The Nation - License to Kill?

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by David Cole

April 15, 2010

On April 6 the New York Times reported that the Obama administration had approved the targeted killing of an American cleric, Anwar al-Awlaki, who is suspected of encouraging and planning terrorist attacks against the United States. The news that the president had decided to kill an American without charges, without a jury, without a lawyer and without a trial has thus far stirred relatively little outcry. By contrast, President Bush's assertion of the power to detain two Americans without trial--Yaser Hamdi and Jose Padilla--led to two Supreme Court cases and thousands of news articles, op-eds and talk-show debates. On April 13 the Washington Post editorial board defended the targeted-killing policy--even though we know precious little about its asserted legal justifications or scope.

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In our peculiar post-9/11 world, it is apparently less controversial to kill a suspect in cold blood than to hold him in preventive detention. The Post reported on February 14 that the Obama administration has killed many more suspected terrorists than it has captured. According to National Journal, Obama ordered more drone attacks in his first year than President Bush did in two full presidential terms. The Post article suggested that the two developments may not be unrelated. A dead suspect, after all, has no right to habeas corpus; and with a dead suspect, one need not agonize over the choice between civilian criminal court and a military commission.

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But surely this has it backward. The argument for preventive detention during armed conflicts has always been that since the army is authorized to kill an enemy combatant, it must be permitted to take the lesser step of detaining him for the duration of the conflict. If so, shouldn't we be at least as concerned about executive killing as we are about executive detention?

Wars involve killing, of course, but the scope of the current armed conflict and the identity of "combatants" have both been hotly disputed. International humanitarian law requires that the state target only combatants, not civilians who are not directly participating in the conflict; that any use of force be proportional; and that collateral damage be limited. And certainly where an enemy combatant can be captured rather than killed, the government should be required to pursue that avenue. These principles ought not to vary whether the state is targeting citizens or foreign nationals. If a person is aiming a weapon at a US military convoy on the battlefield, convoy members need not check his passport or provide him a hearing before shooting to kill.

Awlaki, however, is nowhere near the battlefield. He's said to be hiding out in Yemen. He's not aiming a gun at US forces. On the other hand, he should not be mistaken for an innocent bystander. American counterterrorism officials accuse him of recruiting people for terrorist plots against US targets. And he has been linked to three of the 9/11 hijackers; to Nidal Hasan, the US Army psychiatrist who killed thirteen and wounded thirty in a mass shooting at Fort Hood in November; and to Umar Farouk Abdulmutallab, the would-be Christmas Day bomber--although in each instance the alleged ties appear to focus more on vague communications than on any concrete criminal activity.

It may be that Awlaki fits the definition of a "belligerent" who can't be apprehended and is therefore a proper target in this armed conflict. But the American public just doesn't know. Are we simply to trust our government to make the right call? That's what the Bush administration argued about the men in Guantánamo--yet more than 500 of them have been released, suggesting that they were not, as claimed, "the worst of the worst." Unlike a detainee, a dead man cannot be released when the government realizes it has made a mistake.

More troubling, the public doesn't even know what the Obama administration's legal theory is for targeted killings. State Department legal adviser Harold Koh provided very general outlines in a speech in March before the American Society of International Law, but his speech was short on specifics. The program is undoubtedly predicated on a detailed memorandum from the Office of Legal Counsel, setting forth the legal arguments that are said to justify the action, the statutory or constitutional authorities relied upon, the criteria for targeting and the procedural safeguards established to minimize mistakes. The ACLU has requested the documents under the Freedom of Information Act, but so far the administration has declined to disclose them. It may well be that the details surrounding a particular target need to be classified in advance, but there is no reason that the government should not be transparent about the legal framework and procedural protections it has adopted. A democracy that permits its president to adopt wholly secret procedures and secret authorities for killing its own members violates the very rule-of-law ideals that President Obama promised to uphold.

