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Pentagon Lawyer: Obama Is Above the Law: Can Order Anyone Killed, Anywhere, Anytime


February 24, 2012
AntiWar.com & The New York Times

In a recent public address, the Obama administration's top Pentagon lawyer declared that the President is above the law. If the administration concludes someone is a part of al-Qaeda or an "associated force," Jeh C. Johnson explained, they can be executed or detained without trial or judicial review. "Belligerents who also happen to be US citizens do not enjoy immunity," Johnson stated.

http://news.antiwar.com/2012/02/23/obama-lawyer-no-court-can-challenge-extrajudicial-execution-at-presidents-whim/

Obama Lawyer:
No Court Can Challenge
Extrajudicial Execution at President's Whim

John Glaser / AntiWar.com

WASHINGTON (February 23, 2012) -- The Obama administration's top Pentagon lawyer on Wednesday said that courts have no business questioning executive branch decisions about whom to target for extra-judicial execution in the war on terror, even if that target is an American citizen. [See story below.]

"Belligerents who also happen to be US citizens do not enjoy immunity where non-citizen belligerents are valid military objectives," said Jeh C. Johnson, the Defense Department general counsel, in a speech at Yale Law School.

While the Obama administration's policy here is not new -- they've been conducting a drone war and assassinating US citizens and non-citizens without ever providing the public evidence of those targets' guilt -- it was rare for an administration official to so publicly declare it like Johnson did. [See story below.]

Johnson would not speak to specific cases, but he did bring up the administration's killing of American citizen Anwar al-Awlaki in Yemen last year. He mentioned that a district judge's decision to dismiss a case brought by Awlaki's father to prevent his son's due-process-free assassination was the right decision because targeting decisions are none of the court's business.

If the administration concludes someone is a part of al-Qaeda or an "associated force," Johnson explained, they can be executed or detained without trial or judicial review. Johnson argued the authority for this comes from the authorization for the use of military force against the perpetrators of 9/11, passed by Congress one week after the attacks.

Johnson said nothing in that statute limited the war against al-Qaeda and its allies to the so-called "hot" battlefield zone of Afghanistan. So, the Obama administration has claimed the authority to kill or capture without charge or trial any individual it alone deems a terrorist, anywhere in the world, without any judicial review.



Pentagon Says US Citizens With Terrorism Ties
Can Be Targeted in Strikes

Charlie Savage / New York Times Blog

WASHINGTON (February 22, 2012) -- The Obama administration's top Pentagon lawyer on Wednesday said that American citizens who join Al Qaeda can be targeted for killing and that courts should have no role in reviewing executive branch decisions about whether someone has met such criteria.

"Belligerents who also happen to be US citizens do not enjoy immunity where non-citizen belligerents are valid military objectives," said Jeh C. Johnson, the Defense Department general counsel, in a speech at Yale Law School.

Mr. Johnson's remarks offered an unusually comprehensive and public declaration of the Obama administration's national security legal policy views in the war against Al Qaeda and its allies. While the outlines of those views have been aired in pieces before, officials usually discuss such matters only on condition of anonymity.

In raising the targeted killing of an American citizen, Mr. Johnson emphasized that he was not talking about any particular operation. The administration has declined to discuss its killing last September of Anwar Al-Awlaki, a New Mexico-born radical Islamist cleric who died in a drone strike in Yemen that technically remains a covert operation.

Still, Mr. Johnson invoked a lawsuit filed by Mr. Awlaki's father before the killing that had sought an injunction against targeting his son, citing with approval a district judge's decision to dismiss the case and saying that targeting decisions are not suited to court review because they must be made quickly and based on fast-evolving intelligence.

"Within the executive branch the views and opinions of the lawyers on the president's national security team are debated and heavily scrutinized, and a legal review of the application of lethal force is the weightiest judgment a lawyer can make," he said. "And, when these judgments start to become easy, it is time for me to return to private law practice."

Mr. Johnson also emphasized that even though the conflict is against an unconventional force, the administration believes that it must apply conventional legal principles -- like the Geneva Conventions, international laws of armed conflict, and traditional ways of interpreting domestic wartime statutes -- in waging it.

Still, he described a broad interpretation of the authorization by Congress to use military force against the perpetrators of the Sept. 11, 2001, attacks, saying that nothing in that statute limited the ability to wage war against Al Qaeda and its allies to the so-called "hot" battlefield zone of Afghanistan.

"The legal point is important because, in fact, over the last 10 years Al Qaeda has not only become more decentralized, it has also, for the most part, migrated away from Afghanistan to other places where it can find safe haven," Mr. Johnson said.

Mr. Johnson explained that in deciding whether an armed Islamist group that is not part of Al Qaeda counts as an "associated force" -- meaning it is part of the war, so its members can be targeted or detained without trial -- the administration is using a two-part test: such a group must have aligned itself with Al Qaeda, and it must have specifically started fighting the United States and its allies.

