“As tyrannical a claim as we’ve heard in the last decade.” --Glenn Greenwald.
“The government needs a FISA warrant to eavesdrop on my phone calls but it needs nothing at all to kill me.”
That’s the essence of the cri de Coeur bubbling up from a varied group of human rights advocacy groups, academics, and public service law firms, as they struggle to understand Obama’s incendiary ruling – a ruling thus far made only by the Executive Branch of government, and not yet overseen by Congress or tested in any court. Even conservative lawyers are suggesting various tweaks and more major changes to legitimize the targeted killings.
To many of the policy’s critics, Obama’s actions reveal an insatiable desire to keep expanding the power of the Executive Branch of Government, and to do so in the opaque manner the President was so critical of when he was campaigning in 2007-8. Obama, it is suggested, also maintains a keen interest in keeping his “get tough on terrorists” image that rose to prominence with the killing of Osama bin Laden.
The very existence of the Obama Administration’s “kill list” -- individuals, including US citizens, who the government says have dedicated themselves to destroying Americans and US interests and who the government says may legally be killed by the government -- has rocked the legal world.
For shock value alone, the heart of the policy is found in the press announcement from the American Civil Liberties Union on the day of the killings. ACLU said:
“Today in Yemen, U.S. air strikes killed American citizen Anwar al-Aulaqi. al-Aulaqi has never been charged with a crime. Last year, the ACLU and Center for Constitutional Rights represented al-Aulaqi’s father in a lawsuit challenging the government’s asserted authority to carry out ‘targeted killings’ of U.S. citizens located far from any armed conflict zone. We argued that such killings violate the Constitution and international law, but the case was dismissed in federal court last December.”
Glenn Greenwald is typical. Here he is reacting to the first lawsuit brought against President Obama in 2010. This lawsuit was thrown out of court when the judge ruled that the plaintiff -- Anwar Awlaki’s father – had “no standing” to ask the court to issue an order enjoining the President from assassinating his son with no due process.
Greenwald wrote: “In court that day, the Obama DOJ raised numerous arguments, all of which were grounded in the claim that courts have no role whatsoever to play in interfering with the President’s decisions over who to assassinate as part of the ‘War on Terror’.”
Most viscerally horrifying to him? The very idea that the President claims the right not only to order Americans killed with no due process, but to do so in total secrecy beyond the reach of the courts, is as tyrannical a claim as we’ve heard in the last decade,” he charged.
The ACLU was devastated to contemplate that ruling as the end of their case. So a new case was filed, this time a partnership between the ACLU and the Center for Constitutional Rights (CCR). "This suit is an effort to enforce the Constitution's most fundamental guarantee, the guarantee of due process," said Jamil Jaffer, deputy legal director of the ACLU, on a conference call with reporters. "Ten years ago extrajudicial killing by the United States was exceptional. Now it's routine."
The lawsuit contends that the United States government violated the constitutional rights of the three men by killing them without court review outside of an active war zone.
The Obama administration has contended that it has the authority to target suspected members of Al Qaeda outside the conflict in Afghanistan and Pakistan, particularly if a given individual poses what it calls an "imminent threat."
But the ACLU-CCR lawyers believe their chances for getting a hearing are better this time than from the first case brought. This is because their clients, in losing their loved ones, suffered a concrete injury that can't be denied, and because of the more frank public acknowledgements by administration officials of the targeted killing program's existence. The latter, the lawyers argue, will make it more difficult for the government to contend the matter is a state secret.
"What they would be saying is, that they have the authority not just to kill American citizens who are deemed to be enemies of the state, and not just that they have the authority to kill citizens without explaining why they've done it, but even that they have the authority to kill citizens without even acknowledging their role in it," Jaffer said. "If the previous administration had proposed a policy of that kind, it's inconceivable that we would have accepted it."
Hina Shamsi of the ACLU told Prism, “The case turns on the killing now having been carried out -- there is no question that there is standing now. This lawsuit also raises different issues and claims as a result”.
Glenn Greenwald said the current case saw the Obama DOJ raising numerous arguments, all of which were grounded in the claim that courts have no role whatsoever to play in interfering with the President’s decisions over whom to assassinate as part of the ‘War on Terror.’
He continued: “Along with several others, I focused on the DOJ’s invocation of the “state secret” privilege because that was most viscerally horrifying: the very idea that the President claims the right not only to order Americans killed with no due process, but to do so in total secrecy beyond the reach of the courts, as tyrannical a claim as we’ve heard in the last decade.”
Along with several others, Greenwald writes, “I focused on the DOJ’s invocation of the “state secret” privilege because that was most viscerally horrifying: “The very idea that the President claims the right not only to order Americans killed with no due courts, as tyrannical a claim as we’ve heard in the last decade.”
This was precisely what Obama critics found so utterly grotesque. The Obama Administration would use the ‘State Secrets’ privilege to deny the court any details of the targeted killing operation. As ACLU lawyer Ben Wizner pointed out, it would be the first time a president – any president – had used the privilege to protect and conceal its own policies.
Wizner suggests that the al-Aulaqi case represents a new chapter in Obama-era state secrets invocation. He told Prism, “This is the first time that I am aware of that the [Obama] administration has invoked state secrets in defense of its own policies.”
The policies Wizner refers to are the administration’s asserted authority to use lethal force away from the battlefield — including against US civilians who have not been charged with any crime.
