Thursday, October 06, 2011

The Anwar al-Awlaki and Samir Khan assassinations (4)

Reuters has a report from Mark Hosenball on the extralegal process the President uses to decide which American citizens should be assassinated without so much as the pretence of legal process, Secret panel can put Americans on "kill list' 10/05/2011:

American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.

There is no public record of the operations or decisions of the panel, which is a subset of the White House's National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.

The panel was behind the decision to add Awlaki, a U.S.-born militant preacher with alleged al Qaeda connections, to the target list. He was killed by a CIA drone strike in Yemen late last month.

The role of the president in ordering or ratifying a decision to target a citizen is fuzzy. White House spokesman Tommy Vietor declined to discuss anything about the process.
This last is most likely a Mob-like legal dodge designed to minimize the potential legal liability of the President if the participants in this for-real "death panel" ever get caught up in the rule of law. Hosenball reports further:

Several officials said that when Awlaki became the first American put on the target list, Obama was not required personally to approve the targeting of a person. But one official said Obama would be notified of the principals' decision. If he objected, the decision would be nullified, the official said.

A former official said one of the reasons for making senior officials principally responsible for nominating Americans for the target list was to "protect" the president.
It's hard to put any good face on this. It's lynch law, which the Republican are glad to have the African-American President validate, even as they smear him as a Kenyan Marxist Islamunofascist who hates America and white people. As Scott Lemieux puts it (The Star Chamber Lawyers Guns and Money 10/06/2011):

If you think this process isn’t an invitation for the worst sort of abuses, you must have been in a coma for most of the last decade. And it is striking how spotty and lacking in specifics about actual terrorist activity even the unrebutted, unchecked case against Awlaki is.
The latter comment may refer to the discussion of the allegations in the Reuters article.

Glenn Greenwald asks the obvious rhetorical question (Execution by secret WH committee Salon 10/05/2011):

So a panel operating out of the White House — that meets in total secrecy, with no known law or rules governing what it can do or how it operates — is empowered to place American citizens on a list to be killed by the CIA, which (by some process nobody knows) eventually makes its way to the President, who is the final Decider. It is difficult to describe the level of warped authoritarianism necessary to cause someone to lend their support to a twisted Star Chamber like that; I genuinely wonder whether the Good Democrats doing so actually first convince themselves that if this were the Bush White House’s hit list, or if it becomes Rick Perry’s, they would be supportive just the same. Seriously: if you’re willing to endorse having White House functionaries meet in secret — with no known guidelines, no oversight, no transparency — and compile lists of American citizens to be killed by the CIA without due process, what aren’t you willing to support? [my emphasis]
Obviously, someone who supports this is operating on an authoritarian assumption under which there can be no legal or moral objection to Presidential assassination orders. In the case of Democratic supporters, they are presumably doing so out of loyalty to the Democratic President and in deference to the national security establishment.

In the case of Republicans, their primary loyalty seems to be to the Party itself, as well as to the national security establishment, although they expect the latter to be subordinate to the Party, as well. What Dick Cheney need to establish his Unilateral Executive firmly as official practice was a successor President to validate it. As Greenwald also asks:

Even for those deeply cynical about American political culture: wouldn’t you have thought a few years ago that having the President create a White House panel to place Americans on a CIA hit list — in secret, without a shred of due process — would be a bridge too far?
The process has worked like this, with some of the steps occurring simultaneously:

  • Cheney and Bush establish the torture policy, which included murdering prisoners and torturing American citizens (e.g., John Walker Lindh and José Padilla)
  • Cheney and Bush establish a kangaroo court system outside the official civilians and military courts
  • Cheney and Bush practice indefinite detention
  • Cheney and Bush defend the torture policy under a effectively unlimited theory of Presidential power (the Unitary Executive, aptly called the Unilateral Executive by Al Gore)
  • Cheney and Bush Make federal legal officials complicit in the crimes
  • Cheney and Bush claim very expansive Executive secrecy claims
  • The Obama Administration avoids prosecution of the torture crimes
  • The Obama Administration continues key elements of the policy like the secret prisons, which virtually guarantee that torture will occur
  • The Obama Administration makes even more expansive secrecy claims than the Cheney-Bush Administration
  • The Obama Administration claims the right to assassinate American citizens accused of being enemies of the US with no legal process or judicial review
  • The Obama Administration carries out such an assassination
Of course, all of this takes place in the context of the Iraq War, the Afghanistan War, now the Libya War and the wide range of domestic and international activities known as the War on Terror.

Samir Khan was apparently not on that secret hit list of American citizens. But he was an American citizen and he is dead, killed in the attack on Awlaki. The Charlotte Observer reports on Khan's family's public reaction to his killing in U.S. actions 'appall' family of slain al-Qaida blogger by Tim Funk 10/06/2011. They released the following statement which, whatever kind of person Khan actually was and whatever he may have done, are entirely valid questions:

"We, the family of Samir Khan, in our time of grief and mourning, request that the media let us have our peace and privacy during this difficult time. It has been stated in the media that Samir was not the target of the attack; however no U.S. official has contacted us with any news about the recovery of our son's remains, nor offered us any condolences. As a result, we feel appalled by the indifference shown to us by our government.

"Being a law abiding citizen of the United States our late son Samir Khan never broke any law and was never implicated of any crime. The Fifth Amendment states that no citizen shall be 'deprived of life, liberty, or property, without due process of law' yet our government assassinated two of its citizens. Was this style of execution the only solution? Why couldn't there have been a capture and trial? Where is the justice? As we mourn our son, we must ask these questions."
Funk's report notes what a landmark the Awlaki-Khan assassination was:

Friday's drone attack is thought to be the first instance in which a U.S. citizen was tracked and killed based on secret intelligence and the president's say-so. Al-Awlaki was placed on the CIA "kill or capture" list by the Obama administration in April 2010 - the first American to be so targeted.
This isn't an obscure procedural issue. The President has no authority to order an American citizen assassinated. In fact, it's illegal. No formal charges were ever brought against the two Americans summarily executed. Nor does the evidence in the public record indicate that they committed a capital crime, if indeed they committed a capital crime at all.

My understanding is that both men did advocate the killing of innocent Americans. If so, that's obviously wrong and contemptible. But under American law advocating the use of political violence in the abstract, even advocating criminal action like killing innocents in the abstract, is not a crime. But the sketchiness of the actual evidence in the public record can be seen in the Reuters report. Greenwald elaborates on that point in his column:

What's crucial to keep in mind is that nobody can see this "evidence" which these anonymous government officials are claiming exists. It's in their exclusive possession. As a result, they're able to characterize it however they want, to present it in the best possible light to support their pro-assassination position, and to prevent any detection of its flaws. As any lawyer will tell you, anyone can make a case for anything when they're in exclusive possession of all the relevant evidence and are the only side from whom one is hearing; all evidence becomes less compelling when it's subjected to adversarial scrutiny. Yet even given all those highly favorable pro-government conditions here, it’s obvious — even these officials admit — that the evidence is "partial," "patchy," based on "suspicions" rather than knowledge. [emphasis in original]
This assassinating American citizens is bad stuff. And this assassination of Anwar al-Awlaki and Samir Khan sets a seriously, seriously bad precedent for far more deadly and abusive actions by this and future Presidents.

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