Micah Zenko writes: “Outsourcing” is a dirty word in Washington these days. But officials are strangely silent when it involves targeted killings. This column has repeatedly focused on the scope, distinction, legality, and strategic effectiveness of America’s Third War of non-battlefield targeted killings in Pakistan, Yemen, Somalia, and the Philippines. Among the most widely promulgated criticisms of U.S. drone strikes is the absence of any transparency in decision making, limited congressional and judicial oversight, and the potential for civilian harm without any apparent corrective action. Policymakers and analysts have offered suggestions for how — over 10 years after they began — the Obama administration could comprehensively reform its targeted killing policies. Finally, President Barack Obama and Attorney General Eric Holder promised some reforms related to transparency “in the months ahead.” That was several months ago. Given the Obama administration’s refusal to provide witnesses to recent congressional hearings on drones — or answer clarifying questions posed by journalists and policymakers — it is likely that forthcoming announcements will fall short of the president’s repeated goal of making his, “the most transparent administration in history.”

However, if you’re concerned by the Obama administration’s targeted killing policies, don’t overlook similar attacks conducted by allies and partners who receive U.S. money, weapons, or actionable intelligence. When the United States provides other states or non-state actors with the capabilities that enable lethal operations — without which they would not happen — it bears primary responsibility for the outcome. Whatever drone strike reforms the White House offers, or if additional congressional hearings are held, they must take into account America’s troubling role in client-state targeted killings. Consider some of the most egregious recent examples which the United States directly abetted: [Continue reading…]

Scott Shane reports: When Sulaiman Abu Ghaith, a son-in-law of Osama bin Laden, was taken into American custody at an airport stopover in Jordan last month, he joined one of the most select groups of the Obama era: high-level terrorist suspects who have been located by the American counterterrorism juggernaut, and who have not been killed.

Mr. Abu Ghaith’s case — he awaits a federal criminal trial in New York — is a rare illustration of what Obama administration officials have often said is their strong preference for capturing terrorists rather than killing them.

“I have heard it suggested that the Obama administration somehow prefers killing Al Qaeda members rather than capturing them,” said John O. Brennan, in a speech last year when he was the president’s counterterrorism adviser; he is now the C.I.A. director. “Nothing could be further from the truth.”

In fact, he said, “Our unqualified preference is to only undertake lethal force when we believe that capturing the individual is not feasible.”

Despite Mr. Brennan’s protestations, an overwhelming reliance on killing terrorism suspects, which began in the administration of George W. Bush, has defined the Obama years. Since Mr. Obama took office, the C.I.A. and military have killed about 3,000 people in counterterrorist strikes in Pakistan, Yemen and Somalia, mostly using drones. Only a handful have been caught and brought to this country; an unknown number have been imprisoned by other countries with intelligence and other support from the United States.

This policy on targeted killing, according to experts on counterterrorism inside and outside the government, is shaped by several factors: the availability of a weapon that does not risk American casualties; the resistance of the authorities in Pakistan and Yemen to even brief incursions by American troops; and the decreasing urgency of interrogation at a time when the terrorist threat has diminished and the United States has deep intelligence on its enemies.

Though no official will publicly acknowledge it, the bottom line is clear: killing is more convenient than capture for both the United States and the foreign countries where the strikes occur. [Continue reading…]

The New York Times reports: The White House on Wednesday directed the Justice Department to release to the two Congressional Intelligence Committees classified documents discussing the legal justification for killing, by drone strikes and other means, American citizens abroad who are considered terrorists.

The White House announcement appears to refer to a long, detailed 2010 memo from the Justice Department’s Office of Legal Counsel justifying the killing of Anwar al-Awlaki, an American-born cleric who had joined Al Qaeda in Yemen. He was killed in a C.I.A. drone strike in September 2011. Members of Congress have long demanded access to the legal memorandum.

The decision to release the legal memo to the Intelligence Committees came under pressure, two days after a bipartisan group of 11 senators joined a growing chorus asking for more information about the legal justification for targeted killings, especially of Americans.

The announcement also came on the eve of the confirmation hearing scheduled for Thursday afternoon for John O. Brennan, President Obama’s choice to be director of the C.I.A., who has been the chief architect of the drone program as Mr. Obama’s counterterrorism adviser.

Critics accused Mr. Obama of hypocrisy for keeping the legal opinions on targeted killing secret, noting that in 2009 he had ordered the public release of the classified memos governing C.I.A. interrogations under President George W. Bush. Administration officials replied that the so-called enhanced interrogations had been stopped, while drone strikes continue.

