Targeted killings, the laws of war, and the Justice Department memo
Published in Intrepid Report July 12, 2014
Reading the memo in which the U.S. government rationalizes the targeted killing of Anwar al-Awlaki is something akin to reading the melding of Alice In Wonderland and Nineteen Eighty-Four (“Here’s the Full Justice Department Memo That Allowed Obama To Kill an American Without Trial,” Mother Jones, June 23, 2014). The government lays out its legal justification for killing “a U.S. citizen who is a senior operational leader of al-Qaeda or its associated forces, and is actively engaged in planning to kill Americans” (28).
Before reviewing the government’s case against al-Awlaki, the long-abandoned rules or laws of war beg to be addressed. The laws of war evolved over more than one thousand years of the tortuous development of humankind. First, written by primarily religious thinkers to confront how religion could fit in with the military needs of the state, they were modified with the advent of the beginning of mass murder that resulted from the application of technology to the horror of warfare in the 20th century.
The rules of war can be divided into two categories. The first are the justifications for going to war, and the second are the laws of war that apply to an ongoing conflict. The latter is of special importance since they confront the multiple holocausts (and the Holocaust) that resulted from the application of Machiavellian political, social, religious, and economic agendas of nation states to the conduct of war both against enemies and civilians living near or in theaters of war. These rules of war gained special importance with the application of war technology to fire bombings of civilian targets, chemical and gas warfare, and genocide and attempted genocide. Their names are as familiar as The Geneva Conventions, The Covenant of the League of Nations, The Kellogg-Brian Pact, The Hague Conventions, the Charter of the United Nations, and the laws of particular nation states.
Reduced to the comprehensible, these laws and religious treatises state that a nation must be attacked to declare war, that the response must be proportional, that war can only be waged by a recognized state, that war must have a reasonable chance of success, that war must be used only as a last resort, that war must be publicly declared, that war must be fought with right intentions, and finally that civilians and prisoners of war must be treated similarly to the population of the nation(s) winning and/or fighting the war.
A look at recent history (since World War I as an artificial point at which to begin) show that the rules of war have been a gigantic failure! As a species we are remarkably “good” at perpetrating genocide, mass bombings and fire bombings, torture, vendettas and reprisals against noncombatants, and an ongoing list of horrors against humanity too numerous to list! As an illustration of the lack of respect for the laws of war, the reader need only to assess the debacle that is the U.S. involvement in war in Iraq.
On May 11, 2013, President Obama, addressing the National Defense University stated, that he “authorized the strike that took him (al-Awlaki) out.” Perhaps neither Carroll nor Orwell suited the president’s taste on that particular day and he wanted to embellish the drone strike in Yemen that killed a U.S. citizen with a more lofty reference that could have come right out of the mouth of a fictional character in The Godfather.
On March 25, 2010, then legal adviser to the State Department, Harold Hongju said, the use of lethal drone attacks, “comply [complies] with…the laws of war.” Readers need to keep in mind that al-Awlaki was killed in Yemen, a country with which the U.S. is not at war and as a U.S. citizen had the right to the protections of law for due process and the right to trial, including the right not to incriminate himself, and further, had rights as a civilian noncombatant under international laws of war. And, he had the right to employ hate speech in his sermons and writings, whether or not many readers may find that speech objectionable!
A reading of the Justice Department’s rationale for the targeted killing of al-Awlaki reads like a tortured attempt to hide every intelligence aspect of the case against al-Awlaki as sympathetic to al-Qaeda militants and a source of inspiration to them. But, never once in the massive trove of intelligence data on him is there the laying out of the specific facts and a legal case that link him directly to acts of terrorism. Yes, he encouraged radical militants with angry language against the U.S., but he could have been apprehended and brought to trial in the U.S. to face charges of inciting religious warfare in an open court.
On October 25, 2011, President Obama, speaking on network television said, “we were able to remove him (al-Awlaki) from the field” (47). The reader can conclude, reading the president’s words, that al-Awlaki was in Yemen conducting active military operations against the U.S., but the government never proved their case against al-Awlaki in an open court of law!
On page 76 of the document, the tortured arguments to condone the killing of al-Awlaki as being within the “lawful conduct of war” are presented, but never linked to any evidence of any kind to show that al-Awlaki was directly involved in anything besides encouraging those who want to make war against the U.S. Under these guidelines, a tax resister who rails violently at the government on April 15th of each year in the most vicious of language could be targeted for murder without due process.
Next, the Department of Justice memo cites the Authorization for the Use of Military Force (AUMF) passed by Congress following the September 11, 2001 attacks and extends that use of force to anyone or group associated with al-Qaeda, or acting with al-Qaeda. The report states that al-Awlaqi, as a leader of al-Qaeda in the Arabian Peninsula, posed a “continued and imminent threat“ of violence (77). Page 79 of the document states that a U.S. citizen can be subjected to lethal force under the authority granted the government by the AUMF. The AUMF further “authorizes the use of ‘necessary and appropriate’ lethal force against a U.S. citizen who has joined such an armed force,” and that this force “would not violate any possible Constitutional protections that al-Awlaqi enjoys by reason of his citizenship” (79).
According to the memo, al-Awlaki does not have a Fourth Amendment right to unreasonable search and seizure, as the government’s right to “intrusion” outweighs any rights al-Awlaki has under that amendment. In regard to the authorization of the lethal drone attack, the memo assures the reader that “the highest officers in the Intelligence Community have reviewed the basis for the lethal operation” (96).
Some readers may find Awlaki’s contacts and writings incendiary, but the First Amendment protects hate speech. Indeed, it has been common among many religious extremists and members of militias (and other hate groups) in the U.S. to openly advocate the death and destruction of those deemed enemies or potential enemies of the U.S. government (and the government itself) and those cheerleaders for state and individual mass violence have seldom had their due process rights taken away; have seldom been brought to trial; have seldom been denied the right to a trial; or targeted by an enemy force on U.S. soil. But Awlaki was a thorn in the side of a U.S. president who happens to be a Constitutional lawyer and whose intelligence apparatus placed Awlaki on the targeted kill list and assassinated him without trial. Two weeks later, also in Yemen, the same spy agencies killed Awlaki’s 16-year-old son, Abdulrahman Anwar al-Awlaki (also a U.S. citizen), who these same agencies claim was not targeted for retribution. The conclusion is that the U.S. long ago jettisoned compliance with established laws of war. Indeed, since the September 11, 2001 attacks, it has ignored those rules almost completely, while making the whole world a battlefield!
Howard Lisnoff is the author of Notes Of A Military Resister: Looking Back From A Time Of Endless War (2011), and most recently the novel A Sixties’ Love Story (2014).