Obama praised for releasing kill list memo but rights groups call for more
ACLU says the decision to release the legal rationale is a 'step in the right direction' after repeated demands for transparency
7 February 2013
After years of litigation and repeated demands for transparency, human rights attorneys were offered signs of progress Wednesday evening, as the Obama administration ordered the Justice Department to release a classified memo detailing its legal justification for the targeted killing of US citizens abroad to two congressional intelligence committees.
Though legal advocates praised the administration's decision, they were quick to add that much more must be done to insure transparency and accountability with respect to the president's controversial targeted killing program, including making the full legal justification for the targeted killing, both of Americans and foreign nationals, available to the public.
"While this is a small step in the right direction, democratic transparency requires President Obama to make the full memo available to the public. The United States is not a nation of secret laws, and a memo authorizing the killing of American citizens is too important to keep from the American people," the American Civil Liberties Union's senior legislative counsel Christopher Anders said in a statement released Wednesday evening.
"Everyone -- not just select members of Congress -- has a right to know when the government believes it can kill American citizens. This concession has taken far too long and falls far short of President Obama's commitment to transparency he pledged to abide by since becoming president."
The decision to release the memo -- which is believed to outline the administration's legal justification for killing Anwar al-Awlaki, an American citizen, in 2011 -- came amid mounting pressure on the administration from US lawmakers to clarify its targeted killing policies and less than 24 hours before a confirmation hearing on the appointment of White House counter-terrorism adviser John Brennan to director of the Central Intelligence Agency. Until Wednesday the administration had refused to acknowledge the existence of the documents.
"The limited release to the intelligence committees -- following mounting pressure both outside and inside the government -- is a tiny step forward, and hopefully indicates the administration is now going to be more open with the American public and the international community," Sarah Knuckey, a human rights lawyer at New York University School of Law, told the Guardian. "But it is well overdue and utterly insufficient on its own to satisfy basic principles of transparency and accountability."
According to numerous media reports, Brennan has played an instrumental role in directing the Obama administration's targeted killing program, which has led to the deaths of three American citizens since 2011. The dead include Abdulrahman al-Awlaki, Anwar's 16-year-old son, who was killed in separate strike weeks after his father's death. No evidence has been presented connecting the teenager to terrorist activity and the administration has not provided an explanation for his death. In addition to the dead Americans, targeted US strikes are believed to have killed thousands of individuals in multiple countries where the US is not formally at war.
Members of the House and Senate intelligence committees expected to receive the legal memo Thursday morning, Senator Dianne Feinstein, chairman of the Senate committee, told the Associated Press.
On Monday, a bipartisan group made up of 11 senators sent a letter to the White House calling for clarification on the administration's purported authority to lethally target American citizens believed to be working with al-Qaida abroad. The lawmakers indicated that they might hold up Brennan's appointment to head of the spy agency if the administration did not co-operate. The following day NBC news published a Justice Department white paper summarizing the Obama administration's legal justification for targeting American citizens.
In a set of pre-hearing questions and answers released Wednesday, Brennan was pressed on a statement he made in 2011 in which he claimed: "The US government has not found credible evidence of collateral deaths resulting from US counter-terrorism operations outside of Afghanistan or Iraq."
Responding to a questions this week, Brennan acknowledged that "there have been times when a strike was not conducted in order to avoid the death and injury of innocent civilians, and the standard that we hold ourselves to when conducting these kinds of operations is higher than that required by international law on a battlefield."
Brennan added: "As has been acknowledged by the president and myself, there have been instances when, regrettably and despite our best efforts, civilians have been killed. It is exceedingly rare, and much, much rarer than many allege."
With targets frequently killed in remote locations and the Obama administration unwilling to answer questions regarding its targeted killing program, details regarding US strikes have been difficult to verify.
The Bureau of Investigative Journalism estimates CIA strikes in Pakistan between 2004 and 2013 have resulted in as many as 3,468 deaths, including up to 893 civilians and 176 children. In Somalia, the BIJ estimates up to 57 civilians have been killed in covert US strikes. In Yemen, the bureau estimates as many as many as 178 civilians have been killed. In one December 2009 case, US missiles carrying cluster bombs struck a rural community in the al Majalah region of southwestern Yemen, reportedly killing 41 people, including at least 21 children.
"The full legal rationales for the killings must be made public. And not just the rationales for the small handful of strikes that have killed American citizens," Knuckey said. "Thousands of killings of non-Americans have taken place. When is the US going to explain those?"
"If the full memos are anything like the DOJ white paper leaked earlier this week, they may raise more questions than they answer," she added. "The white paper only vaguely defines core concepts. It only addresses strikes against US citizens who are 'senior operational leaders' -- a tiny percentage of the strikes the US actually carries out."
Knuckey pushed back on the sufficiency of Brennan's answer that civilian causalities are "far rarer" than critics claim. "This is the same non-response the administration has been giving for years. Yet numerous specific cases of civilian casualties have been investigated by journalists, NGOs, lawyers and others. Family members of the deceased and injured individuals in Pakistan and Yemen have come forward with very specific allegations. Detailed prima facie evidence of civilian casualties have been made public, repeatedly, and these need to be answered with more than general platitudes."
Raha Wala, advocacy counsel in the law and security program at Human Rights First, told the Guardian it is difficult to evaluate Brennan's claim regarding civilian casualties in US counter-terrorism operations because of a lack of clarity in the administration's definition of a civilian.
"It's hard to know because, quite frankly, we don't know how the administration defines civilian," Wala said. Media reports have indicated the administration counts males of military age killed in US strikes as militants unless evidence is presented to prove they were not. "I don't think that we have a reliable and solid basis for understanding what the administration itself believes are civilians, let alone an assessment of their civilian casualties count. So that's something we should look skeptically on," Wala said.
Wala said it has been "virtually impossible" to ascertain facts about the administration's targeted killing program. "The administration at this point in time, especially when it comes to the CIA, basically doesn't even acknowledge that it's involved in drone strikes, let alone have an honest conversation about policy."
A tendency to focus on drone technology and the targeting of Americans, Wala said, sometimes clouds the scope of the administration's targeted killing program. "A drone is a weapons platform. It's a way of distributing a missile," he said. "Drones do present special problems but it's not about drones and it's not about American citizens. Under international law there aren't distinctions between citizen and non-citizen when it comes to the laws of war."
"By and large we're talking three individuals, if the public record is accurate, who are citizens who've been caught up in the drone program and lost their lives, whereas there are thousands more who ought to be looked at."