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Published on Tuesday, August 31, 2010 by Inter Press Service

Secret 'Kill Lists' Fly in the Face of US and Int'l Law

by William Fisher

NEW YORK - Two of the nation's most influential human rights organisations have filed a lawsuit challenging the government's authority to carry out "targeted killings" of U.S. citizens located far from any armed conflict zone.

The American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) charge that the authority contemplated by the Obama administration is far broader than what the Constitution and international law allow.

The organisations claim that, "outside of armed conflict, both the Constitution and international law prohibit targeted killing except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury. An extrajudicial killing policy under which names are added to CIA and military 'kill lists' through a secret executive process and stay there for months at a time is plainly not limited to imminent threats."

The CCR and the ACLU were retained by Nasser al-Awlaki to bring the lawsuit in connection with the government's decision to authorise the targeted killing of his son, U.S. citizen Anwar al-Awlaki, whom the CIA and Defense Department have marked for death.

The complaint asks a court to rule that using lethal force far from any battlefield and without judicial process is illegal in all but the narrowest circumstances; and to prohibit the government from carrying out targeted killings except in compliance with these standards. It also asks the court to order the government to disclose the standards it uses to place U.S. citizens on government kill lists.

Anwar al-Awlaki, 39, was born in Las Cruces, New Mexico, and is an Islamic lecturer who is a dual citizen of the U.S. and Yemen. He is a spiritual leader and former imam who has purportedly inspired Islamic terrorists. His sermons are said to have been attended by three of the 9/11 hijackers.

Today's lawsuit was filed against the CIA, Defense Department and the president in the U.S. District Court for the District of Columbia.

According to the complaint, the government has not disclosed the standards it uses for authorising the premeditated and deliberate killing of U.S. citizens located far from any battlefield. The groups argue that the American people are entitled to know the standards being used for these life and death decisions.

"The United States cannot simply execute people, including its own citizens, anywhere in the world based on its own say-so," said Vince Warren, Executive Director of CCR. "The law prohibits the government from killing without trial or conviction other than in the face of an imminent threat that leaves no time for deliberation or due process. That the government adds people to kill lists after a bureaucratic process and leaves them on the lists for months at a time flies in the face of the Constitution and international law."

The groups charge that targeting individuals for execution who are suspected of terrorism but have not been convicted or even charged - without oversight, judicial process or disclosed standards for placement on kill lists - also poses the risk that the government will erroneously target the wrong people. In recent years, the U.S. government has detained many men as terrorists, only for courts or the government itself to discover later that the evidence was wrong or unreliable.

But a top Obama counterterrorism official is defending the government's right to target U.S. citizens perceived as terror threats for capture or killing, citing al-Awlaki as an example.

Michael Leiter, director of the National Counterterrorism Center, does not say whether al-Awlaki is on a U.S. targeting list, but a senior U.S. counterterrorism official has previously confirmed that the cleric is among terror targets sought to be captured or killed.

What does the law say about targeting and killing people?

Much of the discussion thus far has been about the Constitutionality of such killings. But, counter-intuitively, the Constitution is not the primary engine. It is largely the laws of war that are in play here.

Daphne Eviatar of Human Rights First (HRF) explains to IPS, "Whether the target is a citizen isn't so important, because he's targetable if he's an enemy belligerent or civilian who's directly participating in hostilities against the United States."

She adds, "The problem with the government's drone program is that it hasn't provided the public with enough information to determine whether the government is complying with those legal requirements. The fact that someone is suspected of having ties to al Qaeda or even supporting al Qaeda does not make them a member of a foreign force fighting the United States, or someone directly participating in hostilities against the United States."

"Until the U.S. starts providing information about not only who they're targeting but what evidence exists that this person is a legitimate target, then we can't know if what they're doing is legal," she says.

Scott Horton, a constitutional lawyer and contributing editor at 'Harper's Magazine', tells IPS, "There are two ways the government can justify the extrajudicial killing of an American citizen: one is when the person is in the act of a crime that threatens the lives of others, or serious injury to them, and no other means exists to stop him; the other is in the context of a war."

"The Obama Administration appears to think that the second case is applicable with respect to al-Awlaki, but if they have evidence to prove it, they certainly haven't advanced it to the public," he says.

But even if they have such evidence, he adds, "they haven't explained why they don't simply have him arrested and brought back to stand charges based on the crimes they believe he has committed, which appear to include terrorist activities and perhaps treason. They obviously need to explain why that approach won't work before they go dropping bombs in circumstances that might kill large numbers of innocent civilians in addition to killing al-Awlaki," Horton tells IPS.

Col. Morris Davis, the Defense Department's former chief prosecutor for terrorism cases who argued on behalf of a terrorism suspect that the military justice system has been corrupted by politics and inappropriate influence from senior Pentagon officials, tells IPS:

"The 5th Amendment says U.S. citizens can't be 'deprived of life, liberty, or property without due process of law.' If the Constitution prohibits the government from taking your house without giving you a hearing and the opportunity to defend yourself, it seems rather ironic that they might take your life with even less formality and less process."

Glenn Greenwald, constitutional lawyer and contributor to Salon.com, is similarly troubled by the targeting policy. He concludes: "We really are talking about a President who believes he has the right to send the CIA to murder American citizens based purely on allegations and suspicions of wrongdoing."

© 2010 IPS North America
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