Until Wednesday, the administration had refused to even officially acknowledge the existence of the documents, which have been reported about in the press. This week, NBC News obtained an unclassified, shorter “white paper” that detailed some of the legal analysis about killing a citizen and was apparently derived from the classified Awlaki memorandum. The paper said the United States could target a citizen if he was a senior operational leader of Al Qaeda involved in plots against the country and if his capture was not feasible.

Administration officials said Mr. Obama had decided to take the action, which they described as extraordinary, out of a desire to involve Congress in the development of the legal framework for targeting specific people to be killed in the war against Al Qaeda. Aides noted that Mr. Obama had made a pledge to do that during an appearance on “The Daily Show” last year.

“Today, as part of the president’s ongoing commitment to consult with Congress on national security matters, the president directed the Department of Justice to provide the Congressional Intelligence Committees access to classified Office of Legal Counsel advice related to the subject of the Department of Justice white paper,” said an administration official who requested anonymity to discuss the handling of classified material.

The official said members of the Intelligence Committees would now get “access” to the documents.

Christopher Anders, senior legislative counsel for the American Civil Liberties Union, called the president’s move “a small step in the right direction.” But he noted that the legal memo or memos were not being shared with either of the Armed Services Committees, which have jurisdiction over Pentagon strikes, or the Judiciary Committees, which oversee the Justice Department.

The public should be permitted to see at least a redacted version of the relevant memos, Mr. Anders said. “Everyone has a right to know when the government believes it can kill Americans and others,” he said. [Continue reading…]

The New York Times reports: Early in his first term, President Obama rejected the vehement protests of the Central Intelligence Agency and ordered the public disclosure of secret Justice Department legal opinions on interrogation and torture that had been written in the administration of George W. Bush.

In the case of his own Justice Department’s legal opinions on assassination and the “targeted killing” of terrorism suspects, however, Mr. Obama has taken a different approach. Though he entered office promising the most transparent administration in history, he has adamantly refused to make those opinions public — notably one that justified the 2011 drone strike in Yemen that killed an American, Anwar al-Awlaki. His administration has withheld them even from the Senate and House intelligence committees and has fought in court to keep them secret, making any public debate on the issue difficult.

But with the disclosure on Monday of a Justice Department document offering a detailed legal analysis of the targeted killing of Americans, the barricades of secrecy have been breached. Just as leaks of interrogation memos in 2004 under President Bush ignited a fierce public debate over torture, the report on the so-called white paper by NBC News instantly touched off a renewed, and better informed, public discussion about whether and when a president can order the execution of a citizen based on secret intelligence and without any trial.

The Justice Department prepared the white paper, an unclassified, 16-page document, to brief Congressional oversight committees in lieu of providing lawmakers with the far longer, classified memorandum that justified the killing of Mr. Awlaki, a New Mexico-born Sunni Muslim cleric who joined Al Qaeda’s branch in Yemen and died in an American drone strike there in September 2011. But the paper dovetails with the legal arguments in that still-secret document, as described to The New York Times in October 2011 by people who have read it.

In short, the Justice Department argued that it was lawful for the government to kill an American citizen if “an informed, high-level official” decided that the target was a ranking figure in Al Qaeda who posed “an imminent threat of violent attack against the United States” and if his capture was not feasible. While the administration’s basic legal conclusions had already been aired — including in speeches by Attorney General Eric H. Holder Jr. and other officials — the white paper provided a far more detailed legal justification.

Some human rights groups dismissed it in language reminiscent of their critiques of the Bush administration’s legal opinions on torture, taking particular aim at its flexible definition of what might constitute an “imminent” threat and the lack of any outside check on its claimed authority.

The American Civil Liberties Union called the paper “chilling.” A spokeswoman for Amnesty International said there was increasing evidence that American practices were “unlawful, violating the fundamental human right not to be arbitrarily deprived of one’s life.” [Continue reading…]

Lawyers have much more interest in constructing lines of reasoning than they do in clear communication. For that reason, the Justice Department’s white paper on the targeted killing of Americans was written not so much to articulate the policies of the U.S. government but rather as part of a legal process designed to ensure that President Obama and other U.S. officials can avoid being prosecuted for murder.

Stripped to its bare bones, the argument runs like this:

I can kill you if I think that you want to kill me. And I can kill you now or whenever I choose if I have no way of knowing when you might try to kill me.

This isn’t a basis for self-defense; it’s a justification for premeditated murder.

Spencer Ackerman writes: “Imminence” used to mean something in military terms: namely, that an adversary had begun preparations for an assault. In order to justify his drone strikes on American citizens, President Obama redefined that concept to exclude any actual adversary attack.

