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Rep. Rogers defends extrajudicial killing of Americans

Rep. Mike Rogers
Rep. Mike Rogers
Photo by Chip Somodevilla/Getty Images

House Intelligence Committee Chairman Mike Rogers (R-Mi) has repeatedly defended the Obama administration’s use of drone strikes, and concluded that Congress has plenty of oversight for the lethal program.

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“Monthly I have my committee go to the CIA to review them (drone strikes). I, as chairman, review every single air strike we use in the war on terror, both on the civilian and the military side when it comes to terrorist strikes,” Rogers told CBS’s Face the Nation. “As chairman, even before they conducted that first air strike that took [Anwar] al-Awlaki… remember this was the guy who was trying to kill a whole bunch of U.S. citizens over Detroit on Christmas Day. This guy’s a bad guy. Our options were limited, this was a tool that we could use to stop further terrorist attacks against American citizens. I supported it then,” he said. “If you join forces with the enemy, we’ve had a longstanding tradition in this country that that in and of itself you lose your constitutional protections.”

With violence in the Middle East exploding and discussions about adding new members to the kill list, like Islamic State of Iraq/Syria (ISIS) terrorist organization leader Abu Bakr al-Baghdadi, Congressman Rogers penned an Op/Ed story for USA Today (Story here).

While the Congressman’s story presents a “law and order” argument for the new “war on terror,” he dismisses the most important aspect of America’s constitution—the rule of law.

The Obama Administration and Republican Mike Rogers claim one man, Anwar al-Awlaki, was associated with planning three attacks that landed him on the “kill list:”

Rogers highlights Anwar al-Awlaki’s past associations with the November 2009 Fort Hood shooting, the December 2009 attempted "underwear" bombing of Northwest Airlines Flight 253 and the 2010 Times Square bomb that nearly killed hundreds as the premise for using lethal force against an American citizen.

While there were 20 emails between the al-Awlaki and recently convicted Fort Hood shooter Major Nidal Hasan, the military concluded that the material discussed was consistent with research the Major was working on. Also, the Obama administration classified the Fort Hood shooting as workplace violence, removing any terrorist connotations. As for the other two bungled terror threats, experts suggest the attempts were amateurish thus making al-Awlaki an unsuccessful terror mastermind.

However, the Intel Chairman claims if the president did not authorized an American drone strike operation in Yemen three years ago, the probability that more dead Americans would have greatly increased. It must be kept in mind that al-Awlaki was a U.S. citizen who swore his allegiance to Osama bin Laden and al-Qaeda after 9/11. Even though al-Awlaki claimed allegiance to bin-Laden, the U.S. government failed to bring charges against the American. His family worked tirelessly, but unsuccessfully, for 18 months to get al-Awlaki off the kill list and even encouraged him to return to America to fight the "kill list" justification of the U.S. government.

The recent release of a Department of Justice memorandum on the legality of the operation has sparked renewed debate on this subject. First, the 41-page, heavily redacted drone memo document relied on generally vague language that lacked convincing judicial precedent to lawfully kill an American citizen. What remains extraordinary is the death penalty was carried-out far from any American battlefield (The U.S. isn’t at war with Yemen).

The United States is still subject to the U.S. rules of engagement, the Geneva Conventions, and the International Law of War Convention. American soldiers do not just shoot and ask questions later. Many American soldiers put themselves at great danger to prevent unnecessary civilian casualties and collateral damage and resent Congressman Rogers’ interpretation of the rules of engagement.

“Throughout its history, America has used force against anyone who waged war against it, even in the rare example when a U.S. citizen wages war against us. For example, Abraham Lincoln showed that American citizens who took up arms against the Union enjoyed no special immunity from the use of military force,” Rogers wrote. That statement is partly true. America was itself involved in a civil war so the entire country was a designated battlefield. Nevertheless, the “war on terror” has no boundaries but a stateless adversary doesn’t necessarily mean there are no rules, according to legal briefs.

Rogers’ legal reasoning behind drone strikes that kills Americans, is straightforward: “Nations have the right to use force against legitimate enemy targets. In any war, when American soldiers are being shot at, whether it is by Germans in World War II, al-Qaeda terrorists, or Americans fighting with them, our soldiers do not stop, ask for passports, appoint a lawyer for their assailants, and hold a trial — even if one of the enemies is an American citizen who has taken up arms with the enemy. They simply return fire. Our soldiers also need not wait until an attack — they can open fire as soon as they spot the enemy. That's because there is no such thing as due process on the battlefield. To act otherwise would be to risk American lives.”

The ACLU disagrees. The ACLU as well as other military critics say the government oversteps the legal boundaries of the Constitution and the International law we helped craft. Until the drone memo was released all decisions on targeted killings where made in secret without going before any court. The ACLU states that America is a nation of laws and courts provide a degree of separation from passion and retribution to determine how the government will punish citizens.

Hina Shamsi, who directs the ACLU's National Security Project, revealed the Obama administration has been "fighting hard" to prevent a judicial review of the strikes that killed al-Awlaki and the other Americans, including al-Awlaki’s 16-year-old son. It’s also worth noting that al-Awlaki’s son was killed hundreds of miles from his father and had recently arrived in Yemen to speak with his father who he hadn’t seen in years. The U.S. government claimed the boy was nothing more than collateral damage.

Until allegations in classified documents can be assessed in court, Shamsi said, the question over evidence remains unanswered. Shamsi called the U.S. actions "one of the most extreme and dangerous forms of authority that the executive branch can claim -- the power to kill people based on vague and shifting legal standards, secret evidence and no judicial review even after the fact."

Congressman Rogers’ goes on to claim the government simply cannot wait for the judicial process to play out and even downplays a bureaucratic and burdensome legal process that would only lead to more terror attacks. “Some in Washington have suggested that the government should give U.S. citizens who join al-Qaeda a trial before using force. In their view, the government should provide a full criminal trial, multiple rounds of appeals, and years of post-conviction review before removing someone who poses an imminent threat to the United States from the battlefield.”

“How many attacks might al-Awlaki have plotted while lawyers in Washington argued over his fate in a trial that neither the U.S. Constitution nor the laws of war required?” The question poses a few obstacles and omits the fact that the Yemeni government did have Mr. al-Awlaki in custody at one point, but the U.S. hadn’t charged him so the Yemenis released al-Awlaki.

While the ACLU admits Mr. al-Awlaki may have been a “bad guy” he was never allowed to present his side of events and now Americans as well as his family will never know the innocence