Targeted, Due-Process-free Assasination

The fifth amendment reads in part: “No person shall… be deprived of life, liberty, or property, without due process of law.” This doesn’t apply only to citizens, but to all persons. Historically, this requirement has been waived in wartime on battlefields. Obama’s dubiously legal and escalating secret drone war has claimed many lives, but the government has alleged (wrongly, as it turns out) that they were all enemy combatants, and hence the laws of war have applied.

On 6 April 2010, the New York Times reported that “the Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen.” The target was a Muslim cleric, Anwar al-Awlaki, born in New Mexico but believed to be hiding in Yemen, who was influential for online advocacy for terrorism against the United States. The Obama Administration alleged they had evidence that he had actually crossed the line to actual engagement in terrorist activity, but have refused to explain their evidence or rationale or charge him with any crimes. What was publicly known hardly painted an airtight case that he was materially involved in any plots. What seems clear is that he made the list due to his vocal online advocacy of terrorism, having been cited as an influence for several would-be terrorists.

After at least one unsuccessful attempt to kill al-Awlaki, the United States succeeded in blowing up his convoy with an unmanned drone on 30 September 2011, killing both al-Awlaki and another US citizen born in Pakistan. This didn’t happen in the heat of battle; as the ACLU put it, it happened “far from any battlefield.” Accompanied by this event were all the jubilant high fives you’d expect over Keeping Us Safe, but still no charges or trial. Two weeks later, al-Awlaki’s teenaged son was also killed in another drone strike, prompting his family to speak out over the “unbelievable… nonsense” of the killings. Al-Awlaki’s father had tried to sue the government to enjoin the assassination order, but he was refused, the court citing the baffling need for al-Awlaki to sue on his own behalf.

The perennially outstanding Glenn Greenwald has written extensively about this case and what it means for executive power and civil liberties, even writing a gripping biography shortly before his death of the American’s transformation from a US university graduate in good standing with public institutions to the “Osama bin Laden of the internet”. In fact, Yemeni experts have expressed considerable doubt that al-Awlaki was “operationally involved” in terrorist activities, and a New York Times op-ed published before his death, entitled “A False Target in Yemen,” rattled off a list of key Al-Qaeda leadership positions he definitely didn’t fill and made that case that he wasn’t even a significant figurehead in the organization.

On 29 May 2012, the New York Times reported in a lengthy and detailed expose that President Obama “has placed himself at the helm of a top secret ‘nominations’ process to designate terrorists for kill or capture, of which the capture part has become largely theoretical.” It adds that “when he applies his lawyering skills to counterterrorism, it is usually to enable, not constrain, his ferocious campaign against Al Qaeda — even when it comes to killing an American cleric in Yemen, a decision that Mr. Obama told colleagues was ‘an easy one’.”

Among the shocking revelations contained in the article is this remarkable passage:

Mr. Obama embraced a disputed method for counting civilian casualties that… in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.

Counterterrorism officials insist this approach is one of simple logic: people in an area of known terrorist activity, or found with a top Qaeda operative, are probably up to no good….

This counting method may partly explain the official claims of extraordinarily low collateral deaths…

But in interviews, three former senior intelligence officials expressed disbelief that the number could be so low… “It bothers me when they say there were seven guys, so they must all be militants,” the official said. “They count the corpses and they’re not really sure who they are.”

The fifth amendment is very clearly a prohibition on the use of deadly force against any person without a court order. The Bush Administration cited terrorism as a justification to act outside of due process, and Obama has expanded that model by now targeting anonymous foreigners and US citizens for assassination far from any battlefield. His administration is using sweeping definitions and hand-waving generalizations to attempt to justify the collateral damage of his drone-enabled targeted assassination program that the President himself directly oversees without any transparency or oversight.

The fact that governments claim the right to execute their own citizens even after an opportunity to have a public, adversarial debate about the merits of each case is chilling; but asserting the power to do so in total secrecy without any due process and far from a clear and present danger like an active battleground is as illegal as it is beyond the pale.

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