That’s the heart of the Justice Department’s newly-leaked white paper, first reported by NBC News, explaining why a “broader concept of imminence” (.PDF) trumps traditional Constitutional protections American citizens enjoy from being killed by their government without due process. It’s an especially striking claim when considering that the actual number of American citizens who are “senior operational leader[s] of al-Qaida or its associated forces” is vanishingly small. As much as Obama talks about rejecting the concept of “perpetual war” he’s providing, and institutionalizing, a blueprint for it. [Continue reading…]

A white paper written by the Justice Department and leaked to NBC News, lays out the reasoning that supposedly provides grounds for the U.S. government to legally kill U.S. citizens — legal grounds that would explain how President Obama had the authority to order the assassination of Anwar al-Awlaki in Yemen on September 30, 2011.

Obama placed Awlaki on a CIA kill list in April 2010. The white paper was written, however, some time after September 16, 2011.

Although the memo is undated, it cites a speech given by John O Brennan at Harvard Law School on that date, so must have been written later, quite likely after Awlaki had been killed. This legal argument was being laid out long after Obama had ordered Awlaki’s killing, strongly suggesting that he first ordered the killing but only later asked the Justice Department to construct a legal justification for an action he had already set in motion.

NBC News reports: A confidential Justice Department memo concludes that the U.S. government can order the killing of American citizens if they are believed to be “senior operational leaders” of al-Qaida or “an associated force” — even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.

The 16-page memo, a copy of which was obtained by NBC News, provides new details about the legal reasoning behind one of the Obama administration’s most secretive and controversial polices: its dramatically increased use of drone strikes against al-Qaida suspects abroad, including those aimed at American citizens, such as the September 2011 strike in Yemen that killed alleged al-Qaida operatives Anwar al-Awlaki and Samir Khan. Both were U.S. citizens who had never been indicted by the U.S. government nor charged with any crimes.

The secrecy surrounding such strikes is fast emerging as a central issue in this week’s hearing of White House counterterrorism adviser John Brennan, a key architect of the drone campaign, to be CIA director. Brennan was the first administration official to publicly acknowledge drone strikes in a speech last year, calling them “consistent with the inherent right of self-defense.” In a separate talk at the Northwestern University Law School in March, Attorney General Eric Holder specifically endorsed the constitutionality of targeted killings of Americans, saying they could be justified if government officials determine the target poses “an imminent threat of violent attack.”

But the confidential Justice Department “white paper” introduces a more expansive definition of self-defense or imminent attack than described by Brennan or Holder in their public speeches. It refers, for example, to what it calls a “broader concept of imminence” than actual intelligence about any ongoing plot against the U.S. homeland.

Michael Isikoff, national investigative correspondent for NBC News, talks with Rachel Maddow about a newly obtained, confidential Department of Justice white paper that hints at the details of a secret White House memo that explains the legal justifications for targeted drone strikes that kill Americans without trial in the name of national security.

“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 U.S. persons and interests will take place in the immediate future,” the memo states.

Instead, it says, an “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.” The memo does not define “recently” or “activities.”

As in Holder’s speech, the confidential memo lays out a three-part test that would make targeted killings of American lawful: In addition to the suspect being an imminent threat, capture of the target must be “infeasible, and the strike must be conducted according to “law of war principles.” But the memo elaborates on some of these factors in ways that go beyond what the attorney general said publicly. For example, it states that U.S. officials may consider whether an attempted capture of a suspect would pose an “undue risk” to U.S. personnel involved in such an operation. If so, U.S. officials could determine that the capture operation of the targeted American would not be feasible, making it lawful for the U.S. government to order a killing instead, the memo concludes.

The undated memo is entitled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force.” It was provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and not discussed publicly.

Although not an official legal memo, the white paper was represented by administration officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department’s Office of Legal Counsel, which provides authoritative legal advice to the president and all executive branch agencies. The administration has refused to turn over to Congress or release those memos publicly — or even publicly confirm their existence. A source with access to the white paper, which is not classified, provided a copy to NBC News.

“This is a chilling document,” said Jameel Jaffer, deputy legal director of the ACLU, which is suing to obtain administration memos about the targeted killing of Americans. “Basically, it argues that the government has the right to carry out the extrajudicial killing of an American citizen. … It recognizes some limits on the authority it sets out, but the limits are elastic and vaguely defined, and it’s easy to see how they could be manipulated.”

In particular, Jaffer said, the memo “redefines the word imminence in a way that deprives the word of its ordinary meaning.”

