Newsgroup: it.politica.internazionale
Titolo: Killing Citizens in Secret

http://www.nybooks.com/blogs/nyrblog/2011/oct/09/killing-citizens-secret
 
 
Killing Citizens in Secret
 
David Cole
 
Sunday’s New York Times reported that the Justice Department’s Office of 
Legal Counsel has produced a fifty-page legal memo that purportedly 
authorized President Obama to order the killing of US citizen, Anwar 
al-Awlaki, without a trial. Last month, the US carried out that order 
with a drone strike in Yemen that killed al-Awlaki and another US 
citizen traveling with him. The strike was front-page news, and 
apparently was undertaken with the approval of Yemen authorities, yet as 
it was a “covert operation,” the Obama administration has declined even 
to acknowledge that it ordered the killing.
 
So now we know that there is a secret memo that authorized a secret 
killing of a US citizen—and both the memo and the killing remain 
officially “secret” despite having been reported on the front page of 
The New York Times. Whatever one thinks about the merits of presidents 
ordering that citizens be killed by remote-controlled missiles, surely 
there is something fundamentally wrong with a democracy that allows its 
leader to do so in “secret,” without even demanding that he defend his 
actions in public.
 
As I have argued here previously, it is not necessarily illegal, in 
wartime, to kill a citizen without a trial. Lincoln’s Union Army did it 
repeatedly, of course, during the Civil War. If US soldiers had 
confronted al-Awlaki carrying a gun on an Afghan battlefield, the laws 
of war would permit them to shoot him on the spot. No one could credibly 
maintain that they would have to wait till a jury of his peers convicted 
him and the Supreme Court denied review.
 
But al-Awlaki was not on the battlefield. He was in Yemen. And he was 
not even alleged to be a part of al-Qaeda or the Taliban, the two 
entities against whom Congress authorized the President to use military 
force in a resolution passed one week after the terrorist attacks of 
September 11, 2001, which continues to provide the legal basis for the 
war on al-Qaeda and the conflict in Afghanistan. Al-Awlaki was alleged 
to be a leader of al-Qaeda in the Arabian Peninsula (AQAP), an 
organization in Yemen founded long after the September 11 attacks. He 
had never been tried, much less convicted, for any terrorist crime. He 
corresponded by email with Nidal Hasan six months before Hasan shot and 
killed 13 men at Fort Hood in November 2009, and was allegedly involved 
in planning the foiled airliner bombing near Detroit on Christmas Day 
2009. But he was not charged in either crime. Neither attack, moreover, 
was carried out by al-Qaeda or the Taliban. Are unofficial “allegations” 
of encouragement of or involvement in terrorism enough to authorize the 
secret execution of a citizen?
 
The New York Times reports that the memo concluded that al-Awlaki could 
be killed without trial because he was the leader of AQAP, which it 
deemed a “co-belligerent,” effectively fighting alongside al-Qaeda 
itself; because he posed an imminent threat to the United States; and 
because killing was a permissible option if capturing him in Yemen was 
deemed “not feasible.” If all of these conditions were in fact met, 
al-Awlaki’s targeted killing may well have been justified as an incident 
of war.
 
But none of these assertions has been tested in any forum, and at a 
minimum there are serious questions about the latter two. What is the 
“imminent” threat that al-Awlaki posed? No one has claimed that he was 
involved in planning an imminent terrorist attack on the United States 
when the drone missile struck. The memo reportedly argued that the 
“imminence” criterion could be satisfied by a finding that he was the 
leader of a group that sought to attack the United States whenever it 
could, even if he was involved in no such attacks at the time he was 
killed. But that surely stretches the imminence requirement beyond 
recognition, virtually to the point of abandoning it altogether.
 
And why was it “not feasible” to capture al-Awlaki alive? The Yemen 
authorities reportedly permitted the drone attack. We are apparently 
working with them very closely, and may well have special operations 
forces on the ground there. Even in the case of the raid on Bin Laden’s 
compound in Pakistan, administration officials considered the 
possibility of capture instead of assassination. Was it really not 
possible to try to capture al-Awlaki? What does it take to show that 
such an option is not feasible?
 
Answering these questions is critical to assessing the legality of 
al-Awlaki’s killing—and its implications for continuing drone killings 
of suspected terrorists in many parts of the world. But because the 
Obama administration will neither acknowledge that it killed al-Awlaki, 
nor make public the legal case for doing so, the questions remain 
unanswered.
 
As American citizens we have a right to know when our own government 
believes it may execute us without a trial. In a democracy the state’s 
power to take the lives of its own citizens must be subject to 
democratic deliberation and debate. War of course necessarily involves 
killing, but it is essential that at a minimum, the lines defining the 
state’s power to kill its own are clearly stated, and 
public—particularly when the definition of the enemy and the lines 
demarcating war and peace are as murky as they are in the current 
conflict. Leaked accounts to The New York Times are no substitute for 
legal or democratic process. As long as the Obama administration insists 
on the power to kill the people it was elected to represent—and to do so 
in secret, on the basis of secret legal memos—can we really claim that 
we live in a democracy?
 
 
-- 
Namib
 
"Per realitatem et perfectionem idem intelligo" (Baruch Spinoza)

 Procuratore di Trani.
che non indaga sui TK, eh...