When can America kill its own citizens?

2013-02-06 13:17
A US Predator drone. (File, AP)

A US Predator drone. (File, AP)

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Chicago - NBC news on Monday reported it had uncovered a memo, written by the Department of Justice, that advises the government that it can target American citizens with drone strikes under certain circumstances.
If you remember, the New York Times last year published an article about the Obama administration's "kill list", in which it reported that, "Mr Obama has placed himself at the helm of a top secret 'nominations' process to designate terrorists for kill or capture, of which the capture part has become largely theoretical." The Times, in that article, also said that "several" of the names on the list were Americans.
Naturally, removing the right of due process, essentially the rights for a citizen to be treated fairly within the justice system (for example, having a neutral judge in a fair trial), from anyone is a complicated issue.

But now that the government seems OK with strikes against American civilians suspected of terrorism, or affiliation with al-Qaeda, or anyone who might be affiliated with someone sympathetic to al-Qaeda, the American public has begun to take notice.

This will gain more attention later in the week when Obama's nomination for head of the CIA, John Brennan, will undergo a hearing in the Senate before the same body will vote to authorise him for the job. Brennan, currently a counter-terrorism adviser, has previously and enthusiastically defended the use of the drone programme.
However, the increase in the drone programme has been undertaken on the other side of a quite severe veil of secrecy – civil rights groups have taken the government to court to try and get particular classified memos released but have been thwarted thus far, and the Department of Justice won't even acknowledge if there are memos detailing drone programmes in existence. Accountability is compromised due to the drone strikes being done through the CIA, as opposed to the military.

No geographical limit

Which brings us to the memo uncovered by NBC's Michael Isikoff on Monday, written by the Department of Justice, detailing some uncomfortable detail on just when the Obama administration thinks it can kill suspected terrorists and remain within the law.

It is worth pointing out that the memo is not an official legal document, nor is it classified (it was shared with a Senate committee on the proviso it would not be shared). But it is a recommendation by the Department of Justice.
The memo argues there is no geographical limit on striking suspected terrorists or members of al-Qaeda as long as it is outside the USA's borders. This is a reasonable question as the US is not actually at war with another nation; al-Qaeda is spread over many.

As you know, however, there have been multiple drone attacks in Pakistan, Yemen and Somalia, which are all sovereign nations with borders they are entitled to decide what or who crosses.

The memo deals with this, saying a strike on an American within the borders of another nation can take place with that nation's consent, "or after a determination that the host nation is incapable or unwilling to suppress the threat posed by the individual targeted".

However, it doesn't say who exactly makes this "determination", or what the criteria are in deciding whether a nation is "incapable", both of which are fairly important if the US thinks its suspects are in your country. Those of us who know anything about South African history hardly need reminding about what can happen when laws and rules are loosely defined.

Use of personal history

Possibly the most significant sentence in the memo, however, is this: "the condition that an operational leader present an 'imminent' threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on US persons and interests will take place in the immediate future". To be clear, it says that the US does not need clear evidence to kill one of its own citizens – one of its own citizens whose right to due process has been cancelled.
Following this condition, the memo okays a strike against an American citizen who the government believes is a terrorist "when a capture operation would be infeasible". The document later defines a capture operation not being feasible if "it could not be physically effectuated during the relevant window of opportunity or if the relevant country were to decline to consent to a capture operation", adding concerns over "undue risk to US personnel".
Furthermore, the memo permits the administration to use a person's history to determine whether they are an "imminent threat", instead of proof about their current actions, without even describing what those actions are expected to be.

If a person has been affiliated with al-Qaeda previously but there is "no evidence suggesting that he has renounced or abandoned such activities", the memo maintains the person can be considered an "imminent threat". As you saw in the previous paragraph, this loosely-defined guide can mean the government is entitled to strike without due process.
This is not all to say that there isn't an argument to be made for a government to kill its own citizens. If a domestic army declares war on the government, that's a case (as happened in the USA’s civil war), and was mentioned in a statement by Oregon Senator Ron Wyden  on Tuesday, a day after he and ten colleagues asked the president for specifics, saying, "Every American has the right to know when their government believes that it is allowed to kill them."

Working on suspicion, not proof

Wyden also wrote to the aforementioned Brennan last month to request precisely the same information. As things stand there has been no response, but Wyden is on the Senate committee that will adjudicate the hearing over whether Brennan can head up the CIA.
American citizens have been killed by the Obama drone programme before, most notably Anwar al-Awlaki who was killed in Yemen on 11 September 2011. Neither al-Awlaki, nor Samir Khan – another citizen killed in that strike – was ever charged with any crime by the US government. While their guilt is treated as obvious knowledge in the US, this has been contested within Yemen. Ensuring the truth is entirely the point of why one goes to trial.
While it may seem justifiable to be killing those intent on killing you, by this standard the government requires suspicion but not proof, can violate another country's boundaries, has loosely defined criteria, and does not offer its own citizens their civil rights (which, to be clear, they are "endowed by their Creator" and "unalienable", according to the Declaration of Independence). 
This document is not denoting possible action against people who are definitively planning to attack the USA. It is people who the government thinks are going to. And with no oversight.

Read more on:    al-qaeda  |  barack obama  |  us  |  security

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