Obama’s Power to Identify Combatants Is the Power of Life and Death

e790Mary Ellen OConnell Obamas Power to Identify Combatants Is the Power of Life and Death

Writing in The New York Times today,
University of Notre Dame law professor Mary Ellen O’Connell

notes her cameo appearance in the Justice Department white paper
summarizing the legal rationale for killing Americans whom
President Obama identifies as enemy combatants:
I was struck to find my name on Page 4 of the white paper, which
summarized my argument that “the conflict between the United States
and Al Qaeda cannot lawfully extend to nations
outside Afghanistan in which the level of hostilities is
less intense or prolonged than in Afghanistan itself.”
The lawyers dismissed my view, arguing that “there is little
judicial or other authoritative precedent” on the issue, since the
nation is fighting a “transnational, non-state actor” where the
“principal theater of operations” is not in a country in conflict
with America.
These are more than legal quibbles.
Indeed. The question of what counts as a combat zone is closely
tied to the question of who counts as a combatant and is therefore
eligible for death by drone. Within the United States, the Obama
administration treats terrorism as a crime, meaning that suspected
terrorists have the same rights as other criminal defendants,
including the right not to be killed without due process of law.
But according to the Justice Department, if the suspected terrorist
happens to be located in another country—in Pakistan, Yemen, or
Somalia, say—he is subject to summary execution. Since the
Authorization for the Use of Military Force that Congress approved
after 9/11 “does not set forth an express geographic limitation,”
the white paper suggests, the president has the authority to kill
people he believes to be members of Al Qaeda or allied groups
wherever they may be found. O’Connell’s analysis,
which she developed in response to the “Global War on Terror”
concept championed by George W. Bush, goes to the heart of such
claims:
In an armed conflict, in the zone of hostilities, combatants may
be targeted without warning or detained without trial. Such
treatment is unlawful against persons engaging in violence in the
absence of armed conflict. Armed conflict occurs when
organized armed groups exchange protracted, intense, armed
hostilities. The groups must be associated with territory. In
addition to the concept of armed conflict, the concept of conflict
zone is important. Killing combatants or detaining them without
trial until the end of hostilities is consistent with the
principles of necessity and proportionality, as well as general
human rights, when related to a zone of actual armed hostilities.
Outside such a zone, however, authorities must attempt to arrest a
suspect and only target to kill those who pose an immediate lethal
threat and refuse to surrender. Those arrested outside a conflict
zone should receive a speedy trial on the basis of the evidence
that has led to the arrest. There must be an evidentiary basis to
charge a person with a crime—much more evidence than supports the
right to detain an enemy combatant captured on an actual
battlefield in a zone of combat.
By contast, Sen. Lindsey Graham (R-S.C.)
thinks combatant status is in the eye of the beholder—and that
beholder is the president, no one else. “The process of being
targeted I think is legal,” Graham says, “and should reside in the
commander in chief to determine who an enemy combatant is and what
kind of force to use.” Since the power to determine who is a
combatant is the power of life and death, Graham is saying he
trusts the president with an unlimited license to kill. If Obama
decided tomorrow that Graham is a combatant and marked him for
death, that would be A-OK in Graham’s book.Back in 2007, when Barack Obama was running for president,
The Boston Globe asked
him, “Does the Constitution permit a president to detain US
citizens without charges as unlawful enemy combatants?” Obama’s
response:
No. I reject the Bush Administration’s claim that the President
has plenary authority under the Constitution to detain U.S.
citizens without charges as unlawful enemy combatants.
Evidently, however, Obama does think the president has plenary
authority to kill U.S. citizens, as long as he does not
detain them first.O’Connell’s 2010 congressional testimony on “Lawful Use of
Combat Drones” is here.

See original: 

Obama’s Power to Identify Combatants Is the Power of Life and Death


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