http://http://www.aclu.org/files/assets/2010-4-28-ACLULettertoPresidentObama.pdfApril 28, 2010
President Barack Obama
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500
Dear Mr. President:
On behalf of the ACLU and its 500,000 members, I am writing to express our
profound concern about recent reports indicating that you have authorized a
program that contemplates the killing of suspected terrorists – including U.S.
citizens – located far away from zones of actual armed conflict. If accurately
described, this program violates international law and, at least insofar as it
affects U.S. citizens, it is also unconstitutional.
The U.S. is engaged in non-international armed conflict in Afghanistan and
Iraq and the lawfulness of its actions must be judged in that context. The
program that you have reportedly authorized appears to envision the use of
lethal force not just on the battlefield in Iraq, Afghanistan, or even the
Pakistani border regions, but anywhere in the world, including against
individuals who may not constitute lawful targets. The entire world is not a
war zone, and wartime tactics that may be permitted on the battlefields in
Afghanistan and Iraq cannot be deployed anywhere in the world where a
terrorism suspect happens to be located. Your administration has eschewed
the rhetoric of the “Global War on Terror.” You should now disavow the
sweeping legal theory that underlies that slogan.
Even in an armed conflict zone, individuals may be targeted only if they take
a direct part in hostilities, for such time as they do so, or if they have taken up
a continuous combat function. Propagandists, financiers, and other noncombat
“supporters” of hostile groups cannot lawfully be targeted with lethal
force. Applicable international humanitarian law also prohibits targeted
killing except in order to prevent an individual’s future participation in
hostilities; fighters cannot be targeted solely as retribution for past actions.
Furthermore, basic law-of-armed-conflict principles require that in such
operations, civilians who are not taking direct part in hostilities must not be
targeted, precautions must always be taken to spare the civilian population,
anticipated civilian casualties must never be disproportionate to the expected
concrete military advantage, and strikes must only occur when required by
military necessity.
Outside armed conflict zones, the use of lethal force by the United States is strictly
limited by international law and, at least in some circumstances, the Constitution. These
laws permit lethal force to be used only as a last resort, and only to prevent imminent
attacks that are likely to cause death or serious physical injury. According to news
reports, the program you have authorized is based on “kill lists” to which names are
added, sometimes for months at a time, after a secret internal process. Such a program of
long-premeditated and bureaucratized killing is plainly not limited to targeting genuinely
imminent threats. Any such program is far more sweeping than the law allows and raises
grave constitutional and human rights concerns.
In a series of cases involving prisoners currently held by the U.S. at Guantanamo Bay,
your administration has taken the position that the 2001 Authorization for Use of Military
Force permits the detention of individuals captured anywhere in the world, even
individuals who have no connection to the battlefield. For example, your administration
has advanced that argument in the case of one of our clients – Mohammedou Salahi –
who was detained in Mauritania. We do not think the AUMF can be read so broadly. In
Hamdi v. Rumsfeld, the Supreme Court interpreted the AUMF consistently with
international law, permitting the detention of a U.S. citizen captured in Afghanistan only
because the detention of battlefield combatants was “so fundamental and accepted an
incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has
authorized the President to use.” 542 U.S. 507, 518 (2004). But even if the AUMF could
be read to authorize the detention of suspected terrorists apprehended far from any zone
of actual combat, it is a far more radical thing to propose that the AUMF authorizes the
extrajudicial execution of those people. Outside of armed conflict zones, human rights
law and the Constitution prescribe strict limits on the use of lethal force, limits that are
narrower than those applicable in armed conflicts, and narrower than the standards
governing detention. Targeted killing of suspects away from the battlefield is not a
“fundamental and accepted . . . incident to war.” Based on the available information,
neither does your targeted killing program appear to be an exercise of “necessary and
appropriate force” used only as a last resort to prevent imminent threats. The AUMF
may be broad, but the authority it granted was not limitless, and it cannot now be
construed to have silently overridden the limits prescribed by international law.
The program you have reportedly endorsed is not simply illegal but also unwise, because
how our country responds to the threat of terrorism will in large measure determine the
rules that govern every nation’s conduct in similar contexts. If the United States claims
the authority to use lethal force against suspected enemies of the U.S. anywhere in the
world – using unmanned drones or other means – then other countries will regard that
conduct as justified. The prospect of foreign governments hunting and killing their
enemies within our borders or those of our allies is abhorrent.
The program you have endorsed also risks the deaths of innocent people. Over the last
eight years, we have seen the government over and over again detain men as “terrorists,”
only to discover later that the evidence was weak, wrong, or non-existent. Of the many
hundreds of individuals previously detained at Guantánamo, the vast majority have been
released or are awaiting release. Furthermore, the government has failed to prove the
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lawfulness of imprisoning individual Guantánamo detainees in 34 of the 48 cases that
have been reviewed by the federal courts thus far, even though the government had years
to gather and analyze evidence for those cases and had itself determined that those
prisoners were detainable. This experience should lead you to reject out of hand a
program that would invest the CIA or the U.S. military with the unchecked authority to
impose an extrajudicial death sentence on U.S. citizens and others found far from any
actual battlefield.
Sincerely,
Anthony D. Romero
Executive Director
AMERICAN CIVIL
LIBERTIES UNION
NATIONAL OFFICE
125 BROAD STREET, 18TH FL.
NEW YORK, NY 1004-2400
T/212.549.2500
WWW.ACLU.ORGOFFICERS AND DIRECTORS
SUSAN N. HERMAN
PRESIDENT
ANTHONY D. ROMERO
EXECUTIVE DIRECTOR
ROBERT B. REMAR
TREASURER
