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A US Predator drone flies over Kandahar Air Field in southern Afghanistan, on Jan. 31, 2010. (Photo: AP Photo/Kirsty Wigglesworth)

A US Predator drone flies over Kandahar Air Field in southern Afghanistan, on Jan. 31, 2010. (Photo: AP Photo/Kirsty Wigglesworth) 

Your Government Has a Secret Kill List. Is that OK With You?

Kareem’s story neatly captures the havoc that the war on terror has wreaked on the legal system and the dangers of abandoning legal traditions that have served us well for centuries

Bilal Abdul Kareem, an American citizen, thinks the government is trying to kill him. And he might be right.

Kareem’s story, recently chronicled in Rolling Stone, neatly captures the havoc that the war on terror has wreaked on the legal system and the dangers of abandoning legal traditions that have served us well for centuries.

Kareem resides overseas and is struggling to determine why he is apparently on the government’s secret “kill list,” which targets terror suspects for drone strikes. Kareem finds that objects in his vicinity tend to explode with some frequency, and he has taken the issue to court, arguing that the American government cannot blow him up without due process.

Unfortunately, the federal judiciary so far has largely removed itself from this process by declaring the criteria for the kill list to be a political question outside the purview of judges. Kareem’s case continues to make its way through the courts, but lawmakers shouldn’t punt their responsibilities to the judiciary.

Congress should act, and pass a law that protects American citizens from extrajudicial killing by banning the executive branch from targeting American citizens for assassination. Further, here in Massachusetts and elsewhere, every candidate running for federal office should clearly state their position on the executive branch’s assumed authority to impose a unilateral death sentence on their potential constituents.

Why does it matter if a person is American if that person may be dangerous? Setting aside whether you trust the government’s criteria for designating someone a terrorist, the reason is that each of us is entitled to due process. That’s a phrase most Americans are probably familiar with, but few outside the legal community could define.

Due process is the right to be informed and the opportunity to be meaningfully heard before the government deprives you as a citizen of life, liberty, or property. The right to due process is granted to Americans by the Fifth and 14th Amendments. It is a cloak that swathes Americans in a wide range of protections, from requiring access to an attorney when a citizen is accused of a criminal offense to a period of public comment before an agency changes a policy.

Yet, shockingly, the basic right to be notified and heard regarding a death sentence is denied to all Americans residing outside our states, territories, military bases, and embassies. The government cannot convict you of trespassing without informing you of the charge — but it can arm a drone with a missile and shoot at you, even absent any evidence that you pose an imminent threat, based on criteria it refuses to make public.

The policy of using drones to kill American citizens developed under President Barack Obama, most notably with his administration’s 2011 killing of American citizen Anwar al-Awlaki.

The policy of using drones to kill American citizens developed under President Barack Obama, most notably with his administration’s 2011 killing of American citizen Anwar al-Awlaki. Democrats who might have criticized George W. Bush or Donald Trump for that constitutional violation stayed mum then and have since continued their silence.

To be sure, the evidence against al-Awlaki is damning — that he inspired both the Fort Hood shooter and the Boston Marathon bombing, among other crimes. But like a domestic killer, al-Awlaki deserved a day in court. The Obama administration denied this citizen due process.

While the criteria for determining who’s on the kill list are classified, those determinations appear be automated. The former head of the National Security Agency and CIA stated flatly in 2014: “We kill people based on metadata.” An algorithm collates a series of mystery factors and decides whether someone is a terrorist, and whether that person should be killed. Call it death by Spotify.

Sound extreme? Maybe. We don’t know. You don’t know. No judge, jury, or lawmaker, for that matter, seems to know. Americans and two out of three branches of our government don’t know who’s on the list, and that must end.

Sadly, politicians from both parties have been deafeningly silent on this issue of extrajudicial killings.

In 2013, Republican Senator Rand Paul filibustered the CIA director’s nomination to protest drone strikes against Americans on American soil (an event that has never happened). Paul has since offered conflicting positions on the issue of targeted assassination of Americans overseas.

Kareem resides overseas and is apparently on the government’s death list, which targets terror suspects for drone strikes. He finds that objects in his vicinity tend to explode with some frequency.

Senator Elizabeth Warren has spoken movingly about the high cost of civilian casualties caused by drone strikes, but not the targeted killing of American citizens or made her position on Obama’s extrajudicial killing of al-Awlaki known.

Every candidate running for president, senator, or representative should be questioned about whether they support extrajudicial killing of citizens and, if not, what they intend to do about it.

The right to due process has been a bedrock of the judicial system, and one of the pillars that support a free society going back eight centuries to the Magna Carta. It is the birthright of every American.

Gaining a tactical advantage is not worth losing that heritage. To every candidate running for Congress right now, we should ask: Are you comfortable with secret kill lists and extrajudicial executions? Our fellow Americans: Are you?


© 2021 Boston Globe
Tom Emswiler

Tom Emswiler

Tom Emswiler is a public health advocate and former congressional aide based in Quincy, Massachusetts. Follow him @tomems8.

Will Isenberg

Will Isenberg

Will Isenberg is a founding partner at the law firm Isenberg Groulx LLC in Boston.

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