NEW YORK - As the Barack
Obama administration continues to roll out
justifications for its policy of targeting U.S. citizens and
others thought to be attacking U.S. troops, legal and national
security experts are pondering a central question: What if
there's a mistake and the wrong person gets killed?
no do-overs. It is a death sentence.
That, in fact, has already happened. A Reuters cameraman was
killed by a U.S. drone strike when the operator mistook his
camera's long-range lens for a rocket-propelled grenade.
Nevertheless, a top Obama counter-terrorism official is
defending the government's right to target U.S. citizens
perceived as terror threats for capture or killing, citing
the example of the renegade al Qaeda-linked cleric Anwar al-
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.
Michael Leiter, director of the National Counter-terrorism
Center, does not say whether al-Awlaki is on a U.S. target
list, but a senior U.S. counter-terrorism 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.
Except for those who do not believe the U.S. is at war.
Among these is Marjorie Cohn, immediate past president of
the National Lawyers Guild, who tells IPS: "Targeted or
political assassinations - sometimes called extrajudicial
executions - are carried out by order of, or with the
acquiescence of, a government, outside any judicial
She cited a 1998 report from the United Nations Special
Rapporteur that noted, "extrajudicial executions can never
be justified under any circumstances, not even in time of
war. Willful killing is a grave breach of the Geneva
Conventions, punishable as a war crime under the U.S. War
And "This is not a war," she adds.
On the issue of killing citizens vs. non-citizens, 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
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.
Prof. Peter Shane of Ohio State University law school
agrees. He tells IPS, "So long as the executive branch
engages in reasonable processes to distinguish persons who
are combatants from those who are not, I do not think that
the use of force against them is ...unconstitutional."
"Whether any specific targeted killing is or is not a good
idea, of course, is a completely different question," he
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.
And 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 said.
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 fifth 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."
Prof. Francis Boyle of the University of Illinois shares
serious reservations about how the government is conducting
its targeting program.
He tells IPS, "What is being proposed here with respect to
al-Awlaki and other United States citizens on the CIA's now
publicly admitted 'hit list' is murder, assassination,
extrajudicial execution, a grave violation of their right to
life and human rights law, and of the Fifth Amendment to the
United States Constitution."
Glenn Greenwald, constitutional lawyer and contributor to
Salon.com, is similarly troubled by the targeting policy. He
asks: "Could the individuals who trust the U.S government to
essentially convict people of terrorism and impose a death
penalty through imperial decree - i.e., without any trials
or judicial review, and based solely on the unchecked say-so
of the Executive Branch - please identify themselves, and
particularly explain the basis for that trust in light of
this disgraceful and error-plagued record?"
Greenwald 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."
Bruce Fein, a conservative legal expert who served in the
Justice Department during the Ronald Reagan administration,
proffers another idea.
He tells IPS, "Congress should enact a companion law to FISA
(the Foreign Intelligence Surveillance Act.) The president
should be required to obtain a judicial warrant based on
probable cause to believe the suspected American is
currently actively involved in seeking to kill United States
"The warrant should authorize capture of the American
suspect for trial in the U.S., or, a targeted killing if
capture is infeasible or would raise a grave risk of death
or serious bodily injury to the U.S. authorities pursuing
the capture," he says.