Presidential Assassinations of US Citizens

The Washington Post's Dana Priest today reports
that "U.S. military teams and intelligence agencies are deeply involved
in secret joint operations with Yemeni troops who in the past six weeks
have killed scores of people." That's no surprise, of course, as Yemen
is now another predominantly Muslim country (along with Somalia and
Pakistan) in which our military is secretly involved to some unknown
degree in combat operations without any declaration of war, without any
public debate, and arguably (though not clearly) without
any Congressional authorization. The exact role played by the U.S. in
the late-December missile attacks in Yemen, which killed numerous
civilians, is still unknown.

But buried in Priest's
article is her revelation that American citizens are now being placed
on a secret "hit list" of people whom the President has personally
authorized to be killed:

After the Sept. 11 attacks, Bush gave the CIA, and later the military, authority to kill U.S. citizens abroad
if strong evidence existed that an American was involved in organizing
or carrying out terrorist actions against the United States or U.S.
interests, military and intelligence officials said. . . .

The Obama administration has adopted the same stance.
If a U.S. citizen joins al-Qaeda, "it doesn't really change anything
from the standpoint of whether we can target them," a senior
administration official said. "They are then part of the enemy."

Both
the CIA and the JSOC maintain lists of individuals, called "High Value
Targets" and "High Value Individuals," whom they seek to kill or
capture. The JSOC list includes three Americans, including [New
Mexico-born Islamic cleric Anwar] Aulaqi, whose name was added late
last year. As of several months ago, the CIA list included three U.S.
citizens, and an intelligence official said that Aulaqi's name has now
been added.

Indeed, Aulaqi was clearly one of the prime targets of the late-December missile strikes in Yemen, as anonymous officials excitedly announced -- falsely, as it turns out -- that he was killed in one of those strikes.

Just
think about this for a minute. Barack Obama, like George Bush before
him, has claimed the authority to order American citizens murdered
based solely on the unverified, uncharged, unchecked claim that they
are associated with Terrorism and pose "a continuing and imminent
threat to U.S. persons and interests." They're entitled to no charges,
no trial, no ability to contest the accusations. Amazingly, the Bush
administration's policy of merely imprisoning foreign nationals (along
with a couple of American citizens) without charges -- based solely on
the President's claim that they were Terrorists -- produced intense
controversy for years. That, one will recall, was a grave assault on
the Constitution. Shouldn't Obama's policy of ordering American
citizens assassinated without any due process or checks of any kind --
not imprisoned, but killed -- produce at least as much controversy?

Obviously,
if U.S. forces are fighting on an actual battlefield, then they (like
everyone else) have the right to kill combatants actively fighting
against them, including American citizens. That's just the essence of
war. That's why it's permissible to kill a combatant engaged on a real
battlefield in a war zone but not, say, torture them once they're
captured and helplessly detained. But combat is not what we're talking
about here. The people on this "hit list" are likely to be killed
while at home, sleeping in their bed, driving in a car with friends or
family, or engaged in a whole array of other activities. More
critically still, the Obama administration -- like the Bush
administration before it -- defines the "battlefield" as the entire world.
So the President claims the power to order U.S. citizens killed
anywhere in the world, while engaged even in the most benign activities
carried out far away from any actual battlefield, based solely on his
say-so and with no judicial oversight or other checks. That's quite a
power for an American President to claim for himself.

As
we well know from the last eight years, the authoritarians among us in
both parties will, by definition, reflexively justify this conduct by
insisting that the assassination targets are Terrorists and therefore
deserve death. What they actually mean, however, is that the U.S. Government has accused them of being Terrorists, which (except in the mind of an authoritarian) is not the same thing as being a Terrorist. Numerous Guantanamo detainees accused by the U.S. Government of being Terrorists have turned out to be completely innocent,
and the vast majority of federal judges who provided habeas review to
detainees have found an almost complete lack of evidence to justify the
accusations against them, and thus ordered them released. That
includes scores of detainees held while the U.S. Government insisted
that only the "Worst of the Worst" remained at the camp.

