Today in a congressional hearing, Director of National Intelligence Dennis Blair acknowledged that the U.S. may, with executive approval, deliberately target and kill U.S. citizens who are suspected of being involved in terrorism. I discussed this story in the segment on MSNBC Countdown below.
In the hearing, Blair stated “[w]e take direct actions against terrorists in the intelligence community. If we think that direct action will involve killing an American, we get specific permission to do that.”
The story raises serious legal questions. It is one thing to kill an American in the course of a terrorist act or to prevent an imminent attack. It is quite another thing to kill someone suspected of terrorism without a trial. That would amount to the assassination of a citizen.
Once again, the Obama Administration appears to be following Bush policies. In late 2002, Kamal Derwish (aka Ahmed Hijazi), a U.S. citizen, was killed in an attack by a Hellfire missile fired by a Predator in Yemen. The U.S. knew it was killing a U.S. citizen because it was monitoring his phone at the time. We were targeting Al Qaeda figures. One of the men was Abu Ali al-Harithi, suspected of masterminding the 2000 attack on the USS Cole in Yemen. After the attack, the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions wrote a letter to the United States stating the attack “constitute[s] a clear case of extrajudicial killing.”
Notably, Derwish was a key possible witness for the defense in the controversial Lackawanna case. He was reportedly the individual who recruited the Lackawanna defendants to travel to Afghanistan and knew facts concerning their travels, timing, motivation, and the material support to al Qaeda.
Such use of unilateral authority put the United States on shaky legal ground. The Annex to Hague Convention Number IV, Respecting the Laws and Customs of War on Land, has a provision that reads: “In addition to the prohibitions provided by special Conventions, it is especially forbidden … to kill or wound treacherously individuals belonging to the hostile nation or army … .” The provision is admittedly a bit vague when put into specific situations on a battlefield. However, the U.S. Army has interpreted this provision “as prohibiting assassination, proscription, or outlawry of an enemy, or putting a price upon an enemy’s head, as well as offering a reward for an enemy “dead or alive.'” While the military believes it can target individual soldiers, the line between an assassination and legitimate killing has become more blurred with new technology like predators. What is not blurred are the rights of U.S. citizens.
As reaffirmed in cases like Reid v. Covert, 354 U.S. 1 (1957), American citizens have the same protections regardless of whether they are without or outside of the country. In that case, two American women who murdered their husbands on American military bases abroad were given the same protections under the Fifth Amendment regardless of the fact that they were located and committed the crimes abroad.
If a president can kill U.S. citizens abroad, why not within the United States? What is the limiting principle beyond the practicalities?