About David Cole

David Cole is The Nation's legal affairs correspondent. His latest book is The Torture Memos: Rationalizing the Unthinkable (New Press)

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Finding Those Behind Chechen Killings ‘Paramount,' Russian President Says

By Philip P. Pan
Washington Post Foreign Service
Saturday, August 15, 2009

MOSCOW, Aug. 14 -- Russian President Dmitry Medvedev declared Friday that the capture of those responsible for the recent killings of three Chechen human rights workers should be the "paramount task" of the nation's security services.

Medvedev also appeared to signal dissatisfaction with Chechnya's Kremlin-appointed strongman, Ramzan Kadyrov, a former rebel warlord who has been accused of terrorizing the population.

"I think this is a challenge for the Chechen leadership," Medvedev said at a news conference in the Black Sea resort of Sochi after talks with German Chancellor Angela Merkel. "The Chechen president must do everything he can to find and apprehend these murderers."

His demand came amid a surge of violence in Chechnya and two neighboring provinces, Dagestan and Ingushetia, that left 23 people dead. The bloodshed underscored the Kremlin's struggle to maintain control of the region against an Islamist insurgency that appears to be gaining momentum.

In the deadliest incident, militants burst into a bathhouse Thursday night in the city of Buynaksk in Dagestan and gunned down seven women, authorities said. The attack occurred after the rebels sprayed a nearby police post with gunfire, killing four police officers.

Six other police officers and five suspected rebels were reported killed in gun battles in Chechnya and Dagestan on Thursday and Friday. In Ingushetia, authorities said a woman who made a living telling fortunes was shot to death Thursday by militants who consider the practice a grave sin.

An American expert on the region warned in an article this week that Russia's repressive policies in the North Caucasus had created "fertile ground for terrorist recruiters" and represented a threat to U.S. security interests.

"Getting targeted assistance to the region, including job creation, should be of the highest importance to the White House and the State Department, as well as European governments," wrote Sarah Mendelson, human rights and security initiative director at Washington's Center for Strategic and International Studies.

Referring to the unsolved killings of several human rights activists and journalists, Mendelson urged President Obama and European leaders to make clear to Medvedev that "impunity will not be tolerated" while pressing him to accept international help to address lawlessness in the region.

Chechnya's most prominent human rights activist, Natalya Estemirova, was abducted and executed last month, and a couple who ran a center for children traumatized by Russia's two wars against Chechen separatists was found shot to death in the trunk of their car Tuesday.

A day later, the Ingush construction minister was gunned down in his office. The Ingush leader, Yunus-Bek Yevkurov, returned to work this week after recovering from an assassination attempt in June that killed four of his bodyguards.

Medvedev linked the attacks on the human rights workers to those on government officials, and said they were "aimed at destabilizing the situation in the Caucasus" and carried out by militants with foreign support.

"I have given all necessary orders," he said, according to the Interfax news agency. "Finding, prosecuting and punishing these murderers is the paramount task for all law enforcement authorities, for the office of the prosecutor general, for the Investigation Committee, and for other special services."

Merkel told reporters she condemned the recent killings "in the strongest terms" during a summit meeting that focused on trade and investment. "This is unfortunately a serious subject which we have to deal with time and again at many meetings," she said.

Human rights activists argue that the most likely suspects in the slayings of their colleagues are not the rebels but members of the Russian security services. Some accuse Kadyrov of engaging in "state terrorism" against his critics with the tacit support of his patron, Prime Minister Vladimir Putin, and a group of Russian lawyers has called for an international tribunal to prosecute war crimes committed in Chechnya.

Medvedev last month dismissed allegations that Kadyrov was behind Estemirova's death, but his remarks Friday suggest that he may be losing patience with the Chechen leader, a former separatist fighter whom Putin entrusted with unusual autonomy over the region in 2007 in return for his loyalty.

Kadyrov has condemned the killings and vowed to solve them, but he has also repeatedly derided Estemirova, saying she "never had any honor or sense of shame" and "was misleading society and writing lies."