It is this claim – plus some peripheral claims concerning collateral damages – that is giving apoplexy to human rights defenders. Word from the White House is that the Obama Administration will define as “collateral damage” any military-age males found in the immediate area of the drone attack. These could be shoppers, families on their way to the clinic, kids going to school, just about anything, so long as they were close enough to the action to be killed because of it.
Other advocates were equally incensed. Marjorie Cohn, a professor at the Thomas Jefferson Law School, told Prism, “Drone attacks violate international law. A targeted killing is defined as the “intentional, premeditated, and deliberate use of lethal force. against a specific individual who is not in the physical custody of the perpetrator. Drone strikes are also counterproductive. They breed increased resentment against the United States and lead to the recruitment of more terrorists.”
Amnesty USA came down hard on the Administration. In a special report, it wrote, “The picture slowly emerging gives grounds to conclude that US policies and practices are unlawful, violating the fundamental human right not to be arbitrarily deprived of one's life.”
Another advocacy group, Human Rights First, predicted that “the Obama Administration’s policy on targeted killings will not be seen as legitimate until the Administration makes clear which groups it believes we’re at war with and how it defines who is a legitimate target for killing as part of the U.S. war strategy,” said Human Rights First’s Daphne Eviatar.
The 2001 Authorization for the Use of Military Force allowed the U.S. military to wage war against “those nations, organizations, or persons” who the president determined “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”
“Osama bin Laden is dead and al Qaeda has been decimated and driven from Afghanistan. If the United States is expanding the list of targetable groups and individuals beyond those who were responsible for the 9/11 attacks, it needs to make that clear, and to provide a justification for why such attacks are lawful,” said Eviatar. “So far it has failed to do that. Today, the Attorney General has the opportunity to do just that.”
Elisa Massimino, CEO of Human Rights Watch, called on Obama to immediately clarify that “international law does not permit the targeting of any member of a terrorist group with which we claim to be at war and does not permit the targeting of individuals merely because they are seen to be associating with members of a terrorist group”
The “mechanics” of the drone strikes are still emerging and the Obama administration appears to be on a high-powered vendetta against the very whisteblowers the president pledged to protect. Anonymous sources speculate that “American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.”
“There is no public record of the operations or decisions of the panel, which is a subset of the White House's National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.”
“The panel was behind the decision to add Awlaki, a U.S.-born militant preacher with alleged al Qaeda connections, to the target list.”
There have also been some voices of approval as well as condemnation. One of them belongs to John Brennan, Obama’s chief of counter intelligence. He said:
“Yes, in full accordance with the law — and in order to prevent terrorist attacks on the United States and to save American lives — the United States government conducts targeted strikes against specific Al Qaeda terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones,” Brennan said before the Woodrow Wilson International Center for Scholars.
“The use of armed drones to strike at suspected militants in places like Pakistan and Yemen has grown dramatically under the Obama administration, and the emergence of the new technology — which has sharply reduced the cost and risk of warfare to its operators, making it easier to engage in sporadic combat in far-flung regions — has led to growing concerns both about civilian casualties and about a future in which other countries also acquire drones,” he said.
The United States government has been reluctant to talk openly about its use of drones, apparently in part because foreign governments that granted permission for strikes did so on the condition that the deals would remain secret.
Defending drone strikes as “legal, ethical, and wise,” Brennan said the president had directed officials to be more open about how they “carefully, deliberately and responsibly” decide to kill terrorism suspects — including what he described as “the rigorous standards and process of review to which we hold ourselves today when considering and authorizing strikes against a specific member of Al Qaeda outside the ‘hot’ battlefield of Afghanistan.”
Brennan also said the administration preferred capturing such suspects alive — usually by telling a foreign government where to arrest them — and would authorize a strike only if that was not feasible.
The killing of civilians by drones has fueled anti-American sentiment, especially in Pakistan. The number of such deaths — especially in remote regions where it is difficult for neutral observers to investigate — has been hotly disputed. American officials have described such deaths as rare, while critics have said there are far more than the government acknowledges.
Brennan said American citizens who join Al Qaeda may also be targeted — after extra internal review, but he did not mention the killing of at least three Americans in drone strikes in Yemen last year, including Anwar Al-Awlaki, a radical cleric.
The Obama administration is fighting to avoid disclosing information related to the targeted killing operations under the Freedom of Information Act, including FOIA lawsuits filed by The New York Times.
A number of counterterrorism professionals and academics have proffered limited approval of the kill list policy. Writing in the journal of the American Bar Association, Amos Guiora, an Israeli-American professor of law at The S. J. Quinney College of Law at the University of Utah, and an expert on drone attacks, declares, “While I believe the Al-Awlaki killing lawful, I am deeply troubled by the broad rationale articulated by the Obama Administration. Yes, the Al-Awlaki killing reflects aggressive self-defense coupled with a respect for the obligation to minimize collateral damage. However, the Administration failed to articulate exactly how, beyond mere speech, Al-Awlaki was connected to terrorist activity. The mere ‘likelihood’ of membership in a terrorist organization is highly problematic.”
Comments like these can be seen as constructive efforts to make the targeted kill program respectable in the eyes of the law – a goal that remains murky and confused. With a very long way to go.
And it is difficult to forget that in the course of research for this article, the phrase heard most often was:
“If they want to intercept my phone calls or my emails, they need to get an order from the FISA court. If they just want to kill me, they don’t need to get any orders from anybody.”
Isn’t there just plain something wrong with that construct?