The Obama administration has superseded both domestic and international law in its targeted killing program in Pakistan, Yemen, and Somalia. A legal memo from the Congressional Research Service has concluded that “none of the established legal frameworks is a perfect fit for the Administration’s lethal targeting operations because the current US practice of lethal targeting involves features that are improvised, inconsistent or otherwise questionable,” according to Secrecy News.
While the laws of war have traditionally been relegated to certain geographic areas of declared conflict, the Obama administration has expanded Congress’s authorization of the use of force, initially granted for Afghanistan, to apply to a borderless conflict that is defined however the President wants. The administration has also extended the authorization for the use of force against those who carried out the attacks of September 11th to apply to anyone the President says is a member of al-Qaeda, anywhere in the world, without any checks or balances or legal process to prove such membership. The administration has also extended this reasoning to US citizens, who have undeniable rights to due process under the Constitution, and while they seem to have written a legal memo from the Office of Legal Counsel, they have refused to release it.
In order to violate established law with a new supplanted version of it, the Obama administration has done what many ruling parties have done in the past to retroactively legalize their crimes: alter the English language. Secrecy News explains:
For example, CRS says the Administration appears to have redefined the meaning of “imminence,” one of the required elements for justifying the use of force in self-defense on the territory of another country. The standard definition of imminence refers to an overwhelming threat that allows “no moment for deliberation.” But the Administration uses imminence idiosyncratically “to refer to the window of opportunity for striking rather than the perceived immediacy of the threat of an armed attack.” This novel usage “may pose some challenge to the international law regarding the use of force,” CRS said.
Yes, the administration’s notion of imminence is certainly “novel,” especially when an entire plank of their drone war includes spying on groups of people for days, sometimes weeks at a time, in order to distinguish a so-called “pattern of behavior,” which by their reasoning is enough to establish membership of al-Qaeda. Whatever this is, it has nothing to do with “imminent” threats, traditionally defined.
This legal memo from CRS, which is supposed to be secret and available only to members of Congress, concludes that the Obama administration’s actions cannot be reconciled with customary laws of war and appears to supersede the supreme law of the land, the Constitution and the Bill of Rights. But the memo points to two other legal constraints being either ignored or unilaterally overruled.
First, the US laws which prohibit assassinations by government officials. “The US prohibition on assassinations conducted by US officials or persons employed by the United States is set forth most prominently in an executive order originally issued in 1981 by President Ronald Reagan,” CRS writes. “Executive Order 12333 on ‘United States Intelligence Activities,’ provides that ‘[n]o person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.'” To get around this prohibition, advocates of the targeted killing program claim we’re at war, and therefore these aren’t assassinations. But that can only be true if it can be legally accepted that this war is limitless in space and time.
This view of the lawfulness of targeted killing during peace or war is not universally held, which has led to characterizations of U.S. attacks in Yemen and other places as acts of “extrajudicial killing” in violation of international law. After the United States conducted a drone strike in Yemen in 2002 against suspected Al Qaeda militants alleged to have been involved in the 2000 strike against the USS Cole, the special rapporteur on extrajudicial, summary, or arbitrary executions of the United Nations Commission on Human Rights issued a report calling the strike “a clear case of extrajudicial killing.”
And lastly, the Obama administration appears to be violating the decision of the Supreme Court in Hamdi v. Rumsfeld, which said due process must be “accorded to a US citizen deprived of liberty in connection with hostilities, where such deprivation involved detention without trial until the end of hostilities, at a minimum, the right to ‘receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.'” Obviously this didn’t happen with the three US citizens the President killed last year in Yemen via drone strike, despite the fact that Awlaki’s father tried to file suit in response to his son’s inclusion on a presidential kill list. “This embrace of unchecked executive authority may prove difficult to reconcile with the majority holding in Hamdi,” writes Secrecy News.
And perhaps most importantly, “By withholding its own Office of Legal Counsel opinion on the legality of lethal targeting of suspected terrorists who are US citizens,” Secrecy News warns, “the Obama Administration seems intent not on protecting sensitive operational details but on suppressing public awareness and debate.”