When it comes to the War on Terror, it appears there is always a possibility to find legal justification for just about anything. Despite there being an “absolute” prohibition on torture under international law, John Yoo, then a Deputy Assistant Attorney at the Justice Department’s Office of Legal Counsel (OLC).
When it comes to the War on Terror, it appears there is always a possibility to find legal justification for just about anything. Despite there being an “absolute” prohibition on torture under international law, John Yoo, then a Deputy Assistant Attorney at the Justice Department’s Office of Legal Counsel (OLC), drafted a memo in 2003 asserting that the President of the United States had unlimited power to order brutal interrogations to extract information from detainees. According to Yoo, “[O]ur previous opinions make clear that customary international law is not federal law and that the president is free to override it at his discretion.” As a result of this notorious “torture memo”, thousands of prisoners were routinely abused and tortured in US-run prisons around the world, all apparently in accordance with the “law”.
Then head of Justice Department’s OLC, Steven G. Bradbury, has now called for the indefinite detention of any American citizen that the government alleges is a terrorist. Bradbury made his comments during a recent Senate hearing discussing the National Defense Authorization Act (NDAA). Bradbury is behind the times. The current US administration has already produced legal justification for assassinating such American citizens accused of terrorism. Speaking at Northwestern University law school, Attorney General Eric H. Holder Jr. disclosed the secret legal rationale behind the targeted killings or assassinations of American terror suspects. Holder said that for such a killing to be legal, it had to satisfy three conditions. First, the individual must pose an imminent threat of violent attack against the United States. Second, capture is not feasible, and finally, the operation must be conducted in a manner consistent with the applicable law of war principles. Holder confirmed that the decision to assassinate requires no judicial overview based purely on matters of expediency, as the operations require “real-time decisions,” which “depend on expertise and immediate access to information that only the executive branch may possess.” He went on: “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.”
The greatest problem with Holder’s comments is the fact that there is no judicial oversight over the decision to decide who poses an imminent threat and whether or not capture is feasible, leaving the Executive free to do as it pleases on the basis that we should trust it. There is no charge, no trial, no evidence provided to anyone apart from the opinion of the Executive that a specific individual poses such a threat or can even be identified as a terrorist.
Holder’s comments appear to offer a summary of the legal opinion justifying the policy of assassinations rather than forming the legal opinion itself. In fact, to date the US government has resisted calls for it to publish the actual memorandum that purported to legally authorize the assassination of Imam Anwar al-Awlaki, an American citizen who was killed in a drone attack in Yemen on 9-29-2011. The American Civil Liberties Union (ACLU) has now sued in court for the memo, drafted in June 2010, to be disclosed due to significant public interest matters at stake. There is an executive order banning assassinations, a federal law against murder and protections in the Bill of Rights and various strictures of the international laws of war.
Parts of the memo were leaked to the media on conditions of anonymity and the reasoning attempts to overcome the controversial aspects of the policy in the most disingenuous way. The executive order prohibiting assassination, the lawyers found, blocked unlawful killings of political leaders outside of war, but not the killing of a lawful target in an armed conflict. The federal statute that prohibits Americans from murdering other Americans abroad did not apply either because it is not “murder” to kill a wartime enemy in compliance with the laws of war. But would it comply with the laws of war if the drone operator who fired the missile were a CIA official, who unlike a soldier wore no uniform? The memo concluded that this would not be a war crime, although the operator might be theoretically in jeopardy of being prosecuted in a Yemeni court for violating Yemen’s domestic laws against murder, a highly unlikely possibility. The memo dances around the Bill of Rights that guarantees the government cannot seize persons unreasonably or deprived of their life “without due process of law”. Citing a number of cases allowing American citizens who had joined enemy forces to be detained or prosecuted by military commission, the memo concluded what was reasonable and the process that was due was different for people like al-Awlaki than for ordinary criminals.
Interestingly, the memo was drafted by David Barron and Martin Lederman, who were both lawyers in the OLC at the time. Lederman gained public fame during the Bush years for his relentless criticism of the legal arguments underpinning Washington’s efforts to expand executive power in the name of the War on Terror. This same person is now supplying the legal justification for one of the most radical War on Terror powers of all: the ability to assassinate US citizens with no due process. Barron and Lederman even co-wrote a Harvard Law Review article urging greater restraints on the war powers of the commander-in-chief.
The base justification for Lederman’s conclusion that al-Awlaki could be killed was that the Justice Department concluded that he was covered by the authorization to use military force against al-Qaeda that Congress enacted shortly after the September 11 attacks. In other words, he became an “enemy combatant” with whom the US is at war. This was precisely the theory repeatedly offered by the Department of Justice in the Bush era for far less draconian issues than assassinating an American citizen and indeed one which Lederman vehemently rejected, as reflected in his attack on the decision to designate Jose Padilla as an “enemy combatant” and detain him without charge.
This underscores the fundamental problem with Holder’s claim that “due process” is fundamentally different from “judicial process”. In situations where vital legal issues are resolved by those appointed by the president within his own executive branch, rather than by independent courts, the legal rubber stamp will always be found to justify the unjustifiable — detention without trial, intrusive surveillance, torture, war and now assassination. It is for this reason that the US and other countries historically known to respect the rule of law have a system of checks and balances in play and a doctrine of the separation of powers, so that important decisions affecting life and liberty would not be taken in secret behind closed doors by a select group of individuals, but would require judicial sanction and approval in open court.
Holder’s justification is just the latest example of how the US is rapidly emerging as one of the worst dictatorial regimes in the world at a time when traditional dictators of the Arab world are being overthrown by their people.