On March Fifth, President Obama’s Attorney General Eric Holder presented a speech at Northwestern University to explain President Obama’s approach to targetted assassinations and legal justification for them, including a retroactive justification of the assassination of US citizen Anwar Al-Awlaki.
In the speech, Holder articulated a new standard of due process that President Obama is relying on as a basis for his actions:
Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.
Unfortunately, Mr. Holder did not present any evidence that the process that the administration is providing meets any particular standard other than the “trust us on this” standard.
US Attorney General Eric Holder asserted in a speech at Northwestern University’s law school that it is lawful for the government to kill American citizens if officials deem them to be operational leaders of Al Qaeda who are planning attacks on the United States and if capturing them alive is not feasible. He did this without legal citations or footnotes to the speech. Eric Holder needs to reread the Constitution, in particular the 5th, 6th, and 14th amendments, with an emphasis on the 6th
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
4. The right to be notified of the nature and circumstances of the alleged crime
5. The right to confront witnesses who will testify against the accused
6. The right to find witnesses who will speak in favor of the accused
7. The right to have a lawyer
“Due process balances the power of law of the land and protects individual persons from it. When a government harms a person without following the exact course of the law, this constitutes a due-process violation, which offends against the rule of law.”
And according to the 5th Amendment‘s brief but very clear language, no person “be deprived of life, liberty, or property, without due process of law.”
Law professor Jonathan Turley wrote at his blog that Holder has promised to kill citizens with care. That, in effect, is the pledge the Obama administration’s attorney general says has replaced our constitutional protections:
[..]The good news is that Holder promised not to hunt citizens for sport. Holder proclaimed that:
“The president may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a US citizen.”
The use of the word “abroad” is interesting since senior administration officials have asserted that the president may kill an American anywhere and anytime, including in the United States. Holder’s speech does not materially limit that claimed authority. He merely assures citizens that Obama will only kill those of us he finds abroad and a significant threat. Notably, Holder added, “Our legal authority is not limited to the battlefields in Afghanistan.” [..]
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? [..]
He was more clear in establishing that due process itself is now defined differently than it has been defined by courts since the start of this Republic. He declared that “a careful and thorough executive branch review of the facts in a case amounts to ‘due process.'” Of course, from any objective standpoint, that statement is absurd and Orwellian. It is basically saying that “we will give the process that we consider due to a target.” His main point was that “due process” will now no longer mean “judicial process.” [..]
This Administration has consistently maintained that courts do not have a say in such matters. Instead, they simply define the matter as covered by the Law Of Armed Conflicts (LOAC), even when the conflict is a war on terror. That war, they have stressed, is to be fought all around the world, including the United States. It is a battlefield without borders as strikes in other countries have vividly demonstrated.
Since the whole world is a battlefield in the vague ‘war on terror,’ the only due process afforded to someone who has been targeted for extrajudicial execution is a secret ‘review’ by the panel of senior officials in the executive branch.
Just as the public demanded the release of the Bush Administration’s Torture Memos to expose the ludicrous rationale behind their secret torture program, we too must demand to know the legal rationale for a program that allows our president to unilaterally choose to deprive someone of life and liberty – without any oversight or recourse available to the victim.
Holder’s speech was a cheap attempt to feign transparency without actually releasing the legal memos that define the administration’s execution program. We need your help to demand the Obama administration release these memos immediately so there can be an open public debate about Executive power and the execution of American citizens without any due process or outside accountability.
In January a young Iranian nuclear scientist was killed in a Tehran car bomb explosion, the fifth scientist to be killed since 2007. There were accusations by the Iranians that this was carried out by the Israelis with the blessings of the United States to stop Iran’s nuclear energy program. Of course there were the obligatory denials by the Israelis and the US through the State Department even though Israel had previously hinted about a covert campaign with Iran and told a parliamentary panel that 2012 would be a “critical year” for Iran in part because of “things that happen to it unnaturally”.
Robert Baer, the long-time senior CIA officer who spent 21 years working the Middle East, was on MSNBC’s ‘Hardball’ saying that he believes Israel is assassinating Iranian scientists in an attempt to provoke Iran to fight back and draw the US into a full-scale war. Baer has made this argument before considering Israel’s “track record of assassinations, from the Palestinian perpetrators of the Munich Olympic attack of 1972, to the killing of senior Hamas official Mahmoud al-Mabhouh in a Dubai hotel room in early 2010″:
“If you look at the choice of target it really could only be Israel,” says Robert Baer, a former CIA agent in the Middle East, currently working on a book on assassination called The Perfect Kill. “If it was an internal group, like the MeK (Mujahedin-e-Khalq) it would be security official or policeman who had been torturing their guys. If you look at the motivation, it must be Israel.”
However, Baer adds that it is quite likely that Israel is acting in tandem with an Iranian dissident organisation. “To do this in the middle of the day, with a limpet charge and then getaway, you need a lot of people on the ground,” he says. ” You need an extensive network of the kind only someone like MeK can provide.”