A Justice Department spokeswoman declined to comment on the white paper. The spokeswoman, Tracy Schmaler, instead pointed to public speeches by what she called a “parade” of administration officials, including Brennan, Holder, former State Department Legal Adviser Harold Koh and former Defense Department General Counsel Jeh Johnson that she said outlined the “legal framework” for such operations.

Pressure for turning over the Justice Department memos on targeted killings of Americans appears to be building on Capitol Hill amid signs that Brennan will be grilled on the subject at his confirmation hearing before the Senate Intelligence Committee on Thursday.

On Monday, a bipartisan group of 11 senators — led by Democrat Ron Wyden of Oregon — wrote a letter to President Barack Obama asking him to release all Justice Department memos on the subject. While accepting that “there will clearly be circumstances in which the president has the authority to use lethal force” against Americans who take up arms against the country, it said, “It is vitally important … for Congress and the American public to have a full understanding of how the executive branch interprets the limits and boundaries of this authority.” [Continue reading…]

Press release from the office of Senator Ron Wyden: With the confirmation process for Deputy National Security Advisor John Brennan to be Director of the Central Intelligence Agency set to be begin shortly, U.S. Senator Ron Wyden (D-Ore.), a member of the Senate Select Committee on Intelligence, is asking Brennan to provide Congress with the secret legal opinions outlining the government’s ability to target and kill Americans believed to be involved in terrorism.

In a letter to Brennan [PDF] sent today, Wyden reiterated his concerns that the intelligence community, Justice Department and the Administration have not been adequately forthcoming to Congress on their legal justifications for targeting and potentially killing U.S. citizens believed to be involved in terrorism activities. He said that it is important that the legal opinions guiding these activities be released so that Congress and the American people can “have full knowledge of how the executive branch understands the limits and boundaries of this authority…”

“For the executive branch to claim that intelligence agencies have the authority to knowingly kill American citizens but refuse to provide Congress with any and all legal opinions that explain the executive branch’s understanding of this authority represents an alarming and indefensible assertion of executive prerogative,” Wyden wrote in the letter.

For more than two years, Wyden has been seeking these legal opinions and others but has either received insufficient responses to his inquiries or no response at all. He has asked that prior to the start of Brennan’s confirmation hearing in the Intelligence committee that he and other committee members and their cleared staffs are given these opinions and that written assurance be given to the committee that future legal opinions related to this topic will also be provided.

“I have an obligation from my oath of office to review any classified legal opinions that lay out the federal government’s official views on this issue, and I will not be satisfied until I have received them,” Wyden continued in the letter.

Wyden also asked for a list of countries in which the intelligence community has used its lethal counterterrorism authorities. He also is seeking declassification of secret legal opinions made by the Justice Department’s Office of Legal Counsel one of which regards common commercial service agreements. He has asked for this legal opinion to be revoked.

President Obama insists that his right to kill anyone anywhere is based on law, but if the legal basis for his assassination program is so strong, why would there be any need to write a “rules” on how it gets carried out? The crafting of rules after 2,500 people have already been killed suggests two things:

1. That the process through which Obama’s kill list has been developed and applied, has to some degree been ad hoc in its nature, and

2. that the legality of this program is highly contestable — in other words, that the White House’s partially drafted rule book is nothing more than a legal fig leaf.

The New York Times reports:

Facing the possibility that President Obama might not win a second term, his administration accelerated work in the weeks before the election to develop explicit rules for the targeted killing of terrorists by unmanned drones, so that a new president would inherit clear standards and procedures, according to two administration officials.

The matter may have lost some urgency after Nov. 6. But with more than 300 drone strikes and some 2,500 people killed by the Central Intelligence Agency and the military since Mr. Obama first took office, the administration is still pushing to make the rules formal and resolve internal uncertainty and disagreement about exactly when lethal action is justified.

Mr. Obama and his advisers are still debating whether remote-control killing should be a measure of last resort against imminent threats to the United States, or a more flexible tool, available to help allied governments attack their enemies or to prevent militants from controlling territory.

Though publicly the administration presents a united front on the use of drones, behind the scenes there is longstanding tension. The Defense Department and the C.I.A. continue to press for greater latitude to carry out strikes; Justice Department and State Department officials, and the president’s counterterrorism adviser, John O. Brennan, have argued for restraint, officials involved in the discussions say.

More broadly, the administration’s legal reasoning has not persuaded many other countries that the strikes are acceptable under international law. For years before the Sept. 11, 2001, attacks, the United States routinely condemned targeted killings of suspected terrorists by Israel, and most countries still object to such measures. [Continue reading…]

The Guardian adds: Human-rights groups and peace groups opposed to the CIA-operated targeted-killing programme, which remains officially classified, said the administration had already rejected international law in pursuing its drone operations.

