The assassination of a U.S. citizen by the Central Intelligence Agency has rekindled the legal debate on whether the U.S. government can kill its own citizens without them being found guilty of or even charged with any crime but merely because the government considers them “threats.” It is a chilling, terrifying day when we assert that Barack Obama can now order the execution of anyone he chooses without judicial oversight of any kind.
And make no mistake: That is precisely what the “targeted killing” of the American-born al-Qaeda cleric Anwar al-Awlaki now means.
The U.S. government has not produced a shred of evidence that al-Awlaki had “gone operational,” as U.S. officials lamely put it. It’s all “top secret.” When you read the details of the 12 or so plots al-Awlaki was supposedly “involved” in, it turns out that most of the would-be perpetrators had read al-Awlaki’s writings, or were “inspired” by his sermons. I have no doubt that al-Awlaki was a bloody-minded Islamic fanatic. But this case means that the U.S. government is now asserting, as a matter of policy, that it may assassinate its own citizens for writing or saying things it disagrees with, so long as the government claims (but doesn’t even bother to prove) they are “threats.”
Of course, the government’s legal apologists — such as Kenneth Anderson, an international law scholar at American University’s Washington College of Law — claim that, under the laws of war, people such as al-Awlaki can be designated “military” targets even if they are not actually in uniform or on a battlefield. (The U.S. Justice Department supposedly “signed off” on the assassination, the same pliable Justice Department that, under the Bush Administration, insisted that water-boarding is not torture even though the U.S. government executed people after World War II for doing precisely that!)
But many constitutional scholars insist that such an elastic notion of military targeting is a slippery slope that will lead to tyranny.
“For two years since Awlaki has reportedly been added to a kill list, the administration has made a lot of statements to the press but has presented no evidence to a court,” said Ben Wizner, the National Security Project Litigation Director at the ACLU. “There’s a distinction between allegations and evidence that’s pretty critical here. Our argument isn’t that you need to go to a court just to make the claim that he is an imminent threat, but placing someone on a kill list for months or years seems fundamentally inconsistent with the legal definition of ‘imminent,’ and so there’s really no reason why a judicial role can’t happen here.”
University of Notre Dame international law expert Mary Ellen O’Connell, one of the world’s leading experts on targeted killing, agrees. “The United States is not involved in any armed conflict in Yemen, so to use military force to carry out these killings violates international law,” O’Connell says. “It is only during the intense fighting of an armed conflict that international law permits the taking of human life on a basis other than the immediate need to save life. In armed conflict, a privileged belligerent may use lethal force on the basis of ‘reasonable necessity.’ Aside from armed conflict, the relevant standard is ‘absolute necessity.’ International law and moral principle have been breached in a place where the United States should be demonstrating non-violence and support for peaceful means of transforming society.”
I am currently reading Erik Larson’s bestselling In the Garden of Beasts, about an American family’s first year (1933-34) in Nazi Berlin. One of the chilling aspects of the book is the way in which members of this family — U.S. Ambassador William Dodd, his wife Martha and his daughter Martha — excuse and justify the assorted barbarism and “targeted killings” of the Nazi regime as isolated incidents. The Dodd family is constantly looking on the bright side, trying to see the good in the Nazi movement. They take the word of top Nazi officials that, say, the beatings of Jews and foreigners are aberrations, not reflective of the government’s real policy.
The other chilling aspect of Larson’s book is how the professional killers in the Nazi movement took advantage of real terrorist incidents — such as setting of the Reichstag fire by Communist agents in 1933 — to justify its wholesale abandonment of human rights. (Governments always justify their “targeted killings” by appeals to national self-defense, or by the notion that such killings are necessary to protect the people from “terrorism.”)
The “targeted killing” of al-Awlaki and another American-born al-Qaeda blogger by the CIA also reveals the cowardice of the American judiciary. Last year, when news of the U.S. government’s assassination “hit list” became public, al-Awaki’s father, Nasser al-Awlaki, a former Yemeni official, filed suit in federal court in an attempt to prevent the CIA from murdering his son in cold blood, without trial.
Assisted by the American Civil Liberties Union (ACLU), the senior al-Awlaki sued Barack Obama and insisted the U.S. government could not take an American citizen’s life based on secret intelligence and without a trial. The father and the ACLU argued in federal court that killing the son amounted to “summary execution” without the due process of law guaranteed by the Constitution.
A sniveling jurist, U.S. District Court Judge John D. Bates, said Mr. Awlaki’s father, the plaintiff, had no standing to file the lawsuit on behalf of his son and that decisions about “targeted killings” in such circumstances were a “political question” for executive branch officials to make, not judges. In his 83-page opinion, Judge Bates in essence asserted that the federal government could kill whomever it deemed a terrorist threat and that such killings were outside the purview of any judicial review. As the New York Times put it:
Judge Bates acknowledged that the case raised “stark, and perplexing, questions” — including whether the president could “order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based the mere assertion that he is a dangerous member of a terrorist organization.”
But while the “legal and policy questions posed by this case are controversial and of great public interest,” he wrote, they would have to be resolved on another day and, probably, outside a courtroom.
(Note: Judge Bates routinely mentions the “difficult questions” government actions raise… before obediently doing precisely what the government wants. He did the same thing in the Valerie Plame case which he also dismissed.)
Barack Obama and all of his Republican opponents praised the “targeted killing” of Anwar al-Awlaki. Only Congressman Ron Paul had the courage to oppose such killing as unconstitutional and illegal:
I don’t think that’s a good way to deal with our problems,” Paul told reporters. “Al-Awlaki was born here; he is an American citizen. He was never tried or charged for any crimes. No one knows if he killed anybody. We know he might have been associated with the underwear bomber. But if the American people accept this blindly and casually that we now have an accepted practice of the president assassinating people who he thinks are bad guys, I think it’s sad.
“I think what would people have said about Timothy McVeigh? We didn’t assassinate him, who we were pretty certain that he had done it. Went and put through the courts then executed him. To start assassinating American citizens without charges, we should think very seriously about this.”
America has crossed a threshold. Most of the blame for this can be laid at the feet of President George W. Bush and his “chicken hawk” cronies, but Barack Obama proves that, on issues of military policy, the Democrats and Republicans are virtually indistinguishable. Ron Paul is virtually the only political voice standing up for human rights, non-violence and the U.S. Constitution.
“The targeted assassination program that started under President Bush and expanded under the Obama administration essentially grants the executive the power to kill any U.S. citizen deemed a threat, without any judicial oversight, or any of the rights afforded by our Constitution,” said Vince Warren, executive director of the Center for Constitutional Rights. “If we allow such gross overreaches of power to continue, we are setting the stage for increasing erosions of civil liberties and the rule of law,” he said.
Glenn Greenwald, the Salon.com blogger and constitutional lawyer, put the matter even more forcefully. Discussing the craven way supposedly anti-war Democrats have embraced the very same policies they once denounced in the Bush Administration, he, too, fears for America’s future: “If you are somebody that believes the President of the United States has the power to order your fellow citizens murdered, assassinated, killed without a shred of due process,” Greenwald said, “then you are really declaring yourself to be as pure of an authoritarian as it gets.”