki is on a U.S. targeting list, but a senior U.S. counterterrorism official has previously confirmed that the cleric is among terror targets sought to be captured or killed.

What does the law say about targeting and killing people?

Much of the discussion thus far has been about the Constitutionality of such killings. But, counter-intuitively, the Constitution is not the primary engine. It is largely the laws of war that are in play here.

Except for those who do not believe the U.S. is at war. Among these is Marjorie Cohn, immediate past president of the National Lawyers Guild, who asserts to IPS:

“Targeted or political assassinations—sometimes called extrajudicial executions—are carried out by order of, or with the acquiescence of, a government, outside any judicial framework. As a 1998 report from the United Nations Special Rapporteur noted, “extrajudicial executions can never be justified under any circumstances, not even in time of war. Willful killing is a grave breach of the Geneva Conventions, punishable as a war crime under the U.S. War Crimes Act.”

And “This is not a war,” she adds.

On the issue of killing citizens vs. non-citizens, Daphne Eviatar of Human Rights First (HRF) explains to IPS, “Whether the target is a citizen isn't so important, because he's targetable if he's an enemy belligerent or civilian who's directly participating in hostilities against the United States.”

She adds, “The problem with the government's drone program is that it hasn't provided the public with enough information to determine whether the government is complying with those legal requirements. The fact that someone is suspected of having ties to al Qaeda or even supporting al Qaeda does not make them a member of a foreign force fighting the United States, or someone directly participating in hostilities against the United States.”

“Until the U.S. starts providing information about not only who they're targeting but what evidence exists that this person is a legitimate target, then we can't know if what they're doing is legal,” she says.

Prof. Peter Shane of Ohio State University law school agrees. He tells IPS, “So long as the executive branch engages in reasonable processes to distinguish persons who are combatants from those who are not, I do not think that the use of force against them is mistaking his camera with its long-range lens for a rocket-propelled grenade launch unconstitutional.”

“Whether any specific targeted killing is or is not a good idea, of course, is a completely different question,” he says.

Scott Horton, a constitutional lawyer and contributing editor at Harper's Magazine, tells IPS, “There are two ways the government can justify the extrajudicial killing of an American citizen: one is when the person is in the act of a crime that threatens the lives of others, or serious injury to them, and no other means exists to stop him; the other is in the context of a war.”

“The Obama Administration appears to think that the second case is applicable with respect to Al-Awlaki, but if they have evidence to prove it, they certainly haven't advanced it to the public,” he says.

But even if they have such evidence, he adds, “they haven't explained why they don't simply have him arrested and brought back to stand charges based on the crimes they believe he has committed, which appear to include terrorist activities and perhaps treason. They obviously need to explain why that approach won't work before they go dropping bombs in circumstances that might kill large numbers of innocent civilians in addition to killing Al-Awlaki,“ Horton tells IPS.

Col. Morris Davis, the Defense Department's former chief prosecutor for terrorism cases who argued on behalf of a terrorism suspect that the military justice system has been corrupted by politics and inappropriate influence from senior Pentagon officials, tells IPS:

“The 5th Amendment says U.S. citizens can’t be ‘deprived of life, liberty, or property without due process of law.’ If the Constitution prohibits the government from taking your house without giving you a hearing and the opportunity to defend yourself it seems rather ironic that they might take your life with even less formality and less process.”

Prof. Francis Boyle of the University of Illinois shares serious reservations about how the government is conducting its targeting program.

He tells IPS, “What is being proposed here with respect to al-Awlaki and other United States citizens on the CIA's now publicly admitted ‘hit list’ is murder, assassination, extrajudicial execution, a grave violation of their right to life and human rights law, and of the Fifth Amendment to the United States Constitution."

Glenn Greenwald, constitutional lawyer and contributor to Salon.com, is similarly troubled by the targeting policy. He asks: “Could the individuals who trust the U.S. Government to essentially convict people of Terrorism and impose a death penalty through imperial decree (i.e., without any trials or judicial review, and based solely on the unchecked say-so of the Executive Branch) please identify themselves, and particularly explain the basis for that trust in light of this disgraceful and error-plagued record?”

Greenwald concludes: “We really are talking about a President who believes he has the right to send the CIA to murder American citizens based purely on allegations and suspicions of wrongdoing.”

Bruce Fein, a conservative legal expert who served in the Department of Justice during the Reagan Administration, proffers another idea.

He tells IPS, “Congress should enact a companion law to FISA (the Foreign Intelligence Surveillance Act.) The President should be required to obtain a judicial warrant based on probable cause to believe the suspected American is currently actively involved in seeking to kill United States citizens. The warrant should authorize capture of the American suspect for trial in the U.S., or, a targeted killing if capture is infeasible or would raise a grave risk of death or serious bodily injury to the U.S. authorities pursuing the capture.”