“To say they are rewriting the rulebook implies that there isn’t already a rulebook” said Jameel Jaffer, the director of the American Civil Liberties Union’s Center for Democracy. “But what they are already doing is rejecting a rulebook – of international law – that has been in place since [the second world war].”

He said the news was “frustrating”, because it relied on “self-serving sources”. The New York Times piece was written by one of the journalists who first exposed the existence of a White House “kill list”, in May.

The ACLU is currently involved in a legal battle with the US government over the legal memo underlying the controversial targeted killing programme, the basis for drone strikes that have killed American citizens and the process by which individuals are placed on the kill list.

Jaffer said it was impossible to make a judgement about whether the “rulebook” being discussed, according to the Times, was legal or illegal.

“It is frustrating how we are reliant on self-serving leaks” said Jaffer. “We are left with interpreting shadows cast on the wall. The terms that are being used by these officials are undefined, malleable and without definition. It is impossible to know whether they are talking about something lawful or unlawful.

“We are litigating for the release of legal memos. We don’t think the public should have to reply on self-serving leaking by unnamed administrative officials.”

The Associated Press reports: Israel is considering resuming its contentious practice of assassinating militant leaders in the Hamas-ruled Gaza Strip in an effort to halt intensified rocket attacks on Israel’s south, according to defense officials.

That Israel might renew a practice that brought it harsh international censure is evidence of the tight spot Prime Minister Benjamin Netanyahu is in. With Israeli elections two months away, rocket barrages from Gaza are disrupting the lives of 1 million residents of southern Israel, pressuring the government to come up with an effective response.

In the latest flare-up, Gaza militants have fired more than 100 rockets at Israel in recent days, triggering retaliatory Israeli airstrikes that have killed six people in Gaza.

Some Israelis are demanding a harsh military move, perhaps a repeat of Israel’s bruising incursion into Gaza four years ago. Others believe Israel should target Hamas leaders, a method it used to kill dozens of militants nearly a decade ago. [Continue reading…]

In a review of No Easy Day: The Firsthand Account of the Mission That Killed Osama bin Laden, Steve Coll writes:

In early 2009, in a speech at the National Archives, Obama announced that he would end the policy of using interrogation methods judged to be torture by the International Red Cross, and that he would close Guantánamo’s prison. He indicated that he would be open to trying some terrorists before military commissions, rather than dispatching all of Guantánamo’s inmates to federal courtrooms, but he declared that we “cannot keep this country safe unless we enlist the power of our most fundamental values.” He promised policies based on “an abiding confidence in the rule of law and due process.” He added that “fidelity to our values” is the “reason why enemy soldiers have surrendered to us in battle, knowing they’d receive better treatment from America’s Armed Forces than from their own government.”

In the years since, the president has struggled to live up to those pledges. In the one case where he took a major political risk to try a high-profile al-Qaeda-affiliated terrorist in federal court, his decision ended badly. In late 2009, on the recommendation of Attorney General Holder, Obama ordered Khalid Sheikh Mohammed, the bin Laden ally who masterminded the September 11 attacks, transferred from Guantánamo to stand trial in the Southern District of New York. Republicans accused Obama of going soft and whipped up a political backlash that forced the president to retreat; Mohammed is now facing a trial before a military commission at Guantánamo.

In planning for Abbottabad, White House lawyers would almost certainly have assured Obama that it would be legal to kill bin Laden outright. The “Authorization for the Use of Military Force” enacted by Congress a week after the September 11 attacks provided for the use of deadly force against al-Qaeda’s leaders. Also, under international and American laws arising from the rights of self-defense, if a terrorist is actively planning deadly operations, it can be legal to strike first. We know from White House disclosures that Obama seriously considered bombing the Abbottabad compound to smithereens. He demurred out of concern that it might not be clear after the attack whether bin Laden had been there at all. Yet if the president had decided on bombing, he would surely have justified his decision by pointing to the principles of self-defense, just as he uses this doctrine to justify the dozens of drone strikes he has authorized against suspected militants in countries where the United States is not formally at war.

The Abbottabad raid, as it was ultimately designed, seems to have brought into play different questions of international and American law concerning the requirement of soldiers to accept surrenders when they are offered. Having chosen to go in on the ground, Obama evidently did not wish to design a mission that precluded the theoretical possibility that bin Laden might surrender. Instead, he approved rules of engagement that made bin Laden’s surrender all but impossible.

Coll concludes:

[T]he Obama administration’s terrorist-targeting and detention system is heavily biased toward killing, inconsonant with constitutional and democratic principles, and unsustainable. The president has become personally invested in a system of targeted killing of dozens of suspected militants annually by drone strikes and Special Forces raids where the legal standards employed to designate targets for lethal action or to review periodic reports of mistakes are entirely secret.

