Debate Continues on Targeted Killings of U.S. Citizens
The debate continues on the legality of the targeted killing of Anwar al-Awlaki. The White House Counsel opinion supporting the practice apparently is still classified as no one has published a copy. But State Department legal advisor Harold Koh explained it pretty clearly in March, 2010:
What I can say is that it is the considered view of this Administration—and it has certainly been my experience during my time as Legal Adviser—that U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war.
....As recent events have shown, al-Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al-Qaeda leaders who are planning attacks.
What about the criteria? Koh said: [More...]
[W]hether a particular individual will be targeted in a particular location will depend upon considerations specific to each case, including those related to the imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat the target poses. In particular, this Administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles, including:
First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack; and
Second, the principle of proportionality, which prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.
In U.S. operations against al-Qaeda and its associated forces-- including lethal operations conducted with the use of unmanned aerial vehicles-- great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.
Koh went on to dispute four arguments against targeted killings.
- "First, some have suggested that the very act of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law....Indeed, targeting particular individuals serves to narrow the focus when force is employed and to avoid broader harm to civilians and civilian objects. "
- On drones: "But the rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict-- such as pilotless aircraft or so-called smart bombs-- so long as they are employed in conformity with applicable laws of war. "
- Why they are not extrajudicial killings: "[A] state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meetings. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law.
- Why they aren't assassinations: "[U]nder domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”
Koh concluded with "This Administration is committed to ensuring that the targeting practices that I have described are lawful."
Koh also talked about how many different legal advisors are involved in the process of providing advise. He mentioned:
"White House Lawyers (WHCounsel/NSC Legal Counsel/USTR General Counsel); DOD Lawyers (OGC, Jt Staff, CoComs, Services, JAGs); DOJ Lawyers (OLC, OSG, Litigating Divisions-Civ., Crim, OIL, NSD); IC Lawyers (DNI, CIA); DHS Lawyers.
Just last week, Obama's choices for Assistant Attorney General for the Office of Legal Counsel, Virginnia Seitz, and Assistant Attorney General for National Security, Lisa Monaco, were sworn in.
Ron Paul today:
Awlaki was a U.S. citizen. Under our Constitution, American citizens, even those living abroad, must be charged with a crime before being sentenced. As President, I would have arrested Awlaki, brought him to the U.S., tried him and pushed for the stiffest punishment allowed by law. Treason has historically been judged to be the worst of crimes, deserving of the harshest sentencing. But what I would not do as President is what Obama has done and continues to do in spectacular fashion: circumvent the rule of law.
The ACLU and Center for Constitutional Rights argued in its unsuccessful lawsuit challenging the practice and seeking documents on Obama's policy on behalf of al-Awlaki's father:
[ the]policy of targeted killings violates treaty and customary international law by authorizing, outside of armed conflict, the killing of individuals . . . without judicial process in circumstances in which they do not present concrete, specific, and imminent threats to life or physical safety, and where there are means other than lethal force that could reasonably be employed to neutralize any such threat
The lawsuit asked the court to rule that targeted killings of an American citizen outside of an armed conflict could only be ordered as a last resort to address an imminent threat to life or physical safety. It also asked the court to order the government to disclose the legal standard it uses to place U.S. citizens on government kill lists.
The Center for Constitutional Rights said:
While the government can legitimately use lethal force against civilians in certain circumstances outside of a judicial process, the authority contemplated by senior Obama administration officials is far broader than what the Constitution and international law allow. Under international human rights law, lethal force may be used in peacetime only when there is an imminent threat of deadly attack and when lethal force is a last resort. A program in which names are added to a list though a secret bureaucratic process and remain there for months at a time plainly goes beyond the use of lethal force as a last resort to address imminent threats, and accordingly goes beyond what the Constitution and international law permit.
Moreover, targeting individuals for killing who are suspected of crimes but have not been convicted – without oversight, due process or disclosed standards for being placed on the kill list – also poses the risk that the government will erroneously target the wrong people. Since 9/11, the U.S. government has detained thousands men as terrorists, only for courts or the government itself to discover later that the evidence was wrong or unreliable and release them.
[T]he really problematic bottom line... is that the Central Intelligence Agency is running a program that is killing significant numbers of people and there is absolutely no accountability in terms of the relevant international laws.”
For more on this see:
- Due Process and Targeted Killing of
Terrorists which argues:
The executive has a due-process obligation to develop fair, rational procedures for its use of targeted killing no matter whom it might be targeting anywhere in the world. To implement this duty, the executive should, following the lead of the Supreme Court of Israel (among others), require an independent, intra-executive investigation of any targeted killing by the CIA. Such investigations should be as public as is reasonably consonant with national security. Even in a war-on-terror, due process demands at least this level of accountability for the power to kill suspected terrorists.
The Guardian today has an obituary for Anwar al-Awlaki.
Also a good read: Andrew Cohen in The Atlantic: Where is the Judicial Branch on Targeted Killings, recapping Judge Bates decision in the ACLU lawsuit, which raised the issues but skirted deciding them.
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