So, I am NOT the only one asking this:
By Spencer Ackerman 4/21/10 2:45 PM
I spent my morning attending the fifth birthday of the Office of the Director of National Intelligence, the management organization dedicated to marshaling the 16 intelligence agencies toward a coherent, unified goal. Surrounded by the heads of all those agencies, retired Adm. Dennis Blair, the director of national intelligence, gave an inspiring speech to his workforce about how the next five years of intelligence integration would be “driven by joint missions, powered — united — by technology, continually learning and improving.” There were cupcakes. And then we talked about killing American citizens.
Two weeks ago, anonymous administration officials had said an American citizen, Anwar al-Awlaki, living in Yemen and producing scores of incitement-filled sermons about the alleged Islamic imperative to kill Americans, could be targeted for assassination. The legal basis for such a thing has not been disclosed. So in a brief press Q-and-A with Blair, I asked what legal authorization he had for targeting an American citizen like Awlaki. Blair replied broadly that his authorization came from the law and the Constitution, pledged the intelligence community would “follow all rules” given to it by the “executive branch [and] the congressional branch” and then ended the press conference. There were more cupcakes.
I filed a Freedom of Information Act request with the CIA and the Justice Department two weeks ago to find out the actual legal basis claimed by the Obama administration for targeting an American citizen for death without any provision of due process.
Two weeks ago, anonymous administration officials had said an American citizen, Anwar al-Awlaki, living in Yemen and producing scores of incitement-filled sermons about the alleged Islamic imperative to kill Americans, could be targeted for assassination. The legal basis for such a thing has not been disclosed. So in a brief press Q-and-A with Blair, I asked what legal authorization he had for targeting an American citizen like Awlaki. Blair replied broadly that his authorization came from the law and the Constitution, pledged the intelligence community would “follow all rules” given to it by the “executive branch [and] the congressional branch” and then ended the press conference. There were more cupcakes.
I filed a Freedom of Information Act request with the CIA and the Justice Department two weeks ago to find out the actual legal basis claimed by the Obama administration for targeting an American citizen for death without any provision of due process.
5 Comments:
At 7:51 AM,
Anonymous said…
I am not quite clear about what you object to. It seems to me that any nation is entitled to use lethal force in the context of an armed conflict, including targeted assassination of the enemy's leaders whether or not that occurs on a traditional "battlefield". This is kind of basic international law of armed conflict, and/or international law of self defence.
So I am assuming that your problem is not so much with the targeted killing of an enemy leader, but rather with the fact that he happens to be an American citizen. To which I ask: why should this make any difference? As a matter of common sense, this particular American has allied himself with an armed and dangerous enemy, in a foreign country, and is no less a threat to other American citizens than as if he were a citizen of Yemen. And as a matter of Domestic law, he probably falls within the "impracticable and anomolous" exception articulated by Justice Harlan in Reid v. Covert, and as such has forfeited his right to the protection of the U.S. Constitution.
I am as repulsed as you are, that we live in a world where it is necessary for a government to target any individual for assassination. But that is the hand we are dealt. And given that reality, I don't see why you as a lawyer should have any difficulty coming up with a legal basis to support Obama's target assassination of this particular American citizen. You may not agree with the legal argument -- many others do not -- but surely you can acknowledge that the President is not merely acting out of sheer lawlessness.
At 10:37 AM,
ricksahm said…
No, I cannot acknowledge that. Of course, lawyers who are so inclined can make arguments for anything - see John Yoo - but that does not mean that the making of arguments makes those arguments valid or within legal or Const. bounds. If the order is to kill, rather than capture if capture is possible, then it is way outside our laws. And, are we at war? If so, why are not the people in Gitmo POWs, with the rights that POWs have?
At 11:09 AM,
Anonymous said…
You have a good point about the GITMO detainees -- if the U.S. is in a state of war, and if the international law of armed conflict is therefore the legal basis for targeted killing of an enemy leader in another country, then logically the GITMO detainees should have the status of POWs with all that implies. I don't think that necessarily invalidates the legal argument, but it does of course highlight a sad and unfortunate inconsistency in reasoning.
