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Washington Challenged to Justify Drone Killings


October 9, 2012
Bob Egelko / San Francisco Chronicle & The First Amendment Coalition

A news media organization asked a federal judge Friday to order the Obama administration to disclose its legal reasoning for ordering lethal drone strikes on US citizens in the Middle East, saying statements by the president and other officials belie government claims that the subject is too sensitive to discuss publicly.

http://www.sfgate.com/nation/article/Suit-asks-U-S-to-justify-drone-attacks-3925340.php

Suit Asks US to Justify Drone Attacks
Bob Egelko / San Francisco Chronicle

(October 6, 2012) -- A news media organization asked a federal judge Friday to order the Obama administration to disclose its legal reasoning for ordering lethal drone strikes on US citizens in the Middle East, saying statements by the president and other officials belie government claims that the subject is too sensitive to discuss publicly.

"Regardless of whether Obama's procedure for targeted killing is constitutionally adequate, Americans are entitled to know the law they live under," the California First Amendment Coalition said in a filing with Chief US District Judge Claudia Wilken in Oakland. [See the FAC's statement below. -- EAW.]

Justice Department memos describing the legal basis for the drone attacks could be released without disclosing intelligence sources or any other information that affects national security, the coalition argued.

The suit, filed in February, is similar to one filed earlier in a New York federal court by the New York Times and the American Civil Liberties Union. In that suit, the Justice Department has acknowledged the existence of a memo justifying a September 2011 drone killing in Yemen but argued that its disclosure would threaten the secrecy of US antiterrorism efforts.

The Yemen strike killed Anwar al-Awlaki, a US-born Muslim cleric accused by US authorities of recruiting the passenger who tried to blow up an airliner bound for Detroit in 2009. Another US citizen was also killed in that attack, and Awlaki's US-born 16-year-old son was killed by a drone in Yemen the following month.

Bob Egelko is a San Francisco Chronicle staff writer.

COMMENTS

(October 7, 2012) -- It is incredibly disappointing that the only politician who has acknowledged what a travesty of the Constitution these strikes are is Ron Paul.
Think about it : US President decides US citizen is a problem. Citizen is vaporized. No trial. No jury.
No doubt al-Awlaki was a threat but once you eliminate the need for due process for your own citizens .... well, that's a very dangerous bridge to cross. It would have been a media furor -- and permanent front page news were it Dubya or another Republican, but strangely Obama seems to accomplish the wolf in sheep's clothing thing very well. I very much doubt that people who voted for Obama on the basis of "closing Gitmo" thought that would mean by obviating the need for Gitmo completely by simply vaporizing perceived enemies from the sky.
No oversight, no trial, no prison, just some pink mist.

(October 7, 2012) -- "I pledge to uphold the constitution and defend the United States from all enemies, foreign and domestic." It is like justifing killing people who fought for the South in the Civil War. Whether you agree with the drone strikes or not these people being killed, at least the targets of these attacks, are enemies of the State and we are at war and killing is a part of war.
If we do not have the guts for it maybe we shouldn't have started it in the first place but while we are in war there will be killing of the enemy and the people around them. I would much rather have targeted attacks then the fire-bombing of cities full of women and children. War is hell, the way to fight it is kill the madmen leaders and get it over with.



Most Wanted Secret Doc: Justice Dept Memo Analyzing Drone Strikes Against Suspected Terrorists
The First Amendment Coalition

SAN RAFAEL, Calif. (August 27, 2012) -- In the world of secret information about powerful people, there are two sets of documents in especially high demand right now. First are Mitt Romney's undisclosed tax returns. You already know about those.

The other is a classified legal memorandum, prepared by the Justice Department, analyzing the government's legal authority to conduct targeted killings of terrorists abroad-including, specifically, terrorists who are US citizens. Interest in this memo intensified following a 2011 drone strike in Yemen that killed Anwar al-Awlaki, an American citizen, who government officials say was involved in planning attacks against the US

The targeted killings memo has been requested by no fewer than ten members of Congress (all of whom were denied access). The memo is also sought in three FOIA lawsuits filed separately by the First Amendment Coalition (the organization I work for) in federal court in San Francisco, and by the New York Times and the ACLU in federal court in Manhattan.