Part of the problem here is the pretense that Terrorism has some sort of fixed, definitive meaning. It does not. As Professor Remi Brulin has so exhaustively documented, the meaning of the term has constantly morphed depending upon the momentary interests of those nations (usually the U.S. and Israel) most aggressively wielding it. It’s a term of political propaganda, impoverished of any objective meaning, and thus susceptible to limitless manipulation. Even the formal definition incorporated into U.S. law is incredibly vague; one could debate forever without resolution whether targeted killings of scientists fall within its scope, and that’s by design. The less fixed the term is, the more flexibility there is in deciding what acts of violence are and are not included in its scope.
But to really see what’s going on here, let’s look at how a very recent, very similar assassination plot was discussed. That occurred in October when the U.S. accused Iran’s Quds Forces of recruiting a failed used car salesman in Texas to hire Mexican drug cartels to assassinate the Saudi Ambassador at a restaurant in Washington, D.C. Let’s put to side the intrinsic ridiculousness of the accusation and assume it to be true […] when that plot to kill the Saudi Ambassador was “revealed,” virtually every last media outlet – and government official – branded it “Terrorism.” It was just reflexively described that way. And I never heard anyone – anywhere – object to the use of that term on the ground that targeted assassinations aren’t Terrorism, or on any other ground.
There is quite a bit of evidence to support this. The New York Timesreported that there is more truth to the plot to draw Iran into a war than not:
The campaign, which experts believe is being carried out mainly by Israel, apparently claimed its latest victim on Wednesday when a bomb killed a 32-year-old nuclear scientist in Tehran’s morning rush hour.
The scientist, Mostafa Ahmadi Roshan, was a department supervisor at the Natanz uranium enrichment plant, a participant in what Western leaders believe is Iran’s halting but determined progress toward a nuclear weapon. He was at least the fifth scientist with nuclear connections to be killed since 2007; a sixth scientist, Fereydoon Abbasi, survived a 2010 attack and was put in charge of Iran’s Atomic Energy Organization […]
“I often get asked when Israel might attack Iran,” Mr. (Patrick, director of the Iran Security Initiative at the Washington Institute for Near East Policy) Clawson said. “I say, ‘Two years ago.’ ”
Mr. Clawson said the covert campaign was far preferable to overt airstrikes by Israel or the United States on suspected Iranian nuclear sites. “Sabotage and assassination is the way to go, if you can do it,” he said. “It doesn’t provoke a nationalist reaction in Iran, which could strengthen the regime. And it allows Iran to climb down if it decides the cost of pursuing a nuclear weapon is too high.”
The rare coordinated attempts on the lives of Israeli diplomatic representatives came a month after the latest assassination of an Iranian nuclear scientist and were set against an escalating war of words between Israel and Iran over a possible Israeli strike on Iranian nuclear facilities. The attempted attacks also coincided with the fourth anniversary of the assassination of Imad Mughniyeh, a leader of Hezbollah, a militant Shiite Lebanese group backed by Iran.
India has stated that they have no evidence that Iran was involved but they have their own motivations, as does Russia, to protect Iran. Both India and Russia are ignoring the international sanctions to get Iran back to the table for discussion of their nuclear program. But. as Glenn Greenwald noted in his article about media the push to a war with Iran the media failed to mention
….the glaring irony that the mode of attack in India is virtually identical to the one used to kill numerous Iranian scientists (“a magnetic bomb was slapped onto {the} car by a passing motorcyclist”). One thing is crystal clear, as macgupta put it in the comment section: “In any case, no matter who the perpetrators are, these attacks are a sign that we are moving closer to a war with Iran.
Tehran has good relations with Thailand, India and Georgia. Why would it endanger that by planting bombs there?
Let’s assume that sections of the military and security apparatus in Iran are responsible for the string of bombings in Georgia, Thailand and India. What would be the motive? The argument that Iran is retaliating for the murder of five civilian nuclear scientists in Iran is not plausible. If Iran wanted to target Israeli interests, it has other means at its disposal. It is hard to imagine that the Iranian government would send Iranian operatives to friendly countries, completely equipped with Iranian money and passports – making the case against them as obvious as possible.
If the Iranian Revolutionary Guards are as professional, highly trained and politically savvy as we have been told repeatedly by Israeli politicians themselves, if they have successfully trained and equipped the cadres of Hezbollah and other movements with paramilitary wings in the region, then why would they launch such a clumsy and self-defeating operation?
And why India, Georgia and Thailand, three countries that Iran has had cordial relations with during a period when Iran is facing increasing sanctions spearheaded by the United States? A few days ago, India agreed a rupee-based oil and gas deal with Iran and resisted US pressures to join the western boycott of the Iranian energy sector. As a net importer of 12% of Iranian oil, India’s total trade with Iran amounted to $13.67bn in 2010-2011. What would be the motive for damaging relations with one of Iran’s major trading partners and regional heavyweights?
In December of 2010, Greenwald appeared on Morning Joe with Joe Scarborough to why Iran is not a threat to the US or Israel. His argument still holds true.
Is this another run up to another unnecessary war in the Middle East? If it looks like a duck …….
