US Feature: Obama Administration "Why We Can Kill US Citizens Without Judicial Process" (Reilly and Zenko)

Ryan J Reilly, writing for Talking Points Memo, reported this week:

The Obama administration believes that executive branch reviews of evidence against suspected al-Qaeda leaders before they are targeted for killing meet the constitution’s “due process” requirement and that American citizenship alone doesn’t protect individuals from being killed, Attorney General Eric Holder said in a speech Monday.

“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.”

Broadly outlining the guidelines the Obama administration has used to conduct lethal drone stikes overseas, Holder said the U.S. government could legally target a senior operational al Qaeda leader who is actively engaged in planning to kill Americans if the individual (1) posed an imminent threat of violence; (2) could not feasibly be captured; and (3) if the operation was conducted in line with war principles.

Such a use of lethal force against that type of individual, Holder said, wouldn’t violate the executive order banning assassinations or criminal statues because such an act would be in “self defense.” In remarks delivered at Northwestern University Law School in Chicago, Holder also said that targeted killings are not “assassinations,” adding that the “use of that loaded term is misplaced” because assassinations are “unlawful killings” while targeted strikes are conducted lawfully.

Micah Zenko takes apart Holder and the Administration in his blog for the Council on Foreign Relations:

Over the past few years, I have been fortunate to speak with a number of dedicated and thoughtful officials in the executive branch about U.S. targeted killing policies. Due to the highly-classified nature of these policies and operations that involve intelligence collection and analysis, these officials are appropriately limited in what they can reveal about the rationale, process, and scope of who the U.S. government can kill.

Nevertheless, over the course of these informal discussions and interviews, two common threads emerged. First, “There are terrorists plotting to kill Americans, and those threats must be dealt with.” Second, “I can’t get into anything operational, but I can assure you that there is a careful and deliberate process by which individuals are deemed to be threats based on strict criteria.” Without a security clearance to corroborate and verify these statements, the defense of U.S. targeted killing policies boils down to “trust me.”

Yesterday, Attorney General Eric Holder gave a policy speech at Northwestern University Law School, in which he echoed what I have heard one-on-one. Once a government publicly acknowledges and defends—albeit in a very limited manner—an intelligence or military program, it creates architecture of justification and precedence for which it can be held accountable.

Let’s break down some of the arguments put forth by the attorney general:

HOLDER: “It is preferable to capture suspected terrorists where feasible—among other reasons, so that we can gather valuable intelligence from them.”

Of course, this statement begs the question: if that is true, why has the United States largely stopped capturing and detaining terrorist suspects? In Pakistan after 9/11, the U.S. counterterrorism strategy focused primarily on law enforcement and intelligence exploitation through arrest and interrogation (including torture). According to the State Department’s report, Patterns of Global Terrorism: 2002: “The Government of Pakistan arrested and transferred to U.S. custody nearly 500 suspected al-Qaida and Taliban terrorists.” By 2004, however, the United States virtually discontinued this practice, and instead began killing terrorists with armed Predator drones.

Part of the reason that the Bush and Obama administrations have nearly halted the extraordinary rendition program is because the White House and the Congress cannot reach an agreement on the legal process by which terrorist suspects will be detained and tried. In his recent book Intel Wars: The Secret History of the Fight Against Terror, Matthew Aid quotes a senior U.S. intelligence official in 2009: “Capturing al-Qaeda officials is a bother. It is so much easier to just kill ‘em when you can find them.”

HOLDER: “The use of force in foreign territory would be consistent with these international legal principles if conducted, for example, 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 happens in the case of a state for which there is no government? In Somalia, for instance, where the U.S. military has conducted drone operations, the CIA’s Chiefs of State and Cabinet Members of Foreign Governments listing states: “Somalia has lacked any internationally recognized central government since the fall of the Siad Barre regime in 1991.” In May 2011, a nominal “prime minister” of Somalia’s Transitional Federal Government said he would welcome U.S. special operations raids, but his writ does not extend beyond the capital of Mogadishu or whatever territory the AMISOM troops hold.

Second, what are the criteria by which the executive branch determines that another country is “unable or unwilling” to take measures against suspected terrorist threats? There are a vast range of threats posed by transnational organized crime that could technically fall under this designation. In an extreme example, in 2009 the Government Accountability Office foundthat 87 percent of traceable arms seized in Mexico originated in the United States; between 2005 and 2010, the homicide rate in Mexico increased by nearly 65 percent, peaking at 20,500 murders in 2010. Would the Mexican government be justified in conducting military operations in the United States to limit the trafficking of weapons, since the U.S. government has failed to prevent it thus far?

HOLDER: “An individual’s interest in making sure that the government does not target him erroneously could not be more significant.”

This incredible assertion speaks for itself, but Holder could have provided some tips for how an individual—who most likely does not know that he’s been targeted—corrects the error.

HOLDER: “In keeping with the law and our constitutional system of checks and balances, the executive branch regularly informs the appropriate members of Congress about our counterterrorism activities.”

Here he is primarily referring to the Senate and House intelligence committees, to which Title 50 “covert” operations must be reported. However, according to former committee chairs such as Senator Bob Graham and Representative Jane Harmon, the level of information that the executive branch provides to these committee is insufficient. Moreover, as reported in the Washington Post yesterday, “A committee staff member works full time to review covert action plans, and the whole committee meets once a quarter for a closed hearing on this most sensitive topic.” In essence: one staffer reviews U.S. covert operations, and twenty members of the committee meet every four months?

Other committees play an oversight role, including for Title 10 military operations conducted by Joint Special Operations Command. These can include waived Special Access Programs that are only reported to the chairman and ranking minority member of the House and Senate Committees of the Armed Services and Appropriations, and Defense Subcommittee on Appropriations. In total, six members of Congress.

Beyond these are the Senate Foreign Relations Committee and House Foreign Affairs Committee, which are supposed to provide oversight of all U.S. foreign policy activities. However, some members and staffers have repeatedly stated that, due to the lack of proper security clearances, they have very little knowledge of the U.S. policies for targeted killings, or how such policies are integrated into a more comprehensive strategy.

In June 2008, Eric Holder gave the keynote address to annual convention of theprogressive-leaning American Constitution Society for Law and Policy. In his speech, Holder strongly criticized several aspects of the Bush administration’s counterterrorism policies, including the claim that the executive branch had the right to eavesdrop on U.S. citizens without judicial review: “To those in the Executive branch who say ‘just trust us’ when it comes to secret and warrantless surveillance of domestic communications I say remember your history.”

Many Americans didn’t trust the Bush administration reading their emails, and they should be even more skeptical of the current administration and the targeted killings of citizens and non-citizens.