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Here's Why The U.S. Government Thinks It Can Kill You Overseas

 March 06, 2012 09:17 AM

This is bad. Very bad.

Spencer Ackerman:

Here's Why the Government Thinks It Can Kill You Overseas: The Obama administration calls it "targeted killing." Steven Seagal would call it getting marked for death. It's the practice of singling out an individual, linked to a terrorist group, for killing, and it's been played out hundreds of times in the 9/11 era — including, more recently, against U.S. citizens like al-Qaida's YouTube preacher, Anwar al-Awlaki. The Obama team has said next to nothing about how it works or what laws restrict it. Until Monday.

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Attorney General Eric Holder explained the administration's reasoning for killing American citizens overseas…. Holder claimed that the government can kill "a U.S. citizen who is a senior operational leader of al-Qaida or associated forces" provided the government — unilaterally — determines that citizen poses "an imminent threat of violent attack"; he can't be captured; and "law of war principles," like the use of proportional force and the minimization of collateral damage, apply….

The debate over killing Awlaki… began long before a Hellfire missile fired from a drone killed him and fellow propagandist Samir Khan in September…. For months after Awlaki's killing, the government never disclosed any evidence supporting its decision that Awlaki posed an imminent danger to Americans…. Several legal scholars have wondered why the U.S. didn't have to provide Awlaki with due process of law before killing him, as stipulated under the Fifth Amendment. Holder contended that the U.S. actually did — even if no judge ever heard Awlaki's case.

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"The Constitution's guarantee of due process is ironclad, and it is essential — but, as a recent court decision makes clear," Holder argued, "it does not require judicial approval before 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 U.S. citizen."

Holder left several aspects of his argument unexplained. He did not define the terms "senior operational leader" of al-Qaida, nor what it means to be an "affiliate" of the amorphous group. The attorney general only referred to the drones through the euphemism….

Holder did not explain how a missile strike represents due process, or what the standards for due process the government must meet when killing a U.S. citizen abroad. Holder did not explain why the government can only target U.S. citizens suspected of terrorism for death overseas and not domestically.

The decision to kill an American, Holder said, is "among the gravest that government leaders can face." Targeted killing is not assassination, he argued, because "assassinations are unlawful killings." Among the few external limitations on the government's war power that Holder mentioned were the approval of a local government where the strikes occur — which must have pleased reluctant, unsteady U.S. allies in Pakistan and Yemen — and the after-the-fact disclosure of the strikes to Congress.

Some members of Congress do not consider that a sufficient safeguard.

"The government should explain exactly how much evidence the president needs in order to decide that a particular American is part of a terrorist group," says Sen. Ron Wyden, an Oregon Democrat who sits on the Senate's intelligence committee. "It is also unclear to me whether individual Americans must be given the opportunity to surrender before lethal force is used against them. And I'm particularly concerned that the geographic boundaries of this authority have not been clearly laid out. And based on what I've heard so far, I can't tell whether or not the Justice Department's legal arguments would allow the President to order intelligence agencies to kill an American inside the United States."

Mary Ellen O'Connell, the vice president of the American Society of International Law, found Holder's legal rationale flimsy…



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