Rosa Brooks writes: In 1999, Qiao Liang and Wang Xiangsui, both colonels in China’s People’s Liberation Army, published a slender book called Unrestricted Warfare. The two officers predicted that technological innovations and globalization would change warfare almost beyond recognition. In a world of cyberattacks, asymmetric warfare, and transnational terrorism, they wrote, “the three indispensable ‘hardware’ elements of any war … soldiers, weapons and a battlefield … have changed so that it is impossible to get a firm grip on them.… [I]s the war god’s face still distinct?”

Qiao and Wang published Unrestricted Warfare two years before the 9/11 attacks, and their description of likely changes in warfare was strikingly prescient. In previous columns, I’ve described some ways these changes challenge our most basic ideas of what a military is, does, and should do, and suggested that failing to fully confront those changes and challenges is a surefire way to end up with a national security strategy that’s both incoherent and inefficient.

It’s also a surefire way to damage the rule of law.

A lot of ink has been spilled defining the rule of law (some of it by me), but at root it’s pretty simple. The rule of law requires that governments follow transparent, universally applicable, and clearly defined laws and procedures. The goal is to prevent the arbitrary exercise of power. When you’ve got the rule of law, the government can’t fine you, lock you up, or kill you on a whim — it can only do that in accordance with pre-established rules that reflect basic notions of humanity and fairness.

When you don’t have the rule of law, life can get unpleasant. Qiao and Wang, for instance, come from a country where the rule of law is only partially realized, and arbitrary detention and executions without due process remain common. Or consider the grievances enumerated in the American Declaration of Independence: Britain’s King George III, the colonists complained, deprived them of “the benefits of Trial by Jury,” refused “his Assent to Laws for establishing Judiciary powers,” transported prisoners “beyond Seas to be tried for pretended offences,” and “affected to render the Military independent of and superior to the Civil power.”

Bad stuff! Americans fought a long and bloody war over it.

Today, however, the very same changes that challenge our long-held assumptions about the military also challenge the rule of law America once fought so hard to establish both domestically and globally. (The United States was instrumental in the creation of the United Nations and the various international human rights treaties and institutions.) For when the idea of “war” loses definition — when the war god’s face grows indistinct — we lose any principled basis for deciding when the law of war applies, and when it doesn’t. [Continue reading…]

It was one of the biggest secrets of the post-9/11 era: soon after the attacks, President Bush gave the CIA permission to create a top secret assassination unit to find and kill Al Qaeda operatives. The program was kept from Congress for seven years. And when Leon Panetta told legislators about it in 2009, he revealed that the CIA had hired the private security firm Blackwater to help run it. “The move was historic,” says Evan Wright, the two-time National Magazine Award-winning journalist who wrote Generation Kill. “It seems to have marked the first time the U.S. government outsourced a covert assassination service to private enterprise.”

The quote is from his e-book How to Get Away With Murder in America, which goes on to note that “in the past, the CIA was subject to oversight, however tenuous, from the president and Congress,” but that “President Bush’s 2001 executive order severed this line by transferring to the CIA his unique authority to approve assassinations. By removing himself from the decision-making cycle, the president shielded himself — and all elected authority — from responsibility should a mission go wrong or be found illegal. When the CIA transferred the assassination unit to Blackwater, it continued the trend. CIA officers would no longer participate in the agency’s most violent operations, or witness them. If it practiced any oversight at all, the CIA would rely on Blackwater’s self-reporting about missions it conducted. Running operations through Blackwater gave the CIA the power to have people abducted, or killed, with no one in the government being exactly responsible.” None of this is new information, though I imagine that many people reading this item are hearing about it for the first time.

Isn’t that bizarre?

The bulk of Wright’s e-book (full disclosure: I help edit the website of Byliner, publisher of the e-book) tells the story of Enrique Prado, a high-ranking CIA-officer-turned-Blackwater-employee who oversaw assassination units for both the CIA and the contractor. To whom was this awesome responsibility entrusted? According to Wright’s investigation, a federal organized crime squad run out of the Miami-Dade Police Department produced an investigation allegedly tying Prado to seven murders carried out while he worked as a bodyguard for a narco crime boss. At the time, the CIA declared him unavailable for questioning; the investigation was shut down before he was arrested or tried.

Human Rights Watch: In a statement at the Woodrow Wilson Center on April 30, 2012, chief US counterterrorism advisor John Brennan sought to clarify and justify the US use of aerial drones in targeted killings in Pakistan, Yemen, and elsewhere.

