Thursday, April 8, 2010
According to a report in the New York Times yesterday, the Obama Administration has taken the unusual step of authorizing the targeted killing of a U.S. citizen, Anwar al-Awlaki, a Muslim cleric who is believed to be connected to al Qaeda. In other words, the U.S. government has determined to execute one of its own citizens without trial and all the procedural protections that come with it. The U.S. government believes that Mr. Awlaki is hiding in Yemen and has moved from encouraging attacks on the U.S. to actively participating in them. The government is reported to have information linking Mr. Awlaki to Nidal Malik Hasin, the psychiatrist accused of killing 13 people at Fort Hood, Texas, and Umar Farouk Abdulmutallab, the Nigerian who attempted to blow up a plane in December by way of bomb taped to his underwear. As a result, the U.S. believes Mr. Awlaki presents an imminent threat to the United States making his targeted killing justified.
While killing combatants on the battlefield has always been considered lawful killing under the international laws of war, the U.S. government's increasing use of "targeted killing" of persons away from the traditional battlefield raises a number of concerns, including the certainty of U.S. intelligence and any geographic, temporal or other limits on the policy. Last year, the U.S. government authorized the targeted killing of Afghan drug lords with links to the Taliban insurgency, another example of extrajudicial executions away from the traditional battlefield.
If the targets are not lawful combatants engaged in international armed conflict, the traditional laws of war may not apply. What law does apply is unclear. And even if international humanitarian law does apply, it may be complemented by international human rights law according to many international tribunals, including the International Court of Justice and the Inter-American Court of Human RIghts. Under international human rights law, an accused is entitled to a fair and public hearing by an indepedent and impartial tribunal in the determination of the accused's rights and any criminal charges. See Universal Declaration of Human Rights (UDHR) at art. 10. The UDHR also would require that a person be presumed innocent until proven guilty according to law at a public trial in which the person is afforded all the guarantees necessary for his defense. See UDHR at art. 11. These rights are confirmed and elaborated upon in the International Covenant on Civil and Political Rights, to which the U.S. is a party.
In addition, with respect to a U.S. citizen in particular, this continued expansion of the targeted killing policy raises serious questions about the application of the U.S. Constitution abroad, which would normally provide a criminal defendant with a presumption of innocence until proven guilty, a right to present mitigating evidence and to test the evidence against him, among other rights, before being sentenced. Furthermore, in Reid v. Covert, 354 U.S. 1 (1957), the U.S.Supreme Court held that U.S. citizens do not lose their constitutional rights when the U.S. government takes action against them abroad. Thus, the legal basis for this decision to target a U.S. citizen is open to question.