No
evidence should be required for rational people to avoid assuming that
Government accusations are inherently true, but for those do need it,
there is a mountain of evidence proving that. And in this case, Anwar Aulaqi -- who, despite his name and religion, is every bit as much of an American citizen as Scott Brown and his daughters are -- has a family who vigorously denies that he is a Terrorist and is "pleading" with the U.S. Government not to murder their American son:

His
anguish apparent, the father of Anwar al-Awlaki told CNN that his son
is not a member of al Qaeda and is not hiding out with terrorists in
southern Yemen.

"I am now afraid of what they will do with
my son, he's not Osama Bin Laden, they want to make something out of
him that he's not," said Dr. Nasser al-Awlaki, the father of
American-born Islamic cleric Anwar al-Awlaki. . . .

"I will
do my best to convince my son to do this (surrender), to come back but
they are not giving me time, they want to kill my son. How can the American government kill one of their own citizens? This is a legal issue that needs to be answered," he said.

"If they give me time I can have some contact with my son but the problem is they are not giving me time," he said.

Who
knows what the truth is here? That's why we have what are
called "trials" -- or at least some process -- before we assume that
government accusations are true and then mete out punishment
accordingly. As Marcy Wheeler notes,
the U.S. Government has not only repeatedly made false accusations of
Terrorism against foreign nationals in the past, but against U.S.
citizens as well. She observes: "I guess the tenuousness of those
ties don't really matter, when the President can dial up the
assassination of an American citizen."

A 1981 Executive Order signed by Ronald Reagan
provides: "No person employed by or acting on behalf of the United
States Government shall engage in, or conspire to engage in,
assassination." Before the Geneva Conventions were first enacted,
Abraham Lincoln -- in the middle of the Civil War -- directed Francis
Lieber to articulate rules of conduct for war, and those were then
incorporated into General Order 100, signed by Lincoln in April, 1863. Here is part of what it provided, in Section IX, entitled "Assassinations":

The
law of war does not allow proclaiming either an individual belonging to
the hostile army, or a citizen, or a subject of the hostile government,
an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such intentional outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation, made by whatever authority. Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism.

Can
anyone remotely reconcile that righteous proclamation what the Obama
administraiton is doing? And more generally, what legal basis exists
for the President to unilaterally compile hit lists of American
citizens he wants to be killed?

What's most striking of
all is that it was recently revealed that, in Afghanistan, the U.S. had
compiled a "hit list" of Afghan citizens it suspects of being drug
traffickers or somehow associated with the Taliban, in order to target
them for assassination. When that hit list was revealed, Afghan officials "fiercely" objected on the ground that it violates due process and undermines the rule of law to murder people without trials:

Gen.
Mohammad Daud Daud, Afghanistan's deputy interior minister for
counternarcotics efforts, praised U.S. and British special forces for
their help recently in destroying drug labs and stashes of opium. But
he said he worried that foreign troops would now act on their own to
kill suspected drug lords, based on secret evidence, instead of handing
them over for trial.

"They should respect our law, our constitution and our legal codes," Daud said. "We have a commitment to arrest these people on our own" . . . .

Ali
Ahmad Jalali, a former Afghan interior minister, said that he had long
urged the Pentagon and its NATO allies to crack down on drug smugglers
and suppliers, and that he was glad that the military alliance had
finally agreed to provide operational support for Afghan
counternarcotics agents. But he said foreign troops needed to avoid the
temptation to hunt down and kill traffickers on their own.

"There
is a constitutional problem here. A person is innocent unless proven
guilty," he said. "If you go off to kill or capture them, how do you
prove that they are really guilty in terms of legal process?" . . .

So
we're in Afghanistan to teach them about democracy, the rule of law,
and basic precepts of Western justice. Meanwhile, Afghan officials
vehemently object to the lawless, due-process-free assassination "hit
list" of their citizens based on the unchecked say-so of the U.S.
Government, and have to lecture us on the rule of law and
Constitutional constraints. By stark contrast, our own Government, our
media and our citizenry appear to find nothing wrong whatsoever with
lawless assassinations aimed at our own citizens. And the most glaring
question for those who critized Bush/Cheney detention policies but want
to defend this: how could anyone possibly object to imprisoning
foreign nationals without charges or due process at Guantanamo while
approving of the assassination of U.S. citizens without any charges or
due process?