The ACLU's Hina Shamsi joins Chris Hayes, Jeremy Scahill and others to discuss the Obama administration's kill program.
Is the targeted killing program moral, legal or efficacious? What's driving the overwhelming domestic support for the president's policy, particularly from liberals who criticized the Bush administration for lesser executive overreach? Is there any way in which such a program could be executed in a manner that comports with the constitutional right to due process?
Some Senators are now suggesting that the government could implement a secret court to approve these targeted strikes. But is that the right idea? Given what we know about how the government and the courts interact on the national security stage, can we expect true judicial oversight and public transparency from such a court? Could we trust such a court to act to approve assassinations only in the most limited circumstances, or would the creation of a death court give a stamp of legitimacy to a program that much of the world and a significant portion of the legal community view as wholly illegitimate when it is housed in the executive branch alone?
Before we even debate the merits of any kind of court like this, the ACLU's Hina Shamsi argues, we must better understand established international law governing war and the targeting of individuals — and examine whether the Obama administration's legal justification for the killings can even be situated within those legal norms.
Shamsi spells out some of the confusion regarding the law of war in the context of targeted killings, describing how the administration appears to be assigning people to its kill list and then later “picking and choosing” the legal standard that applies to their killing:
First of all we should talk about what exactly the legal standards are. And the law is clear. Under international law, self defense answers the question about when one state can violate the sovereignty of another state by using force in their territory. It doesn't answer the question of whether the use of force against a particular person is lawful. Those answers come out of the context of armed conflict, from law that says you can target people if they pose a specific, concrete and imminent threat. And that makes sense. You don't need judicial review when those conditions are met. Or in the context of armed conflict, when someone is directly participating in hostilities. And what's so disturbing about this white paper is that it completely confuses those standards. We seem to be accepting the conclusion that a person is someone who can be targeted, and making the policy conclusion that we want to be able to kill them, and then from that conclusion picking and choosing the different kinds of standards that might apply.
In many cases there appear to be no standards at all, like with the administration's so-called “signature strikes” against people the government cannot even positively identify, but who simply fit a pattern of activity that it assumes comports with some kind of terrorist activity.
“One of the most disturbing aspects of this is that we truly seem to have entered the age of pre-crime,” Jeremy Scahill warns. When imminent means “sometime in the future, possibly,” and the administration considers all military aged males in strike zones to be terrorists, we are in very dangerous territory, he argues.