Nearly a decade after the Sept. 11 attacks, we still have not settled the question of how to deal with terrorism suspects. Should they be in military or civilian custody? Should they receive trials, and if so what kind? After years of acrimonious debate, President Obama is offering a way to settle this argument once and for all: Why not just kill them?
Last week, U.N. investigator Philip Alston delivered a report on "targeted killings" in which the U.S. government plays a starring role. Under a policy secretly initiated by George W. Bush and expanded by Obama, the CIA and the Joint Special Operations Command track and kill people, including U.S. citizens, based on their alleged ties to al-Qaida or its allies. The killings, typically carried out by missiles fired from drone aircraft, dangerously blur the line between warfare and summary execution.
As Alston noted, targeted killings "are permitted in armed conflict situations when used against combatants ... or civilians who directly engage in combat-like activities." But "they are increasingly being used far from any battle zone" -- in places such as Yemen, where the U.S. fires missiles at "high-value targets" such as the American-born radical cleric Anwar al-Awlaki.
Harold Koh, the State Department's legal adviser, says such attacks are justified by international law and by the Authorization for the Use of Military Force that Congress passed after the Sept. 11 attacks. "The United States is in an armed conflict with al-Qaida, as well as the Taliban and associated forces," Koh says. "Individuals who are part of such an armed group are belligerents and, therefore, lawful targets."
But unlike a conventional war, this "armed conflict" is fought on a "battlefield" that spans the globe by "belligerents" who do not wear uniforms and are not readily identified. Hence Koh's reasonable-sounding law-of-war argument amounts to claiming that the executive branch has the unreviewable authority to kill enemies that it unilaterally identifies anywhere in the world.
The geographic reach of this license to kill exceeds even that of an old-fashioned tyrant accustomed to shouting, "Off with his head!" Imagine how the U.S. would react if a foreign government claimed it had the right to kill people on the streets of New York because it considered them "belligerents."
Given the breathtaking scope of the authority claimed by the president, the reassurances of his underlings ring hollow.