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Obama authorize the killing by the CIA of a terrorism suspect

The Obama administration’s decision to authorize the killing by the Central Intelligence Agency of a terrorism suspect who is an American citizen has set off a debate over the legal and political limits of drone missile strikes, a mainstay of the campaign against terrorism.

Muhammad ud-Deen/Associated Press

The C.I.A. has placed the American-born cleric Anwar al-Awlaki on a list for killing.

Related

• Times Topic: Anwar al-Awlaki

• Imam’s Path From Condemning Terror to Preaching Jihad (May 9, 2010)

The notion that the government can, in effect, execute one of its own citizens far from a combat zone, with no judicial process and based on secret intelligence, makes some legal authorities deeply uneasy.

To eavesdrop on the terrorism suspect who was added to the target list, the American-born radical cleric Anwar al-Awlaki, who is hiding in Yemen, intelligence agencies would have to get a court warrant. But designating him for death, as C.I.A. officials did early this year with theNational Security Council’s approval, required no judicial review.

“Congress has protected Awlaki’s cellphone calls,” said Vicki Divoll, a former C.I.A. lawyer who now teaches at the United States Naval Academy. “But it has not provided any protections for his life. That makes no sense.”

Administration officials take the view that no legal or constitutional rights can protect Mr. Awlaki, a charismatic preacher who has said it is a religious duty to attack the United States and who the C.I.A. believes is actively plotting violence. The attempted bombing of Times Square on May 1 is the latest of more than a dozen terrorist plots in the West that investigators believe were inspired in part by Mr. Awlaki’s rhetoric.

“American citizenship doesn’t give you carte blanche to wage war against your own country,” said a counterterrorism official who discussed the classified program on condition of anonymity. “If you cast your lot with its enemies, you may well share their fate.”

President Obama, who campaigned for the presidency against George W. Bush-erainterrogation and detention practices, has implicitly invited moral and legal scrutiny of his own policies.

But like the debate over torture during the Bush administration, public discussion of what officials call targeted killing has been limited by the secrecy of the C.I.A. drone program. Representative John F. Tierney, who on April 28 held the first Congressional hearing focused on the lawfulness of targeted killing, said he was determined to air the contentious questions publicly and possibly seek legislation to govern such operations.

The reported targeting of Mr. Awlaki “certainly raises the question of what rights a citizen has and what steps must be taken before he’s put on the list,” said Mr. Tierney, Democrat of Massachusetts and chairman of a House subcommittee on national security.

Counterterrorism officials, with the support of Democrats and Republicans in Congress, say the drone missile strikes have proved to be an extraordinarily successful weapon against militants in the tribal areas of Pakistan, the location of all the known C.I.A. strikes except one in Yemen in 2002. By their count, the missiles have killed more than 500 militants since 2008, and a few dozen nearby civilians.

In the fullest administration statement to date, Harold Koh, the State Department’s legal adviser, said in a March 24 speech the drone strikes against Al Qaeda and its allies were lawful as part of the military action authorized by Congress after the Sept. 11, 2001, attacks, as well as under the general principle of self-defense. By those rules, he said, such targeted killing was not assassination, which is banned by executive order.

But the disclosure last month by news organizations that Mr. Awlaki, 39, had been added to the C.I.A. kill list shifted the terms of the legal debate in several ways. He is located far from hostilities in Afghanistan and Pakistan, where the perpetrators of 9/11 are believed to be hiding.

He is alleged to be affiliated with a Yemeni branch of Al Qaeda. Intelligence analysts believe that only recently he began to help plot strikes, including the failed attempt to bomb an airliner on Dec. 25.

Most significantly, he is an American, born in New Mexico, arguably protected by the Fifth Amendment’s guarantee not to be “deprived of life, liberty, or property, without due process of law.” In a traditional war, anyone allied with the enemy, regardless of citizenship, is a legitimate target; German-Americans who fought with the Nazis in World War II were given no special treatment.

But Ms. Divoll, the former C.I.A. lawyer, said some judicial process should be required before the government kills an American away from a traditional battlefield. In addition, she offered a practical argument for a review outside the executive branch: avoiding mistakes.

She noted media reports that C.I.A. officers in 2004 seized a German citizen, Khaled el-Masri, and held him in Afghanistan for months before acknowledging that they had grabbed the wrong man. “What if we had put him on the kill list?” she asked.

