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Why we must condemn ‘Terror Tuesday’

While you are reading this, President Obama may be mulling over the latest ‘Terror Tuesday’ Kill List with more than a hundred military and national security personnel.  

The New York Times had reported that Obama’s top political advisor, David Axelrod, was present at the meetings, suggesting that not just lives, but high political stakes were involved in the teleconferenced meetings organized by the Pentagon at which the President had the final word on who would die by drone in Yemen and Somalia, two countries with which we are not officially at war. 

A separate selection process for those to die by drone in Pakistan (where we are also not officially at war) is carried out by the CIA, with the President again being the ultimate decider, according to three and a half page New York Times report, “Secret ‘Kill List’ Proves a Test of President’s Principles and Will.”

Axelrod later denied that he took part in the teleconferenced meetings. But the White House disputed little else in the Times report, with press spokesman Jay Carney declaring that President Obama was prepared “to take whatever steps are necessary to protect the American people from harm.” The Administration clearly believes that the image of Obama as a tough hands-on commander-in-chief relentlessly hunting down America’s enemies will play well in an election year.

And so it appears to be doing.   

True, there are voices of dissent. A New York Times editorial headlined “Too Much Power for the President” claimed that the power to kill at will anywhere in the world was “too great, and too easily abused” and urged the Administration to release the legal briefs on which it was based. Some bloggers, Glenn Greenwald prominent among them, and a few organizations such as the ACLU have strongly condemned the ‘targeted killing’ program. 

But there has been remarkably little in the way of a public or political outcry about a secretive executive branch policy that is breathtaking in both its scope and defiance of domestic and international law. 

So what exactly does the nation seem prepared to accept? To date, it seems at ease with the notion of a “Terror Tuesday” (its chosen name) team considering dossiers of “bad guys.” No matter that some of the information in those dossiers may come from people with a personal grudge. It turns out that names and identities are not even requisite factors when determining a person’s fate. “Terrorist Attack Disruption Strikes” (TADS) can be approved on people whose names are unknown. 

Ever wonder why the Administration has been so adamant that the drone strikes are not killing civilians?   Labeling nameless young men as “militants” takes care of that problem. According to the Times report, any “militant” can be legitimately targeted for death and that label can be fastened on any nameless young man who appears to be “of military age” and happens to be in or near a “strike zone.”  

If such young men were indeed innocent civilians, they would not have been anywhere near a drone strike, so the reasoning goes. And if some compounds were not “suspicious looking” they might not be subject to “signature strikes,” which are also endorsed by the Kill List team.

What about the February 2012 report by the UK-based Bureau of Investigative Journalism that at least 50 civilians in Pakistan had been deliberately targeted in follow-up strikes when they rushed to help those hit by a drone-fired missile? And the deliberate targeting of at least 20 more in drone strikes on funerals? Were these people all seen as “legitimate” targets by the Terror Tuesday team? The Times report does not venture into this territory.

Some death decrees are reportedly “no brainers.” We learn from the Times article that the decision to kill the American citizen Anwar al-Awlaki was an “easy one” for President Obama, even though al-Awlaki had never been formally charged with a crime. Did the President have any qualms about the fact that Samir Khan, an American who was not on the kill list, was wiped out with al-Awlaki? Was it equally “easy” to condemn to death Awlaki’s 16-year-old son, who was obliterated by a drone in Yemen two weeks later?

It’s hard to imagine how vaporizing a 16-year-old American not known to be engaged in any terrorist activity conforms to international law, our own Constitution (where the Fifth Amendment stubbornly insists that “no person shall be…deprived of life, liberty or property, without due process of law”) or even matters to national security. 

Under international human rights law, the only way such lethal attacks outside internationally recognized war zones can be justified is if they are undertaken in actual self-defense or when strictly necessary to prevent imminent harm to life and when an arrest cannot be pursued. Furthermore, the UN Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions require a prompt investigation of “all suspected cases of extra-legal, arbitrary and summary executions.”

Such an investigation will never happen of course, as the US maintains these executions are legal. Given the acquiescence of the courts and Congress, it is difficult to see how we can get beyond the “just trust us” stance of the Administration to find out what kind of evidence it had to condemn individuals to death. The Administration is also refusing to divulge how it is legally buttressing its death by drone policy, beyond the formulaic phrases issued by key Administration officials. 

In the words of CIA veteran John Brennan, now Obama’s senior counterterrorism advisor who guides him through the “kill” playlist, the drone strikes “remain consistent with our laws and values.” This mantra has taken up by Attorney General William Holder, who dealt with the annoyance of the Fifth Amendment by rising above his law school training and claiming that “due process of law” does not mandate a “judicial process” – what the executive branch decides is good enough.

Three years ago, the Obama Administration declared the “war on terror” over and stated that it preferred using the term “Overseas Contingency Operation.” Whatever it is called, the Administration’s pursuit of perceived enemies on an ever-expanding global battlefield has profound implications not just for the other countries of the world and the “blowback” it is bound to bring us, but for the United States as a constitutional democracy. Our future “Terror Tuesday” postings will focus on these implications.

In the meantime, we hope you join us in condemning the Administration’s Kill List policy. You can sign this petition demanding that the government make public its secret legal justification for targeting Americans for death. And you can express your outrage at the White House comment line at 202 456 111 or by emailing the President here.

© 2021 ACLU of Massachusetts.