Is the U.S. government contemplating the use of targeted killings within the U.S.? The position of the Obama administration and its senior policymakers is far from clear on this very important point. The practice of targeted killings by both the Bush and the Obama administration has been shrouded in much secrecy. What is publicly known about the targeting process has been deliberately leaked by the Obama administration itself and is suspect since the objective behind these leaks seems to be to persuade the public that extreme care is taken and that international and domestic laws are respected. In 2011 former CIA legal counsel John Rizzo explained in a Newsweek interview that there is a thorough legal review before anybody can be placed on a ‘kill list’. The administration has stressed many times its commitment to strictly following International Humanitarian Law when ordering a targeted attack on a terrorist abroad. However, all these public assurances are meaningless in the absence of any possibility of holding members of the CIA or the administration accountable for cases in which IHL has been violated. It is not possible to prosecute drone operators and their superiors without the access to information about who was targeted for what reason based on what evidence and under which exact circumstances. The administration has consistently refused to provide details about its targeted killing program(s) to civilian courts, stating state secret privilege. There is little transparency in the drone strikes in Pakistan, Yemen, and Somalia, and the public knows even less about other types of targeted attacks against individuals elsewhere.

What is known is that the Bush administration has extrajudicially detained without trial a few terrorism suspects within the U.S., such as Ali Saleh Kahlah al-Marri, who is held in a military brig in South Carolina. The NDAA of 2012 retroactively legalized the practice of detaining U.S. citizens/residents by stating that members of Al Qaeda or associated groups engaged in hostilities in the U.S. can be detained by the U.S. military in compliance with international law for the duration of hostilities. Since the ‘war on terror’ has no projected end date it could mean the indefinite detention of terrorism suspects without trial. In effect, the NDAA 2012 declared the U.S. to be part of a global battlefield. Members of the Bush and Obama administrations have repeatedly stated that the ‘war on terror’ has no geographic limitations or boundaries and that it must be possible to ‘kill or capture’ members of Al Qaeda wherever they are. This suggests that the whole world is a battlefield and that anywhere a terrorist is located, measures taken against them are only constrained by the limitations of IHL. The overall legal reasoning of the Obama administration for targeted killing also raises the suspicion that members of ‘Al Qaeda and its associated groups’ could be also subjected to targeted killing on U.S. soil.

Attorney General Eric Holder gave a speech at the Northwestern University in March 2012 in which he outlined the administration’s rationale and justification for killing American citizens engaged in terrorism in targeted attacks. According to Holder, American citizens have a guaranteed right to “due process,” but not to “due judicial process.” In his view the U.S. government’s judicial review prior to a targeted killing of a U.S. citizen would satisfy the U.S. constitution’s requirement of due process. Although Holder is correct in stating that American citizens engaged in hostilities against their own country are not immune from being subjected to targeted attacks against them in the context of an armed conflict, it still misses the point whether or not Americans could be legally targeted outside of a battlefield and in situations where they are not currently engaged in hostilities. Eric Holder’s speech stirred up a lot of controversy and it resulted in a questioning of FBI Director Robert Mueller by Congress concerning the administration’s position with respect to targeting U.S. citizens on U.S. soil. When asked by Congressman Tom Graves Mueller said that he could not answer the question because he was not sure whether it was addressed in Holder’s speech or not. He promised to get back to Graves on the issue, but up to now there has not been any public clarification of the issue.

A White Paper of the Department of Justice leaked on February 5, 2013 gives three conditions for the use of targeted killings: “1) an informed high level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; 2) capture is infeasible and the United States continues to monitor whether capture becomes feasible; and 3) the operation would be conducted in a manner consistent with applicable law of war principles.” The White Paper tries to clarify several of the terms used in these conditions, but largely fails to do so. The language is vague enough to leave open at least the possibility of domestic targeting of suspected terrorists. Journalist and political activist Chris Hedges claims that the paper looks so amateurish as if it was written by a first-year law student. Further questions have been raised by Congressman Trey Gowdy with respect to the possible domestic targeting of terrorists. “Why could the same analysis not be employed for killing Americans that you suspect are part of al Qaeda on American soil? If you’re going to use the 5th and 14th Amendment to justify it, why can you not do it on American soil? What’s the difference?” Congressman Gowdy compared the procedures used for targeted killings to the legal procedures required under the U.S. constitution and within the legal system of the U.S. to sentence somebody to death. It would be a great for the government and it would usually take years, if not decades to carry out a death sentence. In the case of the targeted killing of a U.S. citizen there would be simply a senior government official, who determines that an individual presents an imminent threat and that capture would be infeasible.

When John Brennan was interviewed by the U.S. Senate in relation to his confirmation as new Director of the CIA, Senator Wyden asked him: ’Let me ask you several other questions with respect to the President’s authority to kill Americans. I ask you how much evidence the President needs to decide that a particular American can be lawfully killed and whether the administration believes that President can use this authority inside the United States.’ Brennan essentially offered a non-answer by pointing out that openness with respect to drone strikes needs to be optimized as well as secrecy for protecting national security. He further stressed that the CIA operates within the legal boundaries of the DoJ without actually explaining what these boundaries are. In the end, the hearing failed to clarify the issue of whether or not the administration considers the domestic targeting of terrorists legal or not.

It is deeply troubling that the Obama administration cannot provide a definitive answer to a fairly straightforward question, namely whether the rules for the targeted killing of Americans outside of the U.S. may also apply within the U.S. Up to now it seems that the administration wants to keep at least the option open to target terrorist leaders also inside the country should happen to be located there.

Bibliography

Herridge, Catherine, ‘FBI Director: Have to Check Whether Targeted Killing Rule Is Outside U.S. Only’, Fox News, 7 March 2012.

Mckelvey, Tara, ‘Inside the Killing Machine’, Newsweek Magazine, 13 February 2011.

U.S. Department of Justice, 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, leaked to NBC News on February 5, 2013.

Van Susteren, Greta, ‘Obama Drone Program’s Potential Targeted Killing of American Citizens Abroad Opens Dangerous Legal Slippery Slope’, Fox News, 5 February 2013.

Wyden, Ron, ‘Wyden at Brennan Confirmation Hearing for CIA Director (Part 1), <http://www.wyden.senate.gov/news/video-and-audio/view/wyden-at-brennan-confirmation-hearing-for-cia-director-part-1>, 11 February 2013.