Like his predecessor, George W. Bush, President Barack Obama went to his Office of Legal Council on how to circumvent an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war to “legally” order and successfully carry out the assassination of American citizen Anwar al-Awlaki last month in Yemen. According to an article by reporter Charles Savage in the New York Times, the 50 page memorandum was completed in June of last year. It was written specifically in regard to only al-Awlaki and did not examine the evidence against him:
The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.
The memorandum, which was written more than a year before Mr. Awlaki was killed, does not independently analyze the quality of the evidence against him.
[]
It was principally drafted by David Barron and Martin Lederman, who were both lawyers in the Office of Legal Counsel at the time, and was signed by Mr. Barron. The office may have given oral approval for an attack on Mr. Awlaki before completing its detailed memorandum. Several news reports before June 2010 quoted anonymous counterterrorism officials as saying that Mr. Awlaki had been placed on a kill-or-capture list around the time of the attempted bombing of a Detroit-bound airliner on Dec. 25, 2009. Mr. Awlaki was accused of helping to recruit the attacker for that operation.
[]
Other assertions about Mr. Awlaki included that he was a leader of the group, which had become a “cobelligerent” with Al Qaeda, and he was pushing it to focus on trying to attack the United States again. The lawyers were also told that capturing him alive among hostile armed allies might not be feasible if and when he were located.
Based on those premises, the Justice Department concluded that Mr. Awlaki was covered by the authorization to use military force against Al Qaeda that Congress enacted shortly after the terrorist attacks of Sept. 11, 2001 – meaning that he was a lawful target in the armed conflict unless some other legal prohibition trumped that authority.
Mr. Savage goes on to detail how each legal obstacle was considered and rejected:
The executive order the lawyers concluded only pertained to the assassination of political leaders outside of war;
It concluded that if the operator of the drone was a civilian of the CIA it wold not be a war crime and although it would violate the laws of Yemen, ti would be unlikely that Yemen would seek to prosecute;
The memo concluded that what was reasonable, and the process that was due, was different for Mr. Awlaki than for an ordinary criminal. It cited court cases allowing American citizens who had joined an enemy’s forces to be detained or prosecuted in a military court just like noncitizen enemies.
It also cited several other Supreme Court precedents, like a 2007 case involving a high-speed chase and a 1985 case involving the shooting of a fleeing suspect, finding that it was constitutional for the police to take actions that put a suspect in serious risk of death in order to curtail an imminent risk to innocent people.
The document’s authors argued that “imminent” risks could include those by an enemy leader who is in the business of attacking the United States whenever possible, even if he is not in the midst of launching an attack at the precise moment he is located.
Despite the argument that will be made by the right wing Obama supporters that the memorandum is specific to al-Awlaki, all the arguments that were made to justify his assassination could easily be made against any US citizen anywhwere and may already have been:
American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions . . . . There is no public record of the operations or decisions of the panel, which is a subset of the White House’s National Security Council . . . . Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate. . . . The role of the president in ordering or ratifying a decision to target a citizen is fuzzy. White House spokesman Tommy Vietor declined to discuss anything about the process. . . .
Glenn Greenwald at Salon in his excellent article considers that al-Awlaki won’t be the last victim:
Officials in the Obama White House and then the President decreed in secret that Awlaki should die. So the U.S. Government killed him. Republicans who always cheer acts of violence against Muslims are joined by Democrats who reflexively cheer what this Democratic President does, and now this death panel for U.S. citizens – operating with no known rules, transparency, or oversight – is entrenched as bipartisan consensus and a permanent fixture of American political life. I’m sure this will never be abused: unrestrained power exercised in secret has a very noble history in the U.S. (Reuters says that the only American they could confirm on the hit list is Awlaki, though Dana Priest reported last year that either three or four Americans were on a hit list).
Anyway, look over there: wasn’t it outrageous how George Bush imprisoned people without any due process and tried to seize unrestrained power, and isn’t it horrifying what a barbaric death cult Republicans are for favoring executions even when there’s doubt about guilt? Even for those deeply cynical about American political culture: wouldn’t you have thought a few years ago that having the President create a White House panel to place Americans on a CIA hit list – in secret, without a shred of due process – would be a bridge too far?
Three weeks ago, I wrote about a lawsuit filed by the ACLU and the Center for Constitutional Rights, based on the Treasury Department’s failure to grant a “license” to those groups to represent U.S. citizen Anwar Awlaki in his efforts to obtain a court order barring the U.S. Government from assassinating him without due process. In response, Treasury officials issued the license (those groups are nonetheless proceeding with that lawsuit in an attempt to have the entire licensing scheme declared unconstitutional on the ground that the Federal Government has no authority to require its permission before American lawyers can represent American citizens, even if the citizen in question has been accused of being a Terrorist).
With the license now issued, the ACLU and CCR this afternoon filed a lawsuit on behalf of Anwar Awlaki, with Awlaki’s father as the named plaintiff, to prevent the Obama administration from proceeding with Awlaki’s due-process-free assassination. Awlaki is unable to file the lawsuit on his own because the U.S. government’s threats to kill him, as well as its prior unsuccessful attempts, cause him to be in hiding and thus make it infeasible for him to assert his legal rights directly.
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