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Is the CIA Assassination Order of a US Citizen Legal?

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US officials have confirmed a Yemen-based Muslim cleric has become the first US citizen added to a CIA list of targets for capture or killing. Anwar al-Awlaki is a US-born cleric accused of having ties to the failed Christmas Day airline bombing and the shooting at Fort Hood. Many legal experts have questioned the legality of the assassination order under US and international law. We speak with Philip Alston, the United Nations Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions. [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

JUAN GONZALEZ: US officials have confirmed a Yemen-based Muslim cleric has become the first US citizen added to a CIA list of targets for capture or killing. Anwar al-Awlaki is a US-born cleric accused of having ties to the failed Christmas Day airline bombing and the shooting at Fort Hood. Officials said it is extremely rare, if not unprecedented, for a US citizen to be approved for assassination.

Earlier this year, the Director of National Intelligence, Dennis Blair, told the House Intelligence Committee US forces can assassinate citizens believed to be involved in a terrorist activity against the United States. Blair said, quote, “Being a US citizen will not spare an American from getting assassinated by military or intelligence operatives overseas if the individual is working with terrorists and planning to attack fellow Americans.” He added, “We don’t target people for free speech; we target them for taking action that threatens Americans.”

AMY GOODMAN: Many legal experts have questioned the legality of the assassination order under US and international law.

We’re joined here in New York by Philip Alston, the UN Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions. Philip Alston is also a professor of law at New York University and co-chair of the school’s Center for Human Rights and Global Justice.

Welcome to Democracy Now!, Professor Alston. What about this policy targeting al-Awlaki?

PHILIP ALSTON: Well, there’s a lot we don’t know about this particular case. We don’t know exactly what this man is accused of, which would make a very big difference in terms of working out what his role is, whether he can be considered to be actually engaged in some sort of armed conflict with the United States, whether he’s taken an active part in those hostilities.

The US government has merely indicated that, first, he is working with a group that is said to be affiliated with al-Qaeda. Now that raises fairly big problems already, but I’ll come back to that. Secondly, is he actually taking some sort of active part in hostilities? Is he just a propaganda man, or is he in fact doing the planning and really someone who is in the chain of command, as it were? If the latter, if he’s in the chain of command, then it becomes more feasible. If we then get to the situation that we agree that we’re in an armed conflict situation, that then takes us back, unfortunately, to the whole big question of what sort of conflict, what sort of war, is the United States engaged in, which would then justify targeting this individual, leaving aside his nationality, at least for a moment.

The administration, as we know, has come out in the last week or so with a new rationale. We have now dropped the global war on terror. That’s no longer being fought. Instead, the rationale is that this is the United States acting in self-defense post-9/11. So it’s invoking an international law doctrine which is designed to provide a single exception to the prohibition on the use of force. Post-World War II, the rule was a country cannot make war on another country. The exception is if it’s in self-defense. Now that’s usually defined as some sort of imminent attack going on, that you then are able to respond to. Clearly, that’s not really happening here, and it’s rather odd to invoke it for the first time some ten years after, nine years after 9/11.

But even then, if we accept that the United States is involved in some sort of armed conflict, the question is, can we attack Yemen? Well, the first issue, is there a request by the government of Yemen? The US seems to imply that they will not object, and that would get around that particular dilemma. But then you come to this particular individual. The big issue there is, is there an armed conflict going on in Yemen in which the United States is engaged? If there is, then if he’s taking part in hostilities, he would be a legitimate target. But if there’s not an armed conflict — and most observers would question whether there is a sort of ongoing armed conflict — then one would need to deal with him through other means. It’s not to say that the guy should be let to, you know, do what he’s doing, etc. We need to take every step that can be taken, but short of a targeted assassination, which is a really dramatic step.

JUAN GONZALEZ: But if the reports are accurate that have come out in the last few days, the President has said that he should be killed wherever he is found at any time in any situation, which would actually preclude him just being involved in an imminent attack situation on the United States.

PHILIP ALSTON: Right. I think what worries me most is that if you take it in the way that you’ve put it, you then get the United States government coming up with a list of people who can be killed anywhere, anytime, simply because that determination has been made. Now, that is very questionable, when there’s no evidence on the table. The United States has made a number of assertions, but it hasn’t tried try to spell those out.

