In new low, U.S. claims extrajudicial assassinations legal under domestic, international law

U.S. Attorney General Eric Holder this week laid out the Obama administration’s most comprehensive defense yet of its extrajudicial assassination policies.

Holder’s speech at Northwestern University School of Law on March 5 was notable both for its sweeping redefinitions of certain legal principles – on both the domestic and international levels – and for its skillful utilization of Orwellian doublethink to simultaneously trumpet principles of “American exceptionalism” while undermining the core values that underline those principles.

Holder boasted, for example, that “even when under attack, our actions must always be grounded on the bedrock of the Constitution – and must always be consistent with statutes, court precedent, the rule of law and our founding ideals.” He proudly cited, in particular, the Fifth Amendment to the Constitution, “which says that the government may not deprive a citizen of his or her life without due process of law.”

The attorney general then went on to rationalize the U.S. government’s systematic betrayal of the Fifth Amendment’s due process clause, particularly through its indefinite military detention policies and its program of targeted drone strikes on U.S. citizens and foreign nationals who have been designated by the Executive Branch as enemies of the United States.

This policy has been roundly condemned by human rights organizations and the international community, especially after last fall’s assassination-by-drone of U.S. citizen Anwar al-Awlaki in Yemen.

As Reuters described the assassination program last October,

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, a U.S.-born militant preacher with alleged al Qaeda connections, to the target list. He was killed by a CIA drone strike in Yemen late last month.

In his speech at Northwestern, Holder defended the process by which individuals are targeted for elimination, arguing that although it is done entirely in secret, it nevertheless follows the Fifth Amendment’s due process requirements.

“Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces,” Holder said.  “This is simply not accurate. ‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.”

However, as former State Department diplomat Peter Van Buren explained in an article at Huffington Post, Holder’s word games over due process vs. judicial process flies in the face of the original intent of the Fifth Amendment:

Like most of the Bill of Rights, the Fifth Amendment to the Constitution is beautiful in its brevity and clarity. When you are saying something true, pure, clean and right, you often do not need many words: “… nor be deprived of life, liberty, or property, without due process of law.”

There are no footnotes in the Fifth Amendment, no caveats, no secret memos, no exceptions for war, terrorism, mass rape, creation of concentration camps, acts of genocide, child torture or any evil. Those things are unnecessary, because in the beauty of what Lincoln offered to his audience as “a government of the people, by the people, for the people,” the government would be made up of us, the purpose of government was to serve us, and the government would be beholden to us. Such a government would be incapable of killing its own citizens without care and debate and open trial.

Hina Shamsi, director of the American Civil Liberties Union’s National Security Project, pointed out the inherent danger with entrusting one man – in this case the president of the United States – to decide who lives and who dies based on secret evidence without any sort of judicial review:

Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact. Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power.

In addition to arguing the constitutionality of the extrajudicial killings of American citizens, Holder also blithely asserted that the policy is in compliance with international law.

While acknowledging that “it is preferable to capture suspected terrorists where feasible,” Holder claimed “that there are instances where our government has the clear authority – and, I would argue, the responsibility – to defend the United States through the appropriate and lawful use of lethal force.”

“This principle has long been established under both U.S. and international law,” he said. Citing the President’s wartime powers purportedly authorized by Congress in 2001, he elaborated on the corresponding authority that supposedly exists on the international level:

Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law. The Constitution empowers the President to protect the nation from any imminent threat of violent attack. And international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.

This claim, however, ignores longstanding complaints from the international community over the United States’ lawless prosecution of the war on terror in general, and the drone assassination program in particular.

A 2010 United Nations report stated that a targeted killing outside of an actual battlefield “is almost never likely to be legal.” It rejected “pre-emptive self-defense” as a justification for killing terrorism suspects far from combat zones.

“This expansive and open-ended interpretation of the right to self-defense goes a long way towards destroying the prohibition on the use of armed force contained in the U.N. Charter,” said Philip Alston, the UN’s Special Rapporteur on extrajudicial, summary or arbitrary executions. “If invoked by other states, in pursuit of those they deem to be terrorists and to have attacked them, it would cause chaos.”

Failing to mention these grave concerns articulated by the international community regarding the legality of the U.S. drone program, Holder instead zeroed in on the word “assassination,” which he called a “loaded term.” He acknowledged that if these killings were considered assassinations, they would be unlawful.

“Some have called such operations ‘assassinations,’” he said.

They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.

Most definitions of “assassination” include two components: that the killing is carried out as a surprise and/or secret attack, and that it is done for political and/or religious reasons.

As the Harvard Law Review pointed out in 2006:

Black’s Law Dictionary defines assassination as ‘the act of deliberately killing someone especially a public figure, usually for hire or for political reasons.’ If termed ‘assassination,’ then attacks on leaders have been construed as prohibited by Article 23b of the Hague Convention of 1899, which outlaws ‘treacherous’ attacks on adversaries, and by the Protocol Addition to the Geneva Convention of 1949, and Relating to the Protection of Victims of International Armed Conflict (Protocol I), which prohibits attacks that rely on ‘perfidy.’

Whether the targeted drone strikes authorized by the President fall under common definitions of “assassination” is a matter of debate. Without a doubt, the strikes contain certain aspects of what are traditionally considered assassinations, in that they are deliberate, surprise, targeted killings of public figures outside of combat zones.

But regardless of the terminology used to describe the killings, the larger point is that the law explicitly prohibits extrajudicial executions, including state-sponsored assassinations, and requires that even the worst criminals be granted due process and fair trials.

In his essay “Politics and the English Language,” George Orwell observed that political prose was formed “to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.”

By separating concepts of “due process” and “judicial process,” and distinguishing unlawful “assassinations” from allegedly legal “targeted killings,” Eric Holder’s speech to Northwestern has taken this maxim to a whole new level.

The fact that the highest law enforcement official in the land was making these spurious arguments to one of the nation’s most elite law schools should send chills down the spine of anyone concerned about the future of the rule of law, and the rights of people anywhere to be protected from arbitrary, state-sanctioned, extrajudicial murder.

To sign a petition demanding that the Justice Department release all legal documents justifying targeted killing of Americans, click here.

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