“I am going to kill you for having joined Al Qaeda. While you are a citizen of the United States I wish to assure you that your death by drone is justifiable and perfectly legal but I will not tell you how or why.”
President Barack Obama’s message to Anwar al-Awlaki, the American born Yemeni imam in April, 2010, killed by an American drone strike on September 30, 2011
Instead of addressing the lawfulness of the targeted killing of American citizens without due process of law or judicial oversight a federal appeals court has ruled this week that the Obama administration must disclose the legal justification for this unprecedented use of executive power.
It seems that the “why” is more important that the “what”. We are now debating the criteria for political assassinations and not the killings in violation of existing prohibitions against such actions.
“For years the Obama administration has been playing a self-serving and duplicitous game over its power to kill people away from any battlefield and without judicial oversight or accountability.” It has manipulated public opinion by making public statements that beg the issue. The administration will now have to come clean and make public the rationale purportedly authorizing “lawful” assassinations. The genie will be out of the bottle and countries will use the same arguments to justify their own justifiable and “lawful” murders.
Political assassinations have been a dirty secret that no country admitted to. The present state of affairs started with Barack Obama’s claim that “justice was done” after the assassination of Osama bin Laden. It wasn’t; justice was not done; it was undone. Obama, of all people, a graduate of Harvard Law School, a lawyer and law professor should know better. Justice requires that laws be honored and not discarded for political expediency.
Assassination is the extrajudicial intentional killing by a government of a person for a political purpose. Perhaps the Attorney General should remind the President that state sanctioned assassinations, or “targeted killings”, are illegal. In 1976, President Ford signed an Executive Order, a finding and directive having the force of law, banning political assassinations. [“Prohibition of Assassination. No employee of the United States Government shall engage in, or conspire to engage in, political assassination”] President Carter followed suit by banning even indirect government involvement in assassinations. In 1981 President Reagan signed yet another still in force Executive Order which provides that “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination” and that “No agency of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this Order”.
President Obama is following the lead of two morally deficient Presidents. Bill Clinton, a Yale Law School graduate, publicly admitted to secretly approving bin Laden as target for assassination even after his criminal indictment in 1998 for the Nairobi and Dar as Salaam Embassy bombings, and George Bush who publicly called for his murder, “his head on a plate”, after 9/11. Fortunately for them his murder/assassination did not occur on their watch.
Today’s federal judiciary and the Supreme Court cannot be counted on to give the President sage advice. President Truman heeded Justice Robert Jackson’s principled call preventing the summary execution of Nazi leaders after the Second World War: “The only course [we have] is to determine the innocence or guilt of the accused [is] after a hearing [in a court of law] as dispassionate as the times will permit and upon a record that will leave our reasons and motives clear.” The result was the Nuremberg Military Tribunal, an imperfect meting out of a victor’s justice, but justice nonetheless.
Herman Göring, Rudolf Hess, Joachim von Ribbentrop et al stood accused, tried, convicted and sentenced. The sentences, including the death penalty, were carried out. These men were responsible for the death of millions, not the thousands that can be ascribed to bin Laden or the hundreds allegedly attributed to Anwar al-Awlaki, the American Muslim cleric. You cannot equate bin Laden’s and al-Awlaki’s alleged crimes, whatever they may be, with those committed by the perpetrators of the holocaust. In fact the FBI did not find sufficient evidence to warrant criminal prosecution and Anwar al-Awlaki was not charged with any crime before he was executed in 2011.
In 1945, justice was done. The rule of law, as imperfect and flawed as a victor’s tribunal may have been, was followed: indictment, trial, conviction and sentence; but not today.
Bill Clinton, notwithstanding his secret authorization for bin Laden’s assassination, at least publicly adhered to the constraints of the rule of law. On November 5, 1998 his Justice Department filed an indictment with a federal District Court in New York accusing bin Laden of crimes, some carrying the death penalty. But once that indictment was filed, and it is still on file and operative, the constraints of law came into play. The next step was arrest and trial, not assassination, unless that killing was the result of resistance to lawful apprehension. The circumstances of bin Laden’s killing remain murky and are a matter of continuing debate.
But not so the killing of Anwar al-Awlaki, killed by a drone strike on September 30, 2011 in Yemen. Now the United States will have to disclose the authorities and legal standards that allowed for this action. You may not agree with them but they will be seized upon by others intent in justifying their own actions. The genie of political assassinations will be uncorked and let loose on the world with who knows what consequences.
Deyan Ranko Brashich, an attorney, Op-Ed columnist, resides and writes from New York City and is a frequent contributor. He is the author of “Letters from America,” and “Contrary Views”. His contact and blog “Contrary Views” is at www.deyanbrashich.com.