But more importantly, and this gets us back in some ways to the Baghdad videotape that you showed earlier, the question is, should the United States go easily and readily into a general policy of assassinating people across the globe wherever they may be? And the al-Awlaki case is pretty significant in terms of breaking through some of the final barriers.

The issue that concerns many Americans, of course, is, hey, this guy is different. He’s an American citizen. You can shoot others, but you can’t shoot an American. We’ve got due process rights, etc. Well, that, in a way, highlights the whole problematic nature of targeted assassinations, because the fact that he’s an American actually makes no difference in terms of the international law that’s being invoked. No matter what nationality, you have certain due process rights, under international law, as well as domestic law. So if Americans have a great concern that an American should not be targeted without some sort of due process, why is it that that practice, that policy, can be applied to virtually anyone else?

AMY GOODMAN: This US-born Muslim cleric Anwar al-Awlaki recently issued an audio message to American Muslims. This is a small part of what he had to say.

    ANWAR AL-AWLAKI: I, for one, was born in the US. I lived in the US for twenty-one years. America was my home. I was a preacher of Islam involved in nonviolent Islamic activism. However, with the American invasion of Iraq and continued US aggression against Muslims, I could not reconcile between living in the US and being a Muslim, and I eventually came to the conclusion that jihad against America is binding upon myself, just as it is binding on every other able Muslim. I invite you to read the book of Allah, the Koran. You do not have to take anyone’s word for it. Decide for yourself whether it is the truth or not.

    To the Muslims in America, I have this to say. How can your conscience allow you to live in peaceful coexistence with the nation that is responsible for the tyranny and crimes committed against your own brothers and sisters? How can you have your loyalty to a government that is leading the war against Islam and Muslims?

AMY GOODMAN: That’s the US-born Muslim cleric Anwar al-Awlaki. I’d like you to respond to that and then, very briefly, the WikiLeaks video footage that you saw and the implications of that, but this —-

PHILIP ALSTON: Well, clearly, that’s abhorrent to be calling for a jihad against the United States or against any country in that way. There’s no question of that. But there are thousands, maybe tens of thousands, of people who have made jihad calls against the United States. Where do we draw the line? There surely has to be some clear legal basis for singling this guy out and then for engaging in a policy which, as we said before, is going to lead to the United States, perhaps the CIA, which is not actually covered by combatant status and which would then be liable for murder charges if a CIA operative is arrested in Yemen and charges were pressed -— it’s a very dangerous policy, despite the abhorrent nature of the claim made by the cleric.

AMY GOODMAN: And the WikiLeaks footage, the US military footage from the Apache helicopter that also captures the audio track of the soldiers laughing and talking about targeting these Iraqis below, that happen to include two Iraqi Reuters employees, would you call that assassination?

PHILIP ALSTON: Well, it’s horrendous footage, so forgive me for sort of extracting myself from the situation and being a little bit more analytical, as it were.

The question is, is the United States government actually going to provide more details on the circumstances in which that engagement took place? The US government has said, “Ah, but there was a combat situation going on.” If that was true, then you give more leeway. But the US has not revealed other footage which would show that this was really in the heat of the moment. So if it wasn’t in the heat of the moment, then you’ve got a situation where the helicopter comes in, sees a group of individuals, doesn’t actually clarify whether they’re carrying arms or behaving in any other suspicious way, and simply takes them out. That’s very problematic.

It then raises the question of, what are the rules of engagement? Are they tight enough? Is the military actually following up with effective post-mortems in these situations? And, of course, finally, there are many allegations against the US military, we never really hear anything about the proceedings that actually take place. All we hear is a few lines at the end saying, “No, we reviewed this, and we decided not to press any charges.” It’s time that there was more transparency in relation to incidents where these sort of things happen, and there are serious concerns about the legality.

AMY GOODMAN: Should the UN investigate?

PHILIP ALSTON: The UN would not be in a position to investigate without the full cooperation of the United States. And the UN has been calling on the US for a very long time to be much more transparent on these issues.

AMY GOODMAN: Philip Alston, we want to thank you for being with us, UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions and a professor at New York University.

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