The Obama administration’s top Pentagon lawyer on Wednesday said that courts have no business questioning executive branch decisions about whom to target for extra-judicial execution in the war on terror, even if that target is an American citizen.
“Belligerents who also happen to be U.S. citizens do not enjoy immunity where non-citizen belligerents are valid military objectives,” said Jeh C. Johnson, the Defense Department general counsel, in a speech at Yale Law School.
While the Obama administration’s policy here is not new – they’ve been conducting a drone war and assassinating U.S. citizens and non-citizens without ever providing the public evidence of those targets’ guilt – it was rare for an administration official to so publicly declare it like Johnson did.
Johnson would not speak to specific cases, but he did bring up the administration’s killing of American citizen Anwar al-Awlaki in Yemen last year. He mentioned that a district judge’s decision to dismiss a case brought by Awlaki’s father to prevent his son’s due-process-free assassination was the right decision because targeting decisions are none of the court’s business.
If the administration concludes someone is a part of al-Qaeda or an “associated force,” Johnson explained, they can be executed or detained without trial or judicial review. Johnson argued the authority for this comes from the authorization for the use of military force against the perpetrators of 9/11, passed by Congress one week after the attacks.
Johnson said nothing in that statute limited the war against al-Qaeda and its allies to the so-called “hot” battlefield zone of Afghanistan. So, the Obama administration has claimed the authority to kill or capture without charge or trial any individual it alone deems a terrorist, anywhere in the world, without any judicial review.