Another former C.I.A. lawyer, John Radsan, said prior judicial review of additions to the target list might be unconstitutional. “That sort of review goes to the core of presidential power,” he said. But Mr. Radsan, who teaches at the William Mitchell College of Law in St. Paul, said every drone strike should be subject to rigorous internal checks to be “sure beyond a reasonable doubt” that the target is an enemy combatant.

As for the question of whether Mr. Awlaki is a legitimate target, Mr. Radsan said the cleric might not resemble an American fighting in a Nazi uniform. “But if you imagine him making radio speeches for the Germans in World War II, there’s certainly a parallel,” he said.

Beyond the legal debate is the question of whether killing Mr. Awlaki would be a good idea. Many Muslim activists and scholars say it would accord him martyr status and amplify his violent message. Mohamed Elibiary, a Muslim community advocate in Texas who advises law enforcement on countering extremism, said helping the Yemeni authorities arrest Mr. Awlaki would make more sense. “I’m not saying this guy shouldn’t be treated as an enemy,” Mr. Elibiary said. “But there are smarter and stupider ways of eliminating your enemy.”

American officials say an arrest may not be possible. “If we need to stop dangerous terrorists who hide in remote parts of the world, inaccessible to U.S. troops, law enforcement, or any central government,” said the counterterrorism official, “what do you do — cover your ears and wait for a truly devastating explosion in Times Square?”

New target of rights erosions: U.S. citizens

A primary reason Bush and Cheney succeeded in their radical erosion of core liberties is because they focused their assault on non-citizens with foreign-sounding names, casting the appearance that none of what they were doing would ever affect the average American. There were several exceptions to that tactic -- the due-process-free imprisonment of Americans Yaser Hamdi and Jose Padilla, the abuse of the "material witness" statute to detain American Muslims, the eavesdropping on Americans' communications without warrants -- but the vast bulk of the abuses were aimed at non-citizens. That is now clearly changing.

The most recent liberty-abridging, Terrorism-justified controversies have focused on diluting the legal rights of American citizens (in part because the rights of non-citizens are largely gone already and there are none left to attack). A bipartisan group from Congress sponsors legislation to strip Americans of their citizenship based on Terrorism accusations. Barack Obama claims the right to assassinate Americans far from any battlefield and with no due process of any kind. The Obama administration begins covertly abandoning long-standing Miranda protections for American suspects by vastly expanding what had long been a very narrow "public safety" exception, and now Eric Holder explicitly advocates legislation to codify that erosion. John McCain and Joe Lieberman introduce legislation to bar all Terrorism suspects, including Americans arrested on U.S. soil, from being tried in civilian courts, and former Bush officials Bill Burck and Dana Perino -- while noting (correctly) that Holder's Miranda proposal constitutes a concession to the right-wing claim that Miranda is too restrictive -- today demand that U.S. citizens accused of Terrorism and arrested on U.S. soil be treated as enemy combatants and thus denied even the most basic legal protections (including the right to be charged and have access to a lawyer).

This shift in focus from non-citizens to citizens is as glaring as it is dangerous. As Digby put it last week:

The frighting reality is that not even Dick Cheney thought of stripping Americans of their citizenship so that you could torture and imprison them forever --- even right after 9/11 when the whole country was petrified and he could have gotten away with anything. You'll recall evenJohn Walker Lindh, who was literally captured on the battlefield fighting with the Taliban, was tried in civilian court. They even read him his rights.

I think this says something fairly alarming about the current state of our politics.

There is, of course, no moral difference between subjecting citizens and non-citizens to abusive or tyrannical treatment. But as a practical matter, the dangers intensify when the denial of rights is aimed at a government's own population. The ultimate check on any government is its own citizenry; vesting political leaders with oppressive domestic authority uniquely empowers them to avoid accountability and deter dissent. It's one thing for a government to spy on other countries (as virtually every nation does); it's another thing entirely for them to direct its surveillance apparatus inward and spy on its own citizens. Alarming assaults on basic rights become all the more alarming when the focus shifts to the domestic arena.

It is not hyperbole to observe that all of the above-cited recent examples are designed to formally exempt a certain class of American citizens -- thoseaccused of being Terrorists and arrested on U.S. soil -- from the most basic legal protections. They're all intended, in the name of Scary Terrorists, to rewrite the core rules of our justice system in order to increase the already-vast detention powers of the U.S. Government and further minimize the remaining safeguards against abuse. The most disgraceful episodes in American history have been about exempting classes of Americans from core rights, and that is exactly what these recent, Terrorism-justified proposals do as well. Anyone who believes that these sorts of abusive powers will be exercised only in narrow and magnanimous ways should just read a little bit of history, or justlook at what has happened with the always-expanding police powers vested in the name of the never-ending War on Drugs, the precursor to the never-ending War on Terrorism in so many ways.

What's most amazing about all of this is that even 9 years after the 9/11 attacks and even after the radical reduction of basic rights during the Bush/Cheney years, the reaction is still exactly the same to every Terrorist attack, whether a success or failure, large- or small-scale. Apparently, 8 years of the Bush assault on basic liberties was insufficient; there are still many remaining rights in need of severe abridgment. Even now, every new attempted attack causes the Government to devise a new proposal for increasing its own powers still further and reducing rights even more, while the media cheer it on. It never goes in the other direction. Apparently, as "extremist" as the Bush administration was, there are still new rights to erode each time the word Terrorism is uttered. Each new incident, no matter how minor, prompts new, exotic proposals which the "Constitution-shredding" Bush/Cheney team neglected to pursue: an assassination program aimed at U.S. citizens, formal codification of Miranda dilutions, citizenship-stripping laws, a statute to deny all legal rights to Americans arrested on U.S. soil.

The U.S. already has one of the most pro-government criminal justice systems in the world. That (along with our indescribably insane drug laws) is why we have the world's largest prison population and the highest percentage of our citizenry incarcerated of any country in the Western world. It is hard to imagine a worse fate than being a defendant in the American justice system accused of Terrorism-related crimes. Conviction and a very long prison sentence are virtual certainties. Particularly in the wake of 9/11 and the Patriot Act era, the rules have been repeatedly rewritten to provide the Government with every conceivable advantage. The very idea that the Government is hamstrung in its ability to prosecute and imprison Terrorists is absurd on its face. Decades of pro-government laws in general, and post-9/11 changes in particular, have created a justice system that strangles the rights of those accused of Terrorism. Despite that, every new incident becomes a pretext for a fresh wave of fear-mongering and still new ways to erode core Constitutional protections even further.

It really is the case that every new Terrorist incident reflexively produces a single-minded focus on one question: which rights should we take away now/which new powers should we give the Government? We never reach the point where we decide that we have already retracted enough rights. Further restrictions on rights seems to be the only reaction of which our political and media class is capable in the face of a new attack. The premise seems to be that if we keep limiting rights further and further, we'll eventually reach the magical point of Absolute Safety where there will be no more Terrorism. For so many reasons, that is an obvious myth, one that ensures that we'll reduce rights infinitely and with no discernible benefit. We're not the target of Terrorist attacks because we have too many rights; we're the target because of our own actions, ones that we never reconsider in light of new attacks because we're too busy figuring out which rights to erode next.

As Robert Wright explained (again) in an excellent New York Times Op-Ed this week, as long as we continue to invade, bomb and occupy Muslim countries, there are going to be people (including within our country) who want to return the violence to us. That will happen no matter how repeatedly we re-write our rules of justice and acquiesce to more core liberties being taken away. But not only do we show no signs of slowing down in the behavior that causes us to be Terrorist targets, each new attack causes us to intensify that behavior through the use of the most circular logic imaginable. President Obama said this week that we must continue to fight in Afghanistan because of the recent Terrorist attacks aimed at the U.S.; of course, a primary reason there are Terrorist attacks aimed at the U.S. is because we continue to kill Muslim civilians around the world, including in Afghanistan. It's a never-ending, self-perpetuating cycle: we attack people in the Muslim world, causing Terrorist attacks aimed at the U.S., and then cite those episodes as a reason to further attack people in the Muslim world, etc.

That endless cycle would be bad enough standing alone. But it's accompanied by a relentless and still ongoing transformation of our political system. We never ask what we're doing to cause Terrorism and how we can change our actions to weaken it. We instead ask only one question each time the word Terrorism is uttered: which new rights can we get rid of now? Even after 8 years of Bush/Cheney, Americans are still finding new and creative ways to answer that question, this time by aiming it at themselves.

Source Salon.com

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