The Justice Department claims the very existence of its legal memo is classified, a position that logically (and oh so conveniently) precludes the government's having to explain why the substance of the memo is classified and why some portions–lawyerly discussions of legal authorities, for example–can't be released even if other portions, concerning intelligence sources, for example, are legitimately classified and must remain secret.

The government's position in court contrasts sharply with its conduct outside of court. Outside of court, high level government officials, including Attorney General Eric Holder and White House counter-terrorism adviser John O. Brennan, have openly and aggressively defended the government's legal authority, under both US and international law, to engage in targeted killings by means of drone strikes, and to do so against US citizens far away from the war zones of Iraq and Afghanistan.

Holder, in a speech last March at Northwestern University Law School, said such killings are not assassinations-illegal under an executive order dating back to the administration of President Gerald Ford -- when conducted in self-defense. Spelling out a legal policy that almost certainly derives from the sought-after Justice Department memo, Holder said targeted killing is legal against a US citizen who is "a senior operational leader of al Qaeda or associated" forces "at least" in circumstances where:

. . . the US government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; capture is not feasible; and . . . the operation would be conducted in a manner consistent with applicable law of war principles.

A month later Brennan, the counter-terrorism adviser, in a speech to the Woodrow Wilson Center in Washington, confirmed the use of drones in these attacks and elaborated on the requirement that targets must pose a significant threat:

A significant threat might be posed by an individual who is an operational leader of al-Qa'ida or . . . perhaps the individual is himself an operative -- in the midst of actually training for or planning to carry out attacks against US interests. Or perhaps the individual possesses unique operational skills that are being leveraged in a planned attack.

Outside of court, high level government officials also have spoken candidly (albeit anonymously) about the process of selecting terrorists for targeting. Journalist Daniel Klaidman, relying on these sources in his book Kill or Capture, describes President Obama's direct role in approving the addition of names to a government "kill list," including al-Awlaki, the American citizen killed in Yemen.

The government's don't-give-an-inch posture in court, refusing even to acknowledge the existence of the Justice Department memo while simultaneously giving a full-throated defense of the memo's policy prescriptions, is legally untenable. Why is the government taking such an extreme legal position in these cases?

The answer, I believe, is that the government is intent on denying the courts any role in deciding legal issues surrounding its counter-terrorism operations. The government is doing this not because it believes disclosure of the Justice Department memo would harm national security, and not because it believes its targeted killing policy is legally vulnerable.

Rather, the government fears that litigation in this area could lead to judicial review of the selection of targets, especially targets who are US citizens, for the government's terrorist "kill list."

The argument for doing so has intuitive appeal. The targeting of an individual US citizen for killing with a remotely-fired missile sure looks like a summary government execution -- the ultimate deprivation of constitutional due process rights.

Although American citizenship certainly can't shield from preemptive action a terrorist plotting a major and imminent attack on the homeland, the targeting of that citizen cries out for independent judicial review of the sufficiency and reliability of the government's information.

Is the government sure that the targeted person is a significant threat, that his capture is impractical and that civilian deaths will be avoided or held to a minimum? And how confident is the government that the person in its sites is, in fact, the person the government means to kill?

Although the government would no doubt argue that requests for judicial approval are impractical, there is ample precedent for such a procedure. The government already is required to apply to a secret court for a warrant to wiretap a suspected terrorist. If a court's okay is needed to tap a terrorist's phone, shouldn't a court's okay be required to kill him?

The essential difference, from the government's perspective, is that, while federal judges rarely hesitate to sign a document authorizing a counter-intelligence wiretap, they will not be so quick to sign a document that is a de facto death warrant. They will have lots of questions and won't sign off, if at all, until they get satisfactory answers.

The government, understandably, is reluctant to be second-guessed by a judge in such matters. Yet, that very reluctance may be the strongest argument for requiring judicial review of targeted killings.

Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition. The views expressed here do not necessarily reflect the views of the FAC Board of Director. In its FOIA suit against the Justice Department, FAC is represented by Thomas R. Burke and his colleagues at the Davis Wright Tremaine law firm.

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

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