Via NYT, White House Lays Out Case for Killing American Citizen without Trial

The Times reporting, like the AP story on February 10, has all the hallmarks of an intentionally leaked story in which White House officials spoke with reporters on condition of anonymity in exchange for access to information deemed suitable for public consumption.

Based on interviews with "American officials and outside terrorism experts," the Times reports:

Born in the United States, possibly in Texas, [al-Shami -- his real name is classified] moved with his family to the Middle East when he was a toddler. Obama administration officials declined requests to provide biographical information about Mr. Shami such as his real name and age -- saying that the information is classified -- or any specific information about where he was born or where he traveled after leaving the United States. But his nom de guerre has a familiar ring for jihadists: An operative of Al Qaeda named Abu Abdullah al-Shami escaped with three other people from the American military prison in Bagram, Afghanistan, in 2005 and was killed in a drone strike three years later.

He came to the attention of the American authorities in 2008, around the same time that another American, Bryant Neal Vinas, was getting Qaeda training in Pakistan, one former counterterrorism official recalled. The authorities worried at the time that a surge of people with terrorism training and Western passports might be coming to the United States. Mr. Vinas was later captured and brought back to the United States, where he pleaded guilty to terrorism charges.

The F.B.I. investigated Mr. Shami and determined that he had been born in the United States, but that he had left as a young child and had not maintained any ties to the country. In the years since then, Mr. Shami worked his way up the ranks of Al Qaeda's senior leadership in Pakistan, his ascent aided by his marriage to the daughter of a top Qaeda leader. Last year, he appears to have risen to become one of Al Qaeda's top planners for operations outside Pakistan, including plots against American troops in Afghanistan.

"We have clear and convincing evidence that he's involved in the production and distribution of I.E.D.'s," said one senior administration official, referring to improvised explosive devices, long the leading killer of American troops in Afghanistan.

Taken with the earlier AP story, observant readers might conclude that the administration is utilizing these mainstream outlets in order to lay out the case for the killing of al-Shami in public an effort to soften the possible outcry if such an operation is ultimately ordered or carried out.

The details of al-Shami and his alleged activities provided by the Times--which are really just the selected bits of information leaked by the "American officials"--paint a picture of a man involved in terrorist activities, operating on the battlefield made borderless by the U.S. declared 'global war on terror'--in short, an acceptable and justifiable target for a U.S. hellfire missile attached to the bottom of an unmanned drone. But advocates of international law and civil liberties say that the Obama administration's claims of such authority to target an individual for assassination must be challenged.

"Given the significance of the authority the administration is claiming, it's quite remarkable how little information it's disclosed," the ACLU's Jameel Jaffer told the Times. Human rights advocates and international jurors, of course, question the legality of the entire U.S. drone program that has resulted in the death of thousands of civilians and untold damage over the last two administrations. The case of al-Shami, however--like the killing of other American citizens abroad--raises specific questions about constitutional protections that reside within the broader moral and legal questions of the wider global war on terror and the clandestine use of drones over multiple countries.

As pointed out by Peter Van Buren, a former State Department employee and foreign policy expert who raised serious questions about the reported "deliberations" and justifications about extrajudicial killing coming from the White House and Eric Holder's Department of Justice, there are no asterisks next to the U.S. Constitution's Fifth Amendment which guarantees all citizens the right due process. Van Buren wrote:

There are [...] no footnotes in the Fifth Amendment, no caveats, no secret memos, no exceptions for terrorism, mass rape, child torture, or any other horror the U.S. has confronted in its 238 years of existence. Such addendums to the Fifth were unnecessary, because in the beautiful preciseness of Lincoln's phrasing at Gettysburg, ours is "a government of the people, by the people, for the people," one made up of us, beholden to us, and whose purpose is to serve us.

Such a government would be incapable of killing its own citizens without due care, debate, and open trial. Those actions would violate the sacred convent of trust between a people and their government in a democracy, the "consent of the governed," and delegitimize the government itself.

That last point is worth a closer look, because it makes clear what murder-by-decree really represents in post-Constitutional America. The phrase "consent of the governed" first appears in the Declaration of Independence, the document by which the United States declared itself no longer under the governance of the British king. The Declaration makes clear that a government's moral right to use state power is only justified and legal when derived from the people over which that power is exercised. Such consent is the opposite of the divine right of kings, the philosophy under which the British ruled colonial Americans. Its foundational principle was obedience to government and its edicts and decisions, even on issues of life and death, as a religious and moral obligation.

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