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

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“The government needs a FISA warrant to eavesdrop on my phone calls but it needs nothing at all to kill me.” –Glenn Greenwald.

That’s the essence of the cri de Coeur bubbling up from a varied group of human rights advocacy groups, academics, and public service law firms, as they struggle to understand Obama’s incendiary ruling – a ruling thus far made only by the Executive Branch of government, and not yet overseen by Congress or tested in any court. Even conservative lawyers are suggesting various tweaks and more major changes to legitimize the targeted killings.

To many of the policy’s critics, Obama’s actions reveal an insatiable desire to keep expanding the power of the Executive Branch of Government, and to do so in the opaque manner the President was so critical of when he was campaigning in 2007-8. Obama, it is suggested, also maintains a keen interest in keeping his “get tough on terrorists” image that rose to prominence with the killing of Osama bin Laden.

The very existence of the Obama Administration’s “kill list” — individuals, including US citizens, who the government says have dedicated themselves to destroying Americans and US interests and who the government says may legally be killed by the government — has rocked the legal world.

For shock value alone, the heart of the policy is found in the press announcement from the American Civil Liberties Union on the day of the killings. ACLU said:

“Today in Yemen, U.S. air strikes killed American citizen Anwar al-Awlaqi. al-Awlaqi has never been charged with a crime. Last year, the ACLU and Center for Constitutional Rights represented al-Awlaqi’s father in a lawsuit challenging the government’s asserted authority to carry out ‘targeted killings’ of U.S. citizens located far from any armed conflict zone. We argued that such killings violate the Constitution and international law, but the case was dismissed in federal court last December.”

Glenn Greenwald is typical. Here he is reacting to the first lawsuit brought against President Obama in 2010. This lawsuit was thrown out of court when the judge ruled that the plaintiff — Anwar Awlaki’s father – had “no standing” to ask the court to issue an order enjoining the President from assassinating his son with no due process.

Greenwald wrote: “In court that day, the Obama DOJ raised numerous arguments, all of which were grounded in the claim that courts have no role whatsoever to play in interfering with the President’s decisions over who to assassinate as part of the ‘War on Terror’.”

Most viscerally horrifying to him? The very idea that the President claims the right not only to order Americans killed with no due process, but to do so in total secrecy beyond the reach of the courts, is as tyrannical a claim as we’ve heard in the last decade,” he charged.

The ACLU was devastated to contemplate that ruling as the end of their case. So a new case was filed, this time a partnership between the ACLU and the Center for Constitutional Rights (CCR). “This suit is an effort to enforce the Constitution’s most fundamental guarantee, the guarantee of due process,” said Jamil Jaffer, deputy legal director of the ACLU, on a conference call with reporters. “Ten years ago extrajudicial killing by the United States was exceptional. Now it’s routine.”

The lawsuit contends that the United States government violated the constitutional rights of the three men by killing them without court review outside of an active war zone.

The Obama administration has contended that it has the authority to target suspected members of al-Qaeda outside the conflict in Afghanistan and Pakistan, particularly if a given individual poses what it calls an “imminent threat.”

But the ACLU-CCR lawyers believe their chances for getting a hearing are better this time than from the first case brought. This is because their clients, in losing their loved ones, suffered a concrete injury that can’t be denied, and because of the more frank public acknowledgements by administration officials of the targeted killing program’s existence. The latter, the lawyers argue, will make it more difficult for the government to contend the matter is a state secret.

“What they would be saying is, that they have the authority not just to kill American citizens who are deemed to be enemies of the state, and not just that they have the authority to kill citizens without explaining why they’ve done it, but even that they have the authority to kill citizens without even acknowledging their role in it,” Jaffer said. “If the previous administration had proposed a policy of that kind, it’s inconceivable that we would have accepted it.”

Hina Shamsi of the ACLU told Prism, “The case turns on the killing now having been carried out — there is no question that there is standing now. This lawsuit also raises different issues and claims as a result”.

Glenn Greenwald said the current case saw the Obama DOJ raising numerous arguments, all of which were grounded in the claim that courts have no role whatsoever to play in interfering with the President’s decisions over whom to assassinate as part of the ‘War on Terror.’

He continued: “Along with several others, I focused on the DOJ’s invocation of the “state secret” privilege because that was most viscerally horrifying: the very idea that the President claims the right not only to order Americans killed with no due process, but to do so in total secrecy beyond the reach of the courts, as tyrannical a claim as we’ve heard in the last decade.”

This was precisely what Obama critics found so utterly grotesque. The Obama Administration would use the ‘State Secrets’ privilege to deny the court any details of the targeted killing operation. As ACLU lawyer Ben Wizner pointed out, it would be the first time a president – any president – had used the privilege to protect and conceal its own policies.

Wizner suggests that the al-Awlaqi case represents a new chapter in Obama-era state secrets invocation. He told Prism, “This is the first time that I am aware of that the [Obama] administration has invoked state secrets in defense of its own policies.”

The policies Wizner refers to are the administration’s asserted authority to use lethal force away from the battlefield — including against US civilians who have not been charged with any crime.

It is this claim – plus some peripheral claims concerning collateral damages – that is giving apoplexy to human rights defenders. Word from the White House is that the Obama Administration will define as “collateral damage” any military-age males found in the immediate area of the drone attack. These could be shoppers, families on their way to the clinic, kids going to school, just about anything, so long as they were close enough to the action to be killed because of it.

Other advocates were equally incensed. Marjorie Cohn, a professor at the Thomas Jefferson Law School, told Prism, “Drone attacks violate international law. A targeted killing is defined as the “intentional, premeditated, and deliberate use of lethal force. against a specific individual who is not in the physical custody of the perpetrator. Drone strikes are also counterproductive. They breed increased resentment against the United States and lead to the recruitment of more terrorists.”

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