Law experts, human rights groups, and advocates for civil liberties and international law are expressing outrage and concern just days after the Obama administration's chief prosecutor, Attorney General Eric Holder, publicly outlined and defended the US government's program to target and kill, without trial, individuals who it determines are affiliated with al Qaeda or deems a threat to national security.
Speaking to law students at Northwestern University on Monday, Holder said of the program:
Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack.
In that case, our government has the clear authority to defend the United States with lethal force.
Responding to the speech on Tuesday, legal scholar Jonathan Turley, wrote: "The choice of a law school was a curious place for discussion of authoritarian powers. Obama has replaced the constitutional protections afforded to citizens with a "trust me" pledge that Holder repeated."
In the days since, groups and individuals have responded with incredulous amazement. Though the program has been known about for some time, the public defense shocked many. Hina Shamsi, director of the American Civil Liberties Union’s National Security Project, commented on the speech:
“While the speech is a gesture towards additional transparency, it is ultimately a defense of the government’s chillingly broad claimed authority to conduct targeted killings of civilians, including American citizens, far from any battlefield without judicial review or public scrutiny. Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact. Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power.”
Inter Press Service reports today:
Although the Obama administration has stated publicly that its policy to assassinate U.S. citizens and foreign nationals allegedly involved with terrorist organizations does not fall outside of legal bounds, the actual decision-making process – how, when and under what circumstances – through which authority is granted remains classified.
The debate over targeted killings reignited in December 2011 when President Obama signed into law a bill that included language reaffirming the executive’s right “to use all necessary and appropriate force” in combating terrorism.
“We have had all of these arguments since 2010. They are inadequate,” Mary Ellen O’Connell, a professor at the University of Notre Dame who specialises in international dispute, told IPS.
“This is the global war on terror with a new name – the same global war on terror that President Obama dismissed on the campaign trail” in 2008, O’Connell added. “The U.S. has always had a policy against targeted killing for legal, moral and strategic reasons. None of these reasons have changed.”
Former litigator and civil rights blogger, Glenn Greenwald, was scathing in his critique at Salon.com. However, due to his extensive previous critique of the assassination program itself, he saved most of his ire for the Democrats who have so blithely followed the lead of the President and his administration on the issue:
The willingness of Democrats to embrace and defend this power is especially reprehensible because of how completely, glaringly and obviously at odds it is with everything they loudly claimed to believe during the Bush years. Recall two of the most significant “scandals” of the Bush War on Terror: his asserted power merely to eavesdrop on and detain accused Terrorists without judicial review of any kind. Remember all that? Progressives endlessly accused Bush of Assaulting Our Values and “shredding the Constitution” simply because Bush officials wanted to listen in on and detain suspected Terrorists — not kill them, just eavesdrop on and detain them — without first going to a court and proving they did anything wrong. Yet here is a Democratic administration asserting not merely the right to surveil or detain citizens without charges or judicial review, but to kill them without any of that: a far more extreme, permanent and irreversible act. Yet, with some righteous exceptions, the silence is deafening, or worse.
Turley echoes Greenwald's criticism of most Democrats and questions the limits of such vaguely worded executive authority:
The Obama administration continues to stonewall efforts to get it to acknowledge the existence of a memo authorizing the killing of Anwar al-Awlaki. Democrats previously demanded the "torture memos" of the Bush administration that revealed both poor legal analysis by Judge Jay Bybee and Professor John Yoo to justify torture. Now, however, Democrats are largely silent in the face of a president claiming the right to unilaterally kill citizens.
Holder became particularly cryptic in his assurance of caution in the use of this power, insisting that they will kill citizens only with "the consent of the nation involved or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States." What on earth does that mean?
Peter Van Buren, a former US diplomat, argued that Holder's defense of the program amounted to death of the Constitution's fifth amendment:
Like most of the Bill of Rights, the Fifth Amendment to the Constitution is beautiful in its brevity and clarity. When you are saying something true, pure, clean and right, you often do not need many words: "... nor be deprived of life, liberty, or property, without due process of law."
There are no footnotes in the Fifth Amendment, no caveats, no secret memos, no exceptions for war, terrorism, mass rape, creation of concentration camps, acts of genocide, child torture or any evil. Those things are unnecessary, because in the beauty of what Lincoln offered to his audience as "a government of the people, by the people, for the people," the government would be made up of us, the purpose of government was to serve us, and the government would be beholden to us. Such a government would be incapable of killing its own citizens without care and debate and open trial.
IPS' report focused particularly on the implication for international laws:
Holder also argued that certain legal principles “do not forbid the use of stealth or technologically advanced weapons”, such as covert operations and unmanned aerial vehicles, or drones, used to kill militants and foreign nationals suspected of posing an “imminent threat” to U.S. national security.
But the use of such methods has set controversial precedents that may violate international law, Laura Pitter, a specialist on U.S. counterterrorism policy for Human Rights Watch, told IPS.
“The reason it’s important to comply with international law is that there are standards that all countries use when applying lethal force so that countries like Russia and China, when they have these technologies, all apply the same standards,” Pitter explained.
While the speech provided the clearest insight to date regarding the administration’s legal framework for assassinations of U.S. citizens, Holder avoided detailing the implications of such a policy for foreign nationals.
“[The speech] deals with what would be justified for a U.S. citizen,” said Pitter. The fact that it didn’t address non-citizens leaves “little basis for determining whether the U.S. is meeting its legal obligations when it conducts these operations in regard to non-citizens,” she added.
“Each targeted killing that occurs takes place in different circumstances, and all of it is secret because it’s being conducted by the CIA…We’ve called for a long time for them to be conducted under military authority, which has greater transparency,” Pitter added.
And Charles Pierce, writing at Esquire, highlights the predictable (and troubling) path that expansive and unchecked executive authority has followed since the George W. Bush presidency.
The criteria for when a president can unilaterally decide to kill somebody is completely full of holes, regardless of what the government's pet lawyers say. And this...
"This is an indicator of our times," Holder said, "not a departure from our laws and our values."
...is a monumental pile of crap that should embarrass every Democrat who ever said an unkind word about John Yoo. This policy is a vast departure from our laws and an interplanetary probe away from our values. The president should not have this power because the Constitution, which was written by smarter people than, say, Benjamin Wittes, knew full and goddamn well why the president shouldn't have this power. If you give the president the power to kill without due process, or without demonstrable probable cause, he inevitably will do so. And, as a lot of us asked during the Bush years, if you give this power to President George Bush, will you also give it to President Hillary Clinton and, if you give this power to President Barack Obama, will you also give it to President Rick Santorum?