There have been a couple of interesting speeches given by members of the government's legal establishment recently. The first, given on 22 February, was from the Pentagon's General Counsel, Mr. Jeh Johnson. He delivered his prepared speech to Yale Law school students. In it, he mentioned that, "My comments are general in nature about the U.S. military’s legal authority, and I do not comment on any operation in particular."
Johnson asks the question:
Should the legal assessment of targeting a single identifiable military objective be any different in 2012 than it was in 1943, when the U.S. Navy targeted and shot down over the Pacific the aircraft flying Admiral Yamamoto, the commander of the Japanese navy during World War Two, with the specific intent of killing him?As an aside, I previously blogged about the Supreme Court Justice who, as a younger man, broke the code that led to the targeted killing of Admiral Yamamoto. While the justice did conclude it was legal, he admitted to being deeply troubled by it. The legality of this particular killing seems clear, since Yamamoto was a uniformed military member of a country that the American Congress had declared war against. Yamamoto was also not an American citizen, so the United States Constitution really doesn't weigh into that example from World War II. I think perhaps a more useful example Johnson could have used from that time period would have been the violation of the civil liberties of non-uniformed Japanese Americans who were suspected of treason, who did not present an imminent threat (as in the imminent kind of imminent threat), and who were not charged or tried where evidence could be presented. Unfortunately the Pentagon lawyer did not use that example in his speech.
Johnson, however, did take issue with the word "assassination" stating:
On occasion, I read or hear a commentator loosely refer to lethal force against a valid military objective with the pejorative term “assassination.” Like any American shaped by national events in 1963 and 1968, the term is to me one of the most repugnant in our vocabulary, and it should be rejected in this context. Under well-settled legal principles, lethal force against a valid military objective, in an armed conflict, is consistent with the law of war and does not, by definition, constitute an “assassination.”I disagree with Johnson's diction. Regardless, he continues to discuss the role of American citizenship in the use of lethal force, stating:
Fifth: as I stated at the public meeting of the ABA Standing Committee on Law and National Security, belligerents who also happen to be U.S. citizens do not enjoy immunity where non-citizen belligerents are valid military objectives. Reiterating principles from Ex Parte Quirin in 1942, the Supreme Court in 2004, in Hamdi v. Rumsfeld, stated that “[a] citizen, no less than an alien, can be ‘part of or supporting forces hostile to the United States or coalition partners’ and ‘engaged in an armed conflict against the United States.’”He goes on to say that, "I agree with Judge Bates of the federal district court in Washington, who ruled in 2010 that the judicial branch of government is simply not equipped to become involved in targeting decisions." Johnson footnotes the case brought by Anwar Al-Alawki's father to attempt to prevent the government from assassinating his American son.
What I find the most interesting, far more so than Johnson's quasi-defense of assassinating American citizens, is the fact that he doesn't come out and explicitly say that the government has in fact engaged in such action. After all, most Americans and the media take the view that the government has essentially admitted to doing exactly that, without explicitly owning up to the action.
Yesterday, Attorney General Eric Holder gave a speech to the students of the Northwestern law school, and according to the Associated Press (AP), gave a legal defense for the Al-Alawki assassination. According to the AP, "Holder's comments broke the administration's silence on the legal justifications for its decision to kill American-born al-Qaida operative Anwar al-Awlaki five months ago in Yemen." The article then follows that comment with, "... but he never explicitly acknowledged the administration responded by targeting the cleric for death."
The article mentions that, "The Obama administration has refused to release the Justice Department legal opinion on al-Awlaki's killing under the Freedom of Information Act and is in court opposing efforts to have it made public."
I have to wonder what silence the AP thinks is being broken here? I see nothing new. Most Americans believe their government has all but officially admitted that it has engaged in the assassination of at least one American citizen. The President gave a speech, widely viewed as a victory dance, when an American was assassinated by a drone. The Secretary of Defense admitted on 60 Minutes to assassinating an American citizen without due process. Now, top government lawyers are hitting up law schools and attempting to defend the assassination of Americans. Such public discussion only further bolsters the view that the government has time and again unofficially admitted to such action.
Ironically, I don't think any legal hearts or minds will be swayed that such action is legal, if the government still will not officially confirm or deny what most Americans and media overwhelmingly believe to be fact. A legal defense that seems to take a page from OJ Simpson's book, If I Did It, doesn't seem destined to be convincing. Perhaps the Yale and Northwestern law students felt differently.
I have previously blogged about my legal understanding of the issue here.