Holder Says Awlaki Killing Legal But He's Wrong
During the 2008 presidential campaign Barack Obama pledged to close the detention center in Guantanamo Bay, Cuba used to house enemy combatants captured during the war on terror. He heavily criticized Bush-era policies during the campaign. "As President, I will close Guantanamo, reject the Military Commissions Act and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists," Obama pledged.
In fact one of his first acts after being sworn in as president was to issue an executive order closing the prison.
Upon the signing, the president said he not only followed through on a campaign process, “but I think an understanding that dates back to our founding fathers, that we are willing to observe core standards of conduct, not just when it's easy, but also when it's hard.”
Yet three years later detainees are still being held there.
Fast-forward almost three years later to September 2011 when American-born cleric Anwar Awlaki was killed in a targeted strike by a U.S. drone in Yemen. Suddenly the administration that billed its approach as kinder and gentler than the Bush administration’s looks strikingly like its predecessor. Those campaign promises of adhering to the Geneva Conventions and the Constitution are now little more than a memory.
Media organizations have repeatedly petitioned the government for a copy of the Justice Department memo that spells out the legal justification for the targeted killing of American citizens. Thus far, the Obama administration has denied every single Freedom of Information Act request for the document. But on Monday Attorney General Eric Holder shed a glimmer of light on the decision. Speaking to a group of 700 law students in Chicago, Holder said the decision was not made lightly.
:Any decision to use lethal force against a United States citizen - even one intent on murdering Americans and who has become an operational leader of al-Qaida in a foreign land - is among the gravest that government leaders can face," Holder said. "The American people can be - and deserve to be - assured that actions taken in their defense are consistent with their values and their laws."
Except that the targeted killing of an American citizen is not consistent with U.S. law, just like waterboarding wasn’t. Let’s put the discussion of whether or not the drone strike and waterboarding were morally justifiable actions in order to protect U.S. citizens aside and instead focus on the fact that both actions violate international and national law.
Technically speaking the targeted killing of Awlaki does not violate U.S. torture law because Awlaki was not in U.S. custody at the time of his death. However the argument can be made that his killing violated his constitutional right to due process. Let’s be clear, Awlaki was associated with al-Qaida and was no friend of America, but he was never charged with a crime under U.S. law. His targeted killing sets a dangerous precedent.
During George W. Bush’s tenure, his administration repeatedly came under fire for violating the rights of U.S. citizens, namely for holding Jose Padilla indefinitely as an enemy combatant. The Bush administration also came under fire by critics who accused officials of violating the Convention Against Torture.
Thus far the actions of the Obama administration do not seem much different. One could even make the argument that the current administration violated international law much more severely than the Bush administration when Awlaki was targeted for assassination. Yet where is the outrage? Both administrations violated the law. For those not versed in international law, see Article I of the Torture Convention:
For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
Awlaki’s killing is a clear violation of the convention.
President Obama can argue his administration is different than the Bush administration all he wants, but actions speak louder than words. The Guantanamo Bay detention center remains open, a U.S. citizen was the subject of multiple targeted drone strikes and government transparency looks more opaque now than it did in Bush’s eight years. All of this would be much more palatable if the current administration would stop pretending it is something it is not.
Reach Christine Detz here.