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Obama's targeted killings: Legal questions

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6 March 2013 14:28

Cynthia Banham is a former diplomatic correspondent for Fairfax and a PhD candidate at the ANU. This is part 2 of her series on counter-terrorism after the 9/11 decade. Part 1 here.

There is a bleak irony in President Obama, who banned the use of torture upon taking office, finding it more palatable to simply kill terrorist suspects rather than detain them.

But what has caused almost as much consternation as Obama's policy of using drone strikes to exterminate suspected al Qaeda operatives is the lack of transparency his Administration has employed in doing this. Especially when one of those suspects was an American citizen — Anwar al-Awlaki, killed by drone strike in Yemen in 2011.

As the New Yorker described it, the concern about al-Awlaki had nothing to do with his guilt or innocence. Rather the disquiet concerns the question of 'at what point he crossed the line and became killable without any judicial proceedings', a question the Obama Administration has refused to answer.

This picture changed slightly last month with the 'leaking' to NBC News of a confidential Justice Department memo. The memo purported to set out the legal basis for when the US Government can order a lethal strike of this kind. Its contents reveal a legal justification just as contested as that which the Bush Administration relied on to torture terrorist suspects.

Basically, the Obama Administration has laid down three conditions for when an American citizen suspected of being a senior al Qaeda (or al Qaeda-affiliated) operative can be killed by drone strike: they must pose an 'imminent threat', their capture must be 'infeasible', and the killing must be 'consistent with applicable law of war principles'.

Lawyers have been quick to point out the weaknesses in such a legal construction. In the first instance, does the law of war apply when targeting al Qaeda in countries with which the US is not at war? And even if it does, who says the law of armed conflict (also known as international humanitarian law) supports the killing rather than capture of enemy fighters any time, anywhere (Ryan Goodman, writing for the European Journal of International Law Blog, 'Talk!', argues the Justice Department memo misunderstands international humanitarian law on this point).

Furthermore, what does 'imminent' mean? And what classifies as 'infeasible'? David Cole in the New York Review of Books pointedly asked: 'has the ease with which drones can kill others without risk to American life effectively changed the determination of feasibility?'.

Of course, it's not only American citizens being killed by drone strikes. According to ProPublica, drone strikes have killed between 2600 and 4700 people in the past decade, four of whom were American citizens. Some of these have been 'signature strikes' in which drone operators fire on people whose identities they do not know, on the basis of suspicious behaviour.

Even so, critics of the Bush Administration's torture policies argue that Obama's targeted killings are not as bad, since torture is illegal under all circumstances, while killing by the state is not (Jane Mayer for instance, makes this argument).

Whatever your position, there are good arguments that Obama's targeted killings policies contravene well-established rule of law traditions. His lack of transparency on such a contentious issue is just as bad as Bush's. It is also, given the pronouncements about openness Obama made on coming to office, far more hypocritical.

Photo by Flickr user Defence Images.

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