The Kill List: When Obama Becomes Judge, Jury and Executioner

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Amnesty USA came down hard on the Administration. In a special report, it wrote, “The picture slowly emerging gives grounds to conclude that US policies and practices are unlawful, violating the fundamental human right not to be arbitrarily deprived of one’s life.”

Another advocacy group, Human Rights First, predicted that “the Obama Administration’s policy on targeted killings will not be seen as legitimate until the Administration makes clear which groups it believes we’re at war with and how it defines who is a legitimate target for killing as part of the U.S. war strategy,” said Human Rights First’s Daphne Eviatar.

She said the 2001 Authorization for the Use of Military Force allowed the U.S. military to wage war against “those nations, organizations, or persons” who the president determined “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”

“Osama bin Laden is dead and al-Qaeda has been decimated and driven from Afghanistan. If the United States is expanding the list of targetable groups and individuals beyond those who were responsible for the 9/11 attacks, it needs to make that clear, and to provide a justification for why such attacks are lawful,” said Eviatar. “So far it has failed to do that.”

Elisa Massimino, CEO of Human Rights Watch, called on Obama to immediately clarify that “international law does not permit the targeting of any member of a terrorist group with which we claim to be at war and does not permit the targeting of individuals merely because they are seen to be associating with members of a terrorist group”

The “mechanics” of the drone strikes are still emerging and the Obama administration appears to be on a high-powered vendetta against the very whisteblowers the president pledged to protect. Anonymous sources speculate that “American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.”

“There is no public record of the operations or decisions of the panel, which is a subset of the White House’s National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.”

“The panel was behind the decision to add Awlaki to the target list.”

There have also been some voices of approval as well as condemnation. One of them belongs to John Brennan, Obama’s chief of counter intelligence. He said:

“Yes, in full accordance with the law — and in order to prevent terrorist attacks on the United States and to save American lives — the United States government conducts targeted strikes against specific al-Qaeda terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones,” Brennan said before the Woodrow Wilson International Center for Scholars.

“The use of armed drones to strike at suspected militants in places like Pakistan and Yemen has grown dramatically under the Obama administration, and the emergence of the new technology — which has sharply reduced the cost and risk of warfare to its operators, making it easier to engage in sporadic combat in far-flung regions — has led to growing concerns both about civilian casualties and about a future in which other countries also acquire drones,” he said.

The United States government has been reluctant to talk openly about its use of drones, apparently in part because foreign governments that granted permission for strikes did so on the condition that the deals would remain secret.

Defending drone strikes as “legal, ethical, and wise,” Brennan said the president had directed officials to be more open about how they “carefully, deliberately and responsibly” decide to kill terrorism suspects — including what he described as “the rigorous standards and process of review to which we hold ourselves today when considering and authorizing strikes against a specific member of al-Qaeda outside the ‘hot’ battlefield of Afghanistan.”

Brennan also said the administration preferred capturing such suspects alive — usually by telling a foreign government where to arrest them — and would authorize a strike only if that was not feasible.

The killing of civilians by drones has fueled anti-American sentiment, especially in Pakistan. The number of such deaths — especially in remote regions where it is difficult for neutral observers to investigate — has been hotly disputed. American officials have described such deaths as rare, while critics have said there are far more than the government acknowledges.

Brennan said American citizens who join al-Qaeda may also be targeted — after extra internal review, but he did not mention the killing of the three Americans in drone strikes in Yemen last year.

The Obama administration is fighting to avoid disclosing information related to the targeted killing operations under the Freedom of Information Act, including FOIA lawsuits filed by The New York Times.

A number of counterterrorism professionals and academics have proffered limited approval of the kill list policy. Writing in the journal of the American Bar Association, Amos Guiora, an Israeli-American professor of law at The S. J. Quinney College of Law at the University of Utah, and an expert on drone attacks, declares, “While I believe the Al-Awlaki killing lawful, I am deeply troubled by the broad rationale articulated by the Obama Administration. Yes, the Al-Awlaki killing reflects aggressive self-defense coupled with a respect for the obligation to minimize collateral damage. However, the Administration failed to articulate exactly how, beyond mere speech, Al-Awlaki was connected to terrorist activity. The mere ‘likelihood’ of membership in a terrorist organization is highly problematic.”

Comments like these can be seen as constructive efforts to make the targeted kill program respectable in the eyes of the law – a goal that remains murky and confused. With a very long way to go. And it is difficult to forget that in the course of research for this article, the phrase heard most often was:

“If they want to intercept my phone calls or my emails, they need to get an order from the FISA court. If they just want to kill me, they don’t need to get any orders from anybody.” Isn’t there just plain something wrong with that construct?

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