From the Editors
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[This is the fifth part of a six-part series associated with a Jadaliyya roundtable discussing targeted killings . Participants include Richard Falk, Nathan Freed Wessler, Pardiss Kabriaei, Leonard Small, and Lisa Hajjar. Click here for the introduction to the roundtable.]
Three US citizens were killed in Yemen in 2011 by drone strikes carried out under the auspices of the government’s targeted killing program. They were neither charged with any crime nor brought before a judge. The killings were carried out by the executive branch acting alone, with no oversight from the courts and no public presentation of evidence. At least two more US citizens are reportedly on government “kill lists,” along with numerous alleged terrorism suspects of other nationalities. As long as they remain on the lists, they, too, can be killed with no warning, no meaningful due process, and no oversight.
The US government’s claim of authority to carry out targeted killings around the world, far from active battlefields and without external checks, is momentous, but there is little public information about the details of its targeted killing program. Much of what is available consists of anonymous leaks to the press by government officials. Recently, President Obama publicly acknowledged the targeted killing program and a few details about it. Yet when faced with calls for further transparency, the US government continues to refuse to officially disclose details about the policy of targeted killings abroad.
In her essay titled “Lawfare and Targeted Killing,” Lisa Hajjar explains that one aspect of the US government’s efforts to ensure “legal immunity” for its targeted killing program “derives from the clandestine nature of these operations and the invocation of states secrets.” The government has deployed this reasoning as a shield against litigation challenging the targeted killing program in two contexts. First, the government invoked the “state secrets privilege,” a doctrine designed to protect classified information, to dismiss a lawsuit brought by the American Civil Liberties Union (ACLU) and Center for Constitutional Rights (CCR) asking a court to place limits on the government’s authority to target and kill US citizen Anwar al-Aulaqi. Second, the government used similar reasoning to oppose two Freedom of Information Act (FOIA) lawsuits brought by the ACLU seeking information about the scope, legal rationale, and factual basis of the targeted killing program. Although the government asserts that its targeted killing program remains “clandestine,” that claim is belied by the repeated official statements lauding the targeted killing program in public.
Obama’s Public Acknowledgment
On 30 January 2012, President Obama took questions on a live internet video forum organized by Google+ and YouTube. He acknowledged that the US carries out targeted killings using drones in Pakistan, that it targets persons who are on a list of “active terrorists,” and that it goes after “al-Qaeda suspects.” He also asserted that the program is “kept on a very tight leash” and claimed that “drones have not caused a huge number of civilian casualties.” Other US government officials have also made public remarks about aspects of the targeted killing program. In a January appearance on national television, for example, Secretary of Defense Leon Panetta acknowledged that the US can and does carry out targeted killings of US citizens pursuant to the president’s authorization. In February, Defense Department general counsel Jeh Johnson asserted in a public speech that the government can pursue suspected terrorists “without a geographic limitation” and that “US citizens do not enjoy immunity” from targeted killing. Last June, President Obama’s counter-terrorism advisor, John Brennan, implausibly asserted that the US targeted killing program had not caused “a single collateral death” in the preceding year. Just this week, Attorney General Eric Holder outlined the legal authority under which the government claims it can target and kill US citizens overseas.
In one sense, the president’s discussion of targeted killing was unremarkable because it provided no new information. The press has long reported on the CIA’s and US military’s targeted killing programs, often based on statements of “anonymous” government officials, and the publicly reported information far outstrips the tidbits disclosed by the president and other administration officials. The press has reported, for example, that the US has carried out targeted killings using drones in a number of countries, including Afghanistan, Pakistan, Yemen, and Somalia. We know that the CIA and the military’s Joint Special Operations Command (JSOC) maintain separate lists of people who the agencies have authority to hunt down and kill. Reports have described the secret bureaucratic process by which names are placed on the lists. And several organizations maintain running tallies of the number and location of drone strikes and the numbers of civilians killed. The US government’s targeted killing program is hardly a secret.
Yet, the President’s statement marked the first time he officially acknowledged, in an attributed statement, that the CIA carries out targeted killings by drone in Pakistan and that the agency maintains a kill list for that purpose. When directly confronted, the government has stubbornly maintained the fiction that the very existence of the CIA’s targeted killing program is a state secret and that basic information about the military’s program cannot be revealed.
Public Killings, “Secret” Program
On 30 September 2011, Anwar al-Aulaqi, a US citizen who reportedly had been placed on the government’s kill lists, was executed in a joint CIA-JSOC drone strike in Yemen. Another US citizen, Samir Khan, died in the same attack. Two weeks later, al-Aulaqi’s 16-year-old son, Abdulrahman al-Aulaqi—also a US citizen—and his 17-year-old Yemeni cousin were killed in a military drone strike elsewhere in Yemen. Although the president and other members of the administration claimed credit for their success in killing al-Aulaqi, they have refused thus far to provide an account of the legal basis on which they assert the power to kill US citizens suspected of involvement in terrorism. They also have failed to present any evidence justifying al-Aulaqi’s targeting, except to vaguely assert that he “took the lead in planning and directing efforts to murder innocent Americans.”
Although the Obama administration has been eager to use the death of al-Aulaqi and its broader targeted killing program to bolster its counterterrorism credentials, the US government has responded to litigation seeking accountability and transparency with broad claims of secrecy. In early 2010, the ACLU filed a FOIA request seeking disclosure of the legal basis for the government’s use of drones to conduct targeted killings overseas, as well as data regarding the number of civilians and non-civilians killed in the strikes. In response, the CIA flatly refused to confirm or deny the existence or nonexistence of any such records, claiming that even the fact that a targeted killing program exists cannot be acknowledged.
Later in 2010, the ACLU and CCR filed a lawsuit on behalf of al-Aulaqi’s father asking the court to force the US government to reveal the criteria it used to place al-Aulaqi on the kill lists and to prevent the government from using lethal force away from an active battlefield except in situations where a person poses an imminent or immediate threat of injury to others, as required by US and international law. To date, the government has neither explained whether it abides by this imminence standard nor offered evidence that al-Aulaqi actually posed an imminent threat. In response to the lawsuit, the government asserted the state secrets privilege, claiming that information about the targeted killing program was so secret that the whole lawsuit must be dismissed to avoid risking disclosure of classified information. The court dismissed the case on separate national security-related jurisdictional grounds.
Shortly after al-Aulaqi was killed, the New York Times published a detailed description, based on information from those ubiquitous anonymous government officials, of a secret memorandum by the Department of Justice Office of Legal Counsel (OLC) providing the US government’s legal justifications for targeting al-Aulaqi. The story resulted in calls from across the political spectrum to release the actual memo or officially and publicly explain its legal reasoning. When the government failed to make public its legal arguments for the targeted killings of its own citizens, the ACLU submitted a new FOIA request seeking disclosure of the OLC memo, information about the process by which the administration adds Americans to kill lists, the evidentiary basis for targeting al-Aulaqi, and the factual basis for the killings of the other two US citizens. After the OLC and CIA baldly refused to confirm or deny whether any such memo or other relevant document even exists, the ACLU filed suit. (The Times also filed a FOIA lawsuit seeking the OLC memo.) Both lawsuits are currently pending in US federal courts.
The Need for Transparency
The US government has claimed a chilling and far-reaching power to kill US citizens and others far from any battlefield, without judicial oversight, and in secret. The executive branch has developed a secret bureaucracy of killing, complete with a secret government panel that identifies names of suspected terrorists, secret lists of people to be targeted for death, secret legal opinions, and secret presidential authorizations to kill. This program deserves, and requires, public oversight and debate.
As Hajjar points out, however, the government has not responded to calls for accountability and transparency by publicly justifying the legality of the targeted killing program or defending it in court. Rather, consistent with the model of “state lawfare” she describes, it has aggressively asserted that accountability mechanisms are completely inapplicable. To this end, Defense Department general counsel Jeh Johnson recently stated that courts should have no role in reviewing the legality of “targeting decisions” and the “application of lethal force” in the targeted killing context. Attorney General Holder elaborated on this position on March 5 when he argued that courts should not be allowed to enforce the constitutional right to due process for US citizens subject to targeted killing. In the government’s view, the secret deliberations of executive branch officials should be sufficient.
In an open and democratic society, it is not enough for the government merely to assure the public that it is acting within the law when it seeks to kill. Only when the government is compelled to face real transparency can the legality, legitimacy, and wisdom of the targeted killing program truly be put to the test. Courts have thus far accepted the US government’s claims of official secrecy to insulate itself from criticism, but the government’s selective leaks and acknowledgments about the targeted killing program have reached a critical mass. Courts should no longer accept the cynical claim that the very existence of a targeted killing program continues to be secret, or that judges should have no role in holding the government to account.
Jadaliyya Roundtable on Targeted Killings:
Part III: Lawyering and Targeted Killing
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