He acknowledged that all targeted killings are governed by the requirements of international and domestic US law. At the same time, he asserted, consistent with previous statements of administration officials, that targeted killings are justified under the laws of war against anyone who is “part of” al Qaeda, the Taliban, or associated forces, even in situations far from a recognizable battlefield. However, including anyone ambiguously considered “part of” an armed group as a valid military target exceeds what is permissible under the laws of war. During an armed conflict between a state and a non-state armed group, it is lawful to target only persons taking a direct part in hostilities. This would include individuals planning and directing operations, but not those linked to the armed group in a non-operational way.

Moreover, “part of” is an elastic standard, and given the unilateral way in which it is being applied, it is dangerous to suggest that only the laws of war are relevant. Rather, in situations away from a recognized battlefield, the more appropriate standard is found in international human rights law. It permits the use of force only as a last resort to stop an imminent threat to life, not simply because someone is “part of” a violent organization or may have committed acts of violence in the past. Brennan mentioned these standards – pledging that the US will use lethal force not to punish individuals for past acts, but against those it believes are planning or carrying out future attacks, and only in parts of the world where arresting a suspect is not feasible. But he treats these as discretionary, not as legal requirements. In the case of the “imminence” requirement, he incorrectly suggests it is legally binding only when US citizens are targeted, though in fact it applies to all people, irrespective of citizenship.

Addressing these concerns is all the more important because, as Brennan acknowledged, many nations are seeking and will obtain drone technology. He said the administration was “very mindful that as our nation uses this technology, we are establishing precedents that other nations may follow, and not all of them will be nations that share our interests or the premium we put on protecting human life, including innocent civilians.” Because the US treats many of the most important constraints on the use of force as matters of discretionary prudence rather than legal requirements, the US approach would not forbid the Russians to target an alleged Chechen militant in New York, or the Chinese a Uighur separatist in Washington, DC, if they said they were at war with these groups and the US didn’t apprehend them. That is a deeply troublesome precedent to set. If the US is in fact willing to live within these constraints as a matter of policy, it should be willing to promote wider observance of them as a matter of law.

Brennan says the administration is committed to “greater transparency,” but then suggests that this commitment is satisfied – if not exceeded – by his speech. Despite administration assertions that “innocent civilians” have not been injured or killed, except in the “rarest of circumstances,” there has been no clear accounting of civilian loss or opportunity to meaningfully examine the administration’s assertions. Moreover, given that the CIA is one of the least transparent agencies, with no tradition of public accountability, Human Rights Watch repeats its call to transfer command of drone operations to the US armed forces.

Mya Guarnieri writes: The recent escalation between Israel and Gaza began after Israeli forces assassinated Zuhair al-Qaissi, a leader of the Popular Resistance Committees (PRC), a militant group composed of members of various Palestinian parties. Haaretz noted that the PRC was “the organisation that captured Gilad Shalit”, the Israeli soldier who was freed in October 2011. The army says that al-Qaissi was behind the August 2011 attack that took place on the Israeli-Egyptian border – even though the PRC denied involvement and it was later revealed that the militants came from Sinai, not Gaza.

While army sources took care to point out al-Qaissi’s alleged involvement in the August 2011 incident, his assassination wasn’t just an act of punishment. No, Israel killed him on the basis of secret evidence – evidence that is not subject to legal or judicial review – that supposedly proves that al-Qaissi was planning a terror attack. Never mind that the Israeli supreme court’s December 2006 ruling placed numerous restrictions on such assassinations.

Fatmeh el-Ajou, an attorney with Adalah, the legal centre for Arab minority rights in Israel, explains that while the judgment did not place a blanket prohibition on targeted killings, it stated that the decision to carry out an assassination must be made on a case-by-case basis, “depending on the evidence that [security forces] have”. But, without seeing the security forces’ secret evidence, it’s impossible to know if al-Qaissi was indeed planning an attack, and if the army was in line with the 2006 ruling. There’s no transparency in this so-called democracy and, without transparency, there is no accountability to the state’s highest court. “From the perspective of human rights law,” el-Ajou adds, “assassinations are not legitimate … They should only be carried out if there is a ‘ticking bomb.’ [Suspects] should be brought to trial.”

Glenn Greenwald writes: In a speech at Northwestern University yesterday, Attorney General Eric Holder provided the most detailed explanation yet for why the Obama administration believes it has the authority to secretly target U.S. citizens for execution by the CIA without even charging them with a crime, notifying them of the accusations, or affording them an opportunity to respond, instead condemning them to death without a shred of transparency or judicial oversight. The administration continues to conceal the legal memorandum it obtained to justify these killings, and, as The New York Times‘ Charlie Savage noted, Holder’s “speech contained no footnotes or specific legal citations, and it fell far short of the level of detail contained in the Office of Legal Counsel memo.” But the crux of Holder’s argument as set forth in yesterday’s speech is this:

Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of Al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.