"Thus, an 'associated force' is not any terrorist group in the world that merely embraces the Al Qaeda ideology," he said. "More is required before we draw the legal conclusion that the group fits within the statutory authorization for the use of military force passed by the Congress in 2001."

Mr. Johnson also told the Yale Law School audience that it was true that he had sometimes disagreed with the school's former dean, Harold Hongju Koh, who is now the top State Department lawyer. But he praised Mr. Koh and said it was a good thing that such lawyers were thrashing out difficult legal issues together rather than succumbing to "group think."

One of the disputes between Mr. Koh and Mr. Johnson, as reported last year by The Times, was whether the United States' war against Al Qaeda extended to every member of the Islamist groups in Yemen and Somalia, or just to high-level leaders who were focused on attacking the United States rather than parochial concerns.

That dispute may have been partly settled earlier this month when a video surfaced in which Ayman al-Zawahri -- who took over as Al Qaeda's leader after United States forces killed Osama bin Laden last year -- said that the Shabab, a militant Islamist group in Somalia, had formally joined Al Qaeda.


Institutionalizing Extra-Judicial Execution:
Obama is a Mass Murderer

John Glaser / AntiWar.com

(February 5, 2012) -- Featured in our news section [1], the Bureau of Investigative Journalism has published an important new investigation [2] into America's drone war in Pakistan, finding that many strikes have deliberately launched follow-up attacks, killing people "who had gone to help rescue victims or were attending funerals." As Glenn Greenwald points out [3] (again [4]) the Bureau's methodology for tallying civilian deaths is very rigid and "virtually guarantees significant under-counting of civilian deaths," but nonetheless the report finds that "at least 50 civilians were killed in follow-up strikes when they had gone to help victims" and "more than 20 civilians have also been attacked in deliberate strikes on funerals and mourners." The high-end estimate for total casualties in the US drone war, according to the Bureau, is 3,019, including up to 815 civilians (175 of them children).

Here's what I think is the most important passage of the report:

Naz Modirzadeh, Associate Director of the Program on Humanitarian Policy and Conflict Research (HPCR) at Harvard University, said killing people at a rescue site may have no legal justification.

'Not to mince words here, if it is not in a situation of armed conflict, unless it falls into the very narrow area of imminent threat then it is an extra-judicial execution', she said. 'We don't even need to get to the nuance of who's who, and are people there for rescue or not. Because each death is illegal. Each death is a murder in that case.'


Even if most of the public doesn't know these facts, millions of informed people do know. What's interesting is that Obama's image isn't tarnished at all, because, after all, he is the president. A common refrain among libertarians is that if commonly accepted government actions were carried out by private individuals, it would be thought of as unthinkable violence and theft unachievable by even the most hardened criminals. Consider Obama, who has spearheaded this policy of rapidly intensified drone campaign in northwest Pakistan, as a private individual. Of course, this reduces him to a mass murderer. But his image and prestige remains that of a Presidential Leader of the Free World and a Nobel Peace Prize winner to boot, not of Ted Bundy.

Another quick thought experiment, also brought up in the Bureau's report, is to think what the reaction of the Obama administration would be if their drone war were being carried out by another state, say Russia or China. Very clearly, it would be vehemently condemned. Obama's top counterterrrorism adviser, John Brennan, defended the drone program with this [5]: "Because we are engaged in an armed conflict with al- Qaeda, the United States takes the legal position that, in accordance with international law, we have the authority to take action against al-Qaeda and its associated forces." Indeed, that is almost precisely the excuse used by Syrian President Bashar al-Assad in killing well over 5,000 Syrians. He says his country is being threatened by terrorists and he is legitimately protecting Syrians and his government with appropriate force. Obama responded to that excuse by calling Assad's crackdown [6] "indiscriminate violence" and highlighted the "murder" of innocent Syrians "including women and children." After his administration pushed for a UN Security Council resolution aimed at removing Assad from power, Obama said, "Any government that brutalizes and massacres its people does not deserve to govern."

And what about someone who has institutionalized extra-judicial execution and committed mass murder of innocent men, women, and children? Does he deserve to govern?

Footnotes

[1] Featured in our news section: http://original.antiwar.com/Christina-Lamb/2012/02/04/obama-terror-drones-cia-tactics-in-pakistan-include-targeting-rescuers-and-funerals/

[2] an important new investigation: http://www.thebureauinvestigates.com/2012/02/04/obama-terror-drones-cia-tactics-in-pakistan-include-targeting-rescuers-and-funerals/

[3] Glenn Greenwald points out: http://www.salon.com/2012/02/05/u_s_drones_targeting_rescuers_and_mourners/singleton/

[4] again: http://www.salon.com/2011/07/19/drones/

[5] defended the drone program with this: http://www.nytimes.com/2011/09/17/us/john-o-brennan-on-use-of-military-force-against-al-qaeda.html

[6] responded to that excuse by calling Assad's crackdown: http://www.jpost.com/International/Article.aspx?id=256463

Posted in accordance with Title 17, Section 107, US Code, for noncommercial, educational purposes.

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