However, as I said originally, it is also plausible to find the legal justification for the targeted killing of al-Awlaki within the legal paradigm of self-defence, applied in the international law context. This would NOT require that the U.S. be in a state of war with any particular nation, especially if the target person is not acting on behalf of any particular nation [as is the case with al-Quada]. Of course, the usual principles of necessity and proportionality would still apply, and I think this is what you are driving at when you question the necessity of killing this person if it is possible to capture him and bring him before a U.S. tribunal. We have to assume [hope?] that this was fully explored before the kill order was made, but of course we have no way of knowing.
I notice, though, that you have not really responded to my assumption -- that you are more concerned with al-Awaki's status as an American citizen than anything else. Is that the case? If he were a Yemeni citizen, not an American, would you be OK with "taking him out"? Are you OK with killing bin Laden on the spot, if ever he could be found?
At 10:19 AM,
ricksahm said…
I think it is wrong, not legally or morally justifiable, and reflective of a tyrannical, despotic (I am the king, so whatever I say or do is OK; "If the President does it, it is not illegal.") manner. I was for Obama, but this is a horrible, unjustifiable way of assuming and executing power. In addition, the horror is the order to kill - anywhere - not the citizenship. The citizenship issue is a hideous highlight - imagine our response if the leader of China said that he simply ordered a murder of one of China's citizens (query whether they are citizens or subjects?), or the despot of Zimbabwe said that. Both "leaders" of those countries do, in fact, kill their citizens/subjects, but we think it is wrong as well as illegal.
I think it is time you dropped your anonymity. What do you think? It is weird carrying on considerable conversations with someone behind a shielf.
At 7:24 AM,
Anonymous said…
I wasn't concerned, as you, regarding the use of lethal force against a so-called American citizen, In this instance, I am referring to, al Alwaki.
This man is the poster boy for why we should change that antiquated rule (put in place to give credence to the slaves' right to citizenship)regarding children born to foreigners in this country with visas; that their progany has a right to automatic US citizenship.
Are you aware that al Alwaki held dual citizenship for Yemen and the USA? We are engaged in a war and the rules of war apply to enemies of our country; albeit holding a US citizenship or not.
Maybe you need to take a walk down memory lane. There was some- not many- Germans during WWII, whose children- born here;were American citizens by law;spoke English and German and felt compelled to fight for the Fatherland. A coupe for Deutchland, as these young people had an inherent knowledge of America and its people. When caught in War, they were executed as spys and enemies of the USA.
Holding American citizenship does not a true citzen make, if from chidhood indoctrination of anti-American rhetoric had been the main thrust of their mind set.
The al Akwaki's of this country are classic examples of people whose soical/cultural/religious idealogies are in diametric opposition to ours. They come here, not to seek freedom and liberties, but to create a nest from which can spring an internal enemy armed with the idioms and inherent insight of US people, places and views, and their strengths, compassions and failings.
In al Awalki's case, he was just a darling litte, Muslim terrorist tot, that mom and dad sent to Jihad camp in Yemen every summer throughout his childhood, much as American children go to girl and boy scout camp, camp Hiawatha or Kitchecumee. The difference is our children go to camp to have fun,make friends, row canoes, sing songs, have bon fires, salute the flag and thank God for the wonder of this country called the USA.
Terrorist tots attend camp to fuel hatered for Freedom, liberty, Israel and any religion that is not their religious dogma.
If we had leaders with the intelligence of a Harry Truman or a Teddy Roosevelt, instead of fools, subjugated by a minority of Marxists, Communists and Socialists, that have infiltrated into every nook of our education, unions, judical system and governnment branches, pushing for the abolishment of God and Country and labeling anyone who disagrees as Poltically Incorrect, this nonsense with the Muslims would have been nipped in the bud in short shrift.
The way to begin disassmbling the chain of terrorists, and anti-Americans coming into our country under the guise of living in a new and free world, is to: a)Immediately stop immigration from all middle-eastern countries (during war you should cease to let possible enemies into your country as was done during every war we have engaged in) and b) Repeal that insane law that any foreign national giving birth to a child in the USA provides their child with automatic citizenship and c) Any citzen that actively engages in terrorism against the USA and the death of its citizens should have their citzenship revoked.
Nuff' said, Barrister
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