When Obama officials (like Bush officials before them) refer to someone “who is a senior operational leader of Al Qaeda or associated forces,” what they mean is this: someone the President has accused and then decreed in secret to be a Terrorist without ever proving it with evidence. The “process” used by the Obama administration to target Americans for execution-by-CIA is, as reported last October by Reuters, as follows:

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 . . . 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 . . . Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.

As Leon Panetta recently confirmed, the President makes the ultimate decision as to whether the American will be killed: “[The] President of the United States obviously reviews these cases, reviews the legal justification, and in the end says, go or no go.”

So that is the “process” which Eric Holder yesterday argued constitutes “due process” as required by the Fifth Amendment before the government can deprive of someone of their life: the President and his underlings are your accuser, your judge, your jury and your executioner all wrapped up in one, acting in total secrecy and without your even knowing that he’s accused you and sentenced you to death, and you have no opportunity even to know about, let alone confront and address, his accusations; is that not enough due process for you? At Esquire, Charles Pierce, writing about Holder’s speech, described this best: “a monumental pile of crap that should embarrass every Democrat who ever said an unkind word about John Yoo.” [Continue reading…]

Adam Serwer writes: On Monday, the Obama administration explained when it’s allowed to kill you.

Speaking to students and faculty at Northwestern University law school, Attorney General Eric Holder laid out in greater detail than ever before the legal theory behind the administration’s belief that it can kill American citizens suspected of terrorism without charge or trial. In the 5,000-word speech, the nation’s top law enforcement official directly confronted critics who allege that the targeted killing of American citizens violates the Constitution.

“‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security.” Holder said. “The Constitution guarantees due process, not judicial process.”

Who decides when an American citizen has had enough due process and the Hellfire missile fairy pays them a visit? Presumably the group of top national security officials—that, according to Defense Secretary Leon Panetta, decides who is targetable and forwards its findings to the president, who gives final approval.

There won’t be any drone strikes in Denver anytime soon. But you might want to be careful when traveling abroad, because Holder made it clear that there are no geographical limits in the fight against Al Qaeda. “Neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan,” Holder said. “We are at war with a stateless enemy, prone to shifting operations from country to country.”

Holder’s speech did outline some concrete limits to when the US government is allowed to target its own citizens. The target has to pose an “imminent threat of violent attack” to the US and be beyond the ability of American authorities to capture, and the strike can’t violate international standards governing the use of force by killing too many civilians or noncombatants.

But don’t assume that when Holder says “imminent threat of violent attack,” he means that you’re actually part of a specific plot threatening American lives. “The Constitution does not require the president to delay action until some theoretical end stage of planning when the precise time, place, and manner of an attack become clear,” Holder said. That would introduce an “unacceptably high risk of failure.” When he refers to “failure,” Holder presumably means failing to kill the target before the attack or plan for an attack materializes, not the possibility that the government might accidentally kill an innocent person.

If the standards for when the government can send a deadly flying robot to vaporize you sound a bit subjective, that’s because they are. Holder made clear that decisions about which citizens the government can kill are the exclusive province of the executive branch, because only the executive branch possess the “expertise and immediate access to information” to make these life-and-death judgments.

The Bureau of Investigative Journalism reports: The CIA’s drone campaign in Pakistan has killed dozens of civilians who had gone to help rescue victims or were attending funerals, an investigation by the Bureau for the Sunday Times has revealed.

The findings are published just days after President Obama claimed that the drone campaign in Pakistan was a ‘targeted, focused effort’ that ‘has not caused a huge number of civilian casualties.’

Speaking publicly for the first time on the controversial CIA drone strikes, Obama claimed last week they are used strictly to target terrorists, rejecting what he called ‘this perception we’re just sending in a whole bunch of strikes willy-nilly’.

‘Drones have not caused a huge number of civilian casualties’, he told a questioner at an on-line forum. ‘This is a targeted, focused effort at people who are on a list of active terrorists trying to go in and harm Americans’.

But research by the Bureau has found that since Obama took office three years ago, between 282 and 535 civilians have been credibly reported as killed including more than 60 children. A three month investigation including eye witness reports has found evidence that at least 50 civilians were killed in follow-up strikes when they had gone to help victims. More than 20 civilians have also been attacked in deliberate strikes on funerals and mourners. The tactics have been condemned by leading legal experts.