Matthew P. Harrington / The Gazette – 2011-11-15 18:39:45

http://www.montrealgazette.com/news/targeted+killing+president+prosecutor+judge+jury/5685118/story.html

In a Targeted Killing, the US President
Was Prosecutor, Judge and Jury

MONTREAL (November 10, 2011) — Imagine that the president of the United States has a secret meeting with members of the Central Intelligence Agency and representatives of other security services.

Imagine, as well, that at this meeting the CIA presents evidence that you are engaged in terrorist activity outside the United States. After hearing the evidence, the president authorizes the CIA to take action to eliminate the threat.

You are never notified of this meeting nor are you shown any of the evidence upon which the president has made his decision. That is, until one morning as you sit down for breakfast, a Hellfire missile crashes through your front window, killing you and everyone else in the house.

While the exact details remain classified, this scenario has largely played out in the attack on Anwar al-Awlaki, an American citizen accused of being involved in the planning of no less than 19 terrorist plots. Although there is little doubt that al-Awlaki was a despicable character, the manner in which the American government eliminated this particular threat should give pause to anyone concerned about the expansion of government power in the wake of 9/11.

This is because the US Constitution provides that “no person shall be deprived of life, liberty, or property without due process of law.” In effect, the Constitution requires that a citizen be first charged with an offence and given the right to defend himself or herself against the charges before the government can put him or her to death.

Under the government’s current policy, however, the president takes upon himself the power to act as prosecutor, judge and jury, thus ultimately determining whether a person is entitled to live or die. The president’s decision to target an individual for death by missile is not reviewable by any other authority.

The killing of al-Awlaki presents the problem in bold relief. Unlike many other terror targets, al-Awlaki was a US citizen whose killing was justified on the grounds that, in working with al-Qaida, he had committed treason against the United States.

Yet, if that is so, al-Awlaki’s killing is an even more egregious violation of the constitution, since that document also declares that “no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”

Al-Awlaki was never given the opportunity to hear the charges against him, let alone have his treason proved by two witnesses in “open court.” On the contrary, he was accused of treason by the CIA and convicted and sentenced in President Obama’s office.

While this particular attack raises legal and constitutional issues unique to American citizens, the practice of targeted killings should be concerned to all nations.

The US government has asserted the power to target and kill any person engaged in terrorism against US interests.

If the US government is willing to target its own citizens abroad in the face of serious constitutional objections, what protections are available to those who do not possess American citizenship? Shouldn’t leaders in other countries be concerned about a policy that allows the US president to determine on his or her own that one of their citizens is a candidate for a missile attack?

In the days since the attack, many commentators have applauded al-Awlaki’s killing, justifying it on the grounds that the West is engaged in a “war on terror.” They argue that targeted killings are necessary because the suspects cannot be tried in open court, either because the perpetrators would be difficult to capture or because the evidence of their guilt would not be admissible under the normal rules of criminal procedure.

The problem with this argument, however, is that in al-Awlaki’s case no attempt was made to actually capture him; nor did the government ever attempt to indict him in absentia. And this, of course, is the fundamental problem with targeted drone attacks.

While it is true that procedures in absentia are not ideal because they frequently limit an accused’s ability to defend himself or herself, surely some meaningful review by a judicial body ought to be required before the US president makes a unilateral decision in secret to kill someone.

As an American citizen, Anwar al-Awlaki would not have been eligible for detention at Guantánamo, nor would he have been subject to “waterboarding.” Yet now his own government professes to have the ability to kill him without notice or trial.

Matthew P. Harrington is a professor in the faculty of law at the Universite de Montreal.

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