By William Fisher
Civil liberties advocates and legal authorities struck back today at what they describe as the “deliberate targeted killing of American citizens far away from any active hostilities, as long as the executive branch determines unilaterally that they meet a secret definition of who the enemy is."
In an admission that took the intelligence community and its critics by surprise, Director of National Intelligence Dennis Blair acknowledged in a congressional hearing Wednesday that the U.S. may, with executive approval, deliberately target and kill U.S. citizens who are suspected of being involved in terrorism.
The American Civil Liberties Union is among those who expressed serious concern about the lack of public information about the policy and the potential for abuse of unchecked executive power.
Attorney George Brent Mickum, who has defended a number of Guantanamo Bay detainees, told IPS, "I guess my sense is that it's just more fear mongering. They kill somebody and don't need to offer any justification. We have killed thousands of innocent civilians while attempting to target alleged operatives. And let us not forget how frequently our intelligence has been wrong about alleged operatives.”
He added, “My clients Bisher al Rawi, Jamil el-Banna, Martin Mubanga, abu Zubaydah, and Shaker Aamer all are alleged to have been operatives based on intel. In every case that intel was incorrect. I don't have any expectation that our intel with respect to alleged American operatives is likely to be any better."
Another Constitutional scholar, Professor Francis A. Boyle of the University of Illinois Law School, told IPS, “This extrajudicial execution of human beings constitutes a grave violation of international human rights law and, under certain circumstances, can also constitute a war crime under the Four Geneva Conventions of 1949. In addition, the extrajudicial execution of U.S. citizens by the United States government also violates the Fifth Amendment to the United States Constitution mandating that no person "be deprived of life, liberty, or property, without due process of law."
He said, “The U.S. Government has now established a ‘death list’ for U.S. citizens abroad akin to those established by Latin American dictatorships during their so-called ‘dirty wars’. The Bush Administration reduced the United States of America to a Banana Republic waging a "dirty war" around the world in gross violation of international law, human rights law, and the laws of war.”
The human rights advocacy community was equally forceful in its pushback. Daphne Eviatar, an attorney with Human Rights First, told IPS, “The short answer is that combatants can be targeted and civilians cannot under international law. Their citizenship isn't relevant. But just being a ‘suspected terrorist’ doesn't necessarily mean they're a combatant.”
She added, “The key question, and where there may be serious disagreement, is whether the person targeted is ‘directly participating in hostilities’. If not, and they're targeted, it's a war crime.”
And Chip Pitts, president of the Bill of Rights Defense Committee, said told IPS, “As with its embrace of the Bush approach to indefinite detention, the Obama administration’s even greater reliance on targeted extra-judicial killing (including of US citizens) is a tragic legal, moral, and practical mistake.”
“Even for those who accept the legitimacy of the death penalty, this further undermines the rule of law that is our best weapon in the fight against true terrorists, while completely subverting due process and constitutional rights of US citizens (including but not limited to the Fourth Amendment right to be ‘secure in their persons’ and the Fifth Amendment right not to be ‘deprived of life . . . without due process of law’)” he said.
He added, “The US government and judiciary has historically and rightly condemned such acts – sometimes explicitly as acts of terrorism -- when conducted by governments ranging from Israel to Iran, Chile, Cuba, and Libya; it is even more damnable when perpetuated by the US government itself today. This is another attempt to sidestep constitutional and human rights (as well as the usual laws of war as to target and proportionate means) by blurring those questions in the fog of the so-called ‘global war on terror.’ Citizens should protest and Congress should act to condemn such actions.”
Ben Wizner, staff attorney with the ACLU National Security Project, said,
"It is alarming to hear that the Obama administration is asserting that the president can authorize the assassination of Americans abroad, even if they are far from any battlefield and may have never taken up arms against the U.S., but have only been deemed to constitute an unspecified 'threat.'
Testifying before the House of Representatives Intelligence Committee, Blair said, "We take direct action against terrorists in the intelligence community." He said US counter-terrorism officials may try to kill American citizens embroiled in extremist groups overseas with "specific permission" from higher up.
In response to questions from the panel's top Republican, Representative Pete Hoekstra of Michigan, Blair said, if "we think that direct action will involve killing an American, we get specific permission to do that."
Blair's remarks followed a Washington Post article reporting that US President Barack Obama had embraced predecessor George W. Bush's policy of authorizing the killing of US citizens involved in terrorist activities overseas.
The Post reported that "After the Sept. 11, 2001, attacks, (President George W.) Bush gave the CIA, and later the military, authority to kill U.S. citizens abroad if strong evidence existed that an American was involved in organizing or carrying out terrorist actions against the United States or U.S. interests, military and intelligence officials said. The evidence has to meet a certain, defined threshold. The person, for example, has to pose 'a continuing and imminent threat’ to U.S. persons and interests.”
The Obama administration appears to have adopted exactly the same policy as its predecessor.
The Post, citing anonymous US officials, said the Central Intelligence Agency (CIA) and Joint Special Operations Command have three Americans on their lists of specific people targeted for killing or capture.
Blair said he was offering such unusually detailed information in public because "I just don't want other Americans who are watching to think that we are careless."
Blair didn't specifically articulate the standards he used, saying only that "We don't target people for free speech. We target them for taking action that threatens Americans."
Hoekstra cited an incident in 2001 in which Peru's air force shot down a plane carrying US missionaries, killing a woman and her seven-month-old daughter, after the aircraft was misidentified as a drug-smuggler.
"We were careless and we were reckless," Blair replied. "I want to make sure that this committee does everything that it can and within its power that it does not allow the community to be reckless and careless again."
The Washington Post story, by Pulitzer Prize-winner Dana Priest, revealed that, “In November 2002, a CIA missile strike killed six al-Qaeda operatives driving through the desert. The target was Abu Ali al-Harithi, organizer of the 2000 attack on the USS Cole. Killed with him was a U.S. citizen, Kamal Derwish, who the CIA knew was in the car.”
The article says, “Word that the CIA had purposefully killed Derwish drew attention to the unconventional nature of the new conflict and to the secret legal deliberations over whether killing a U.S. citizen was legal and ethical.”