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

Published on
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."

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