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Defense / National Security

The Age of Acceptable Assassination

Obama’s targeted-killing program may be setting a dire precedent. Exhibit A: The Israeli killing of Jabari.

Palestinian mourners carry the body of Hamas top military commander Ahmed Jabari, killed in an Israeli strike on Wednesday, during his funeral in Gaza City, Thursday, Nov. 15, 2012.  (AP Photo/Hatem Moussa)

photo of Michael Hirsh
November 15, 2012

It has begun. The Obama administration’s permanent embrace of "targeted killings" – what used to be called assassination – is setting a precedent for other nations, whose leaders are beginning to establish this as policy. Exhibit A: Israeli officials openly announced on Wednesday that their forces had targeted Ahmed al-Jabari, military chief of Hamas, in a “surgical strike” and killed him. 

Although the Israelis did not cite the U.S. policy as a precedent, and Obama did not mention it at his first postelection news conference, on Wednesday, Israeli President Shimon Peres called Obama to tell him about the operation, calling Jabari a "mass murderer" who organized many terrorist activities. Jabari was killed by a pinpoint attack as he drove along a Gaza street, much as a U.S. drone strike in 2011 hit Anwar al Awlaki, the U.S.-born radical cleric identified as “chief of external operations”  for al-Qaida on the Arabian Peninsula, who was killed in Yemen as he rode in a convoy.

The Israelis have used targeted killing for years, but usually covertly and under a moral cloud. Human-rights activists and legal scholars fear that by aggressively ratcheting up its drone and special-ops targeted killing program, and acknowledging a “kill list,” the Obama administration is running a morally murky foreign policy of its own, one that could be cited by, say, Russian or Chinese officials who want to rid themselves of political enemies. Taliban and other anti-American Pakistanis recently even sought to justify the shooting of a 14-year-old school girl, Malala Yousefzai, as the moral equivalent of U.S. drone strikes inside Pakistan that kill innocents as "collateral damage."
 
“We’ve long expressed concern that if the limits on the president’s authority to conduct targeted killings aren’t very clearly and carefully delineated, the U.S. practice could provide justification to other countries to employ those same tactics,” says Tom Malinowski of Human Rights Watch. “One could imagine the Russian saying that under a version or a caricature of the U.S. theory, they have the right to kill Chechens, including those living in France or the United States, on the ground they are somehow linked to terrorists. The Chinese could do the same with the Uighurs.”

The Obama administration, in making the case that this is a new permanent way of war, has gingerly sought to offer up a legal and moral justification for what remains nominally a covert policy. In a remarkable moment last April, John Brennan—a leading candidate to succeed David Petraeus as head of the CIA—for the first time publicly acknowledged the program: “Yes, in full accordance with the law, and in order to prevent terrorist attacks on the United States and to save American lives, the United States government conducts targeted strikes against specific al-Qaida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones. And I’m here today because President Obama has instructed us to be more open with the American people about these efforts.” 

Yet some senior U.S. officials are resisting even these efforts at discussing the policy. Retired Adm. Mike Mullen, the former chairman of the Joint Chiefs, recently said that his “jaw dropped” when he heard Brennan that day. Brennan said such killings are both legal and ethical. “In this armed conflict, individuals who are part of al-Qaida or its associated forces are legitimate military targets. We have the authority to target them with lethal force just as we target enemy leaders in past conflicts, such as Germans and Japanese commanders during World War II.” 

But critics say that, quite unlike the declared war of that era, the U.S. is now engaged in a more or less permanent war. Although the Obama administration has sought to alleviate that problem by discarding the Bush administration's old concept of a "global war on terror" and dramatically narrowing its focus to al-Qaida, new Qaida-style cells are incubating in the extremist groups enfranchised by the Arab Spring, and America just lost its first ambassador in the line of duty since 1979 in a terrorist attack. Critics say that the U.S. is not only putting itself in permanent violation of its most fundamental values but it is also extinguishing itself forever as a beacon for universal human rights. “We don’t know how many hundreds of innocent civilians have been killed in these attacks, each one approved by the highest authorities in Washington. This would have been unthinkable in previous times,” former President Jimmy Carter wrote in an op-ed in The New York Times last June. 

Ironically, there seems to have been more of a moral controversy over the detention and interrogation policies of the George W. Bush administration than there has been over the harsher policy of killing, rather than merely torturing, suspects.

Much of the debate has swirled around Obama’s order in 2011 to assassinate Awlaki, whose teenage son was also killed. The strikes were the first known to be launched against an American (Awlaki had dual Yemeni-U.S. citizenship). His and his son's deaths raised legal and moral issues about the evidence against him, whether he was given due process of law, and the constitutional basis of the administration’s covert strike program. Last summer the American Civil Liberties Union and the Center for Constitutional Rights filed a lawsuit alleging that that killings of Awlaki and his son violated their constitutional rights because “the United States was not engaged in an armed conflict with or within Yemen” and “these killings rely on vague legal standards, a closed executive process, and evidence never presented to the courts.” 

John Bellinger, the State Department chief counsel during the Bush administration, said the Obama administration is benefiting from constitutional ambiguities about the nature of due process against an enemy, even if he is an American citizen. Under the administration’s legal reasoning, Awlaki and other suspected Qaida terrorists could be targeted either because they are deemed to pose an “imminent threat” or because they are identified as part of an enemy army. “The requirements of due process to kill an American outside the United States as part of an enemy army are really not clear,” Bellinger said. “We know under the Constitution there must be due process to deprive Americans of life or liberty, but the requirements of what process is due is not clear."

What is becoming clearer, however, is that by committing itself permanently to these policies, America is setting a new precedent, one that it may not be proud of in the long run

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