Legal Case for Due-Process-Free Murders: Indefinite War Without Borders
The Obama administration believes that secret executive branch reviews fulfill constitutional due process requirements for when they decide to target suspected al Qaeda leaders even if those individuals are U.S. citizens, according to statements on Monday from Attorney General Eric Holder.
“Due process and judicial process are not one and the same, particularly when it comes to national security,” Holder said. “The Constitution guarantees due process, not judicial process.”
The Obama administration’s rampant use of unmanned aerial vehicles to conduct assassinations of state enemies has been challenged by some as constituting unlawful killing, or assassination. Holder denied this was the case on the argument that only individuals who present an imminent threat of attack are targeted for these killings-by-executive decree.
“Some have called such operations ‘assassinations.’ They are not, and the use of that loaded term is misplaced.” Holder argued. “Assassinations are unlawful killings…the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.”
But this doesn’t speak to, for example, the administration’s killing people in northwest Pakistan “who had gone to help rescue victims or were attending funerals,” which the Bureau of Investigative Journalism found to be a deliberate policy of the Obama administration. The high-end estimate for total casualties in the U.S. drone war in Pakistan, according to the Bureau, is 3,019, including up to 815 civilians (175 of them children).
“Not to mince words here, if it is not in a situation of armed conflict, unless it falls into the very narrow area of imminent threat then it is an extra-judicial execution,” Naz Modirzadeh, Associate Director of the Program on Humanitarian Policy and Conflict Research (HPCR) at Harvard University, said. “We don’t even need to get to the nuance of who’s who, and are people there for rescue or not. Because each death is illegal. Each death is a murder in that case.”
Of course the problem with Holder’s argument is that the Executive’s decree that an individual is a threat need be backed up by nothing at all. In order to hold that individuals – including U.S. citizens – can be killed unilaterally by the president, Holder had to claim “the operation was conducted in line with war principles.” But in order to accept that, one has to accept that the U.S. is at war indefinitely and without territorial boundaries.
The argument, clearly anathema to the Constitution’s mandates and the spirit of checks and balances, has gained slightly more attention since September of last year when Anwar al-Awlaki, an alleged member of al-Qaeda, was one of three U.S. citizens murdered from the sky in one of Obama’s drones.
Holder would not speak to the specific case of the Awlaki murder, but stated that the administration holds as a requirement for targeted assassination that individuals cannot feasibly be captured. But that’s probably not the case with Awlaki. The American Civil Liberties Union filed a lawsuit with the Obama administration on behalf of the father of Awlaki who objected to his being on a “kill list.” Awlaki resided in a country with a U.S.-allied government and extradition could conceivably have taken place. But the Obama administration had the case dismissed on a technicality.
The war on terror is being used as an excuse to disregard the right of individuals, even U.S. citizens, to defend themselves in court against accusations made in secret by the government. The authors of the Constitution explicitly denounced such behavior and made it illegal. Unfortunately, there is little chance the political leadership in America will be tried and prosecuted for these crimes.
Update: Kevin Gosztola points out Holder’s legal justification “wholly ignores Justice Sandra Day O’Connor, who declared in the Supreme Court ruling on the Hamdi v. Rumsfeld case that ‘a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.’”