October 7, 2011
It is now an undisputed fact, confirmed by President Obama: the United States has executed two American citizens far away from zones of actual armed conflict and without due process. More than anything, the targeted killings of Anwar al-Awlaki and Samir Khan in Yemen represent serious challenges to the United States’ reputation for abiding by the rule of law. The killings further complicate US foreign policy in a region currently witnessing bloody revolutions and uprisings motivated by a desire for stronger protection of human rights. It is hard to escape the impression that Obama’s unlawful targeted killings program will ultimately stain this administration’s legacy much like the torture and Guantanamo programs tainted that of the Bush Administration, at least in so far as both administrations have violated international law and evaded transparency and accountability for human rights.
The Obama administration’s rhetoric regarding targeted killings is reminiscent of both the Bush administration’s mantra of "we don’t torture" and its claim that all detainees and prisoners in US custody were treated humanely and in line with domestic laws and applicable treaty obligations. The Bush Administraton spread this misleading legal analysis and lie all over the world, from testimonies in front of Congress to statements at the U.N. Committee against Torture. We now know the ugly truth that the highest levels of American government, including President Bush and Vice President Cheney, sanctioned torture, widespread cruelty and abuse in violation of international law. While not identical by any means, over the past three years the Obama Administration has engaged in similar practices. Consider its repeated mantra of "trust us" arguing that "US targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war."
Notably, the Obama Administration has refused to disclose the legal criteria it uses to make its targeted killing decisions. Instead, its legal memos that provide legal authorization for targeted killings continue to be classified. Moreover, the US continues to ignore domestic and international inquiries about the legality of the program and its lack of full transparency and accountability. These inquiries have included calls from close European allies. Refusal to respond to German inquiries has even prompted the European country to withhold intelligence from the US out of concern over associating with potentially illegal foreign offensives that might result in drone strikes killing German citizens in Pakistan. The Obama Administration has yet to disclose its position on whether human rights law is applicable to its military and counter-terrorism operations overseas – a legal and policy position many European allies would like the US to adopt in order to comply with the International Covenant on Civil and Political Rights, which the US ratified in 1992. The American public and the international community are left in the dark, wondering how the US government could claim an unchecked and expansive authority to impose death sentences on people who are far from any battlefield and who have never been convicted of or even charged with a crime.
So what does international law say about targeted killings?
According to a 2010 global study by the UN Special Rapporteur on extrajudicial killings, while the phenomena of "targeted killing" has been present throughout history, the term is not defined under international law. The term became more common in 2000, after Israel made public a targeted killings policy aimed at those Palestinians in the West Bank and Gaza Strip suspected of involvement with attacks against Israeli forces and civilians. Other countries that may have used targeted killings include Russia, Sri Lanka, and Turkey. Whether or not a specific targeted killing is legal depends on the context in which it is conducted: whether in armed conflict, outside armed conflict, or in relation to the interstate use of force.
As we communicated to President Obama in a April 2010 letter, the US is engaged in a non-international armed conflict in Afghanistan and Iraq and the lawfulness of its actions must be judged in that context. The targeted killings program that continues to be highly classified appears to envision the use of lethal force not just on the battlefields in Iraq, Afghanistan, or even Pakistani border regions, but anywhere in the world, and even against individuals who may not constitute lawful targets. Despite its assertions to the contrary, the whole world is not a war zone because the US claimed it to be such. This fact does not change simply because the country has declared that it is engaged in a global armed conflict against loosely defined terrorist entities and undefined "associated forces." Wartime tactics that may be permitted on the battlefields in Afghanistan and Iraq cannot be deployed anywhere in the world where a suspected terrorist happens to be located.
Even in an armed conflict zone, individuals may be targeted only if they take a direct part in hostilities, for such time as they do so, or if they have taken up a continuous combat function. Propagandists, financiers, and other non-combat "supporters" of hostile groups cannot lawfully be targeted with lethal force. Applicable international humanitarian law also prohibits targeted killing except in order to prevent an individual's future participation in hostilities; individuals cannot be targeted solely as retribution for past actions. Furthermore, basic law-of-armed-conflict principles require that in such operations, civilians who are not taking direct part in hostilities must not be targeted, precautions must always be taken to spare the civilian population, anticipated civilian casualties must never be disproportionate to the expected concrete military advantage, and strikes must only occur when required by military necessity.
Outside of armed conflict zones, the use of lethal force by the United States is strictly limited by international human rights law and, in some circumstances, the U.S. Constitution. These laws permit lethal force only as a last resort and only to prevent imminent attacks that are likely to cause death or serious physical injury. The U.S. targeted killings program is based on "kill lists" to which names are added, sometimes for months at a time, after a secret internal process led by the White House National Security Council. Such a program of long-premeditated and bureaucratized killing is plainly not limited to targeting genuinely imminent threats.
Last December, a federal court dismissed a lawsuit filed by the ACLU and the Center for Constitutional Rights on behalf of Mr. al Awlaki’s father which challenged the U.S. targeted killings program and asked to order the government to disclose the legal standard it uses to place U.S. citizens on government kill lists. Although the court acknowledged the serious issues raised by the lawsuit it dismissed the case on the grounds that the plaintiff did not have legal standing to challenge the targeting of his son, and that the case raised political questions not subject to court review. The Obama administration argued that the President should have unreviewable authority to kill individuals, including American citizens, he has unilaterally determined to pose a threat outside combat zones.
Despite granting the government's motion to dismiss the case, Judge John Bates of the U.S. District Court for the District of Columbia called the case "unique and extraordinary," said it presented "[s]tark, and perplexing, questions" and found that the merits "present fundamental questions of separation of powers involving the proper role of the courts in our constitutional structure." Ultimately, however, he dismissed the case on procedural grounds and found that "the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day…"
The US targeted killings program is not simply illegal but also unwise. The means and standards by which the US responds to the threat of terrorism will in large measure determine the rules that govern the conduct of all nations in other similar contexts. If the United States claims the authority to use lethal force – with unmanned drones, for instance – against its suspected enemies anywhere in the world, then other countries will regard such conduct as justifiable. The prospect of present and future foreign governments, like those of China or Iran, hunting and killing their enemies within US borders, or within the borders of other countries, would understandably be quite abhorrent.
The US targeted killings program risks the deaths of innocent people. Over the last nine years, the U.S. government has systematically detained men on terrorist charges only to discover later that condemning evidence was weak, wrong, or non-existent. Of the many hundreds of individuals previously detained at Guantánamo, the vast majority were either released or are currently awaiting release. Furthermore, the U.S. government has failed to prove the lawfulness of imprisoning individual Guantánamo detainees in thirty-seven of the fifty-seven cases that have been reviewed by the federal courts thus far. This notwithstanding the fact that the government had years to gather and analyze evidence for those cases and had itself determined that there was legitimate reason to detain those prisoners. This experience alone should have led the Obama administration to immediately reject a program that would invest the C.I.A. or the US military with the unchecked authority to impose an extrajudicial death sentence on US citizens far from any actual battlefield.
The sad reality is that even though the Obama administration prides itself on ending the Bush administration’s policies of torture and secret detention (although the latter is highly disputed, especially in light of new evidence suggesting the existence of a CIA "proxy detention" scheme in a secret detention facility in Somalia) this administration continued and grossly expanded a troubling and legally flawed policy: the targeted killings program. Extrajudicial killings will further entrench U.S. doublespeak about transparency and accountability for human rights. And even more disastrous, they will undermine the global rule of law, creating an easily exploitable legal chaos in which we risk the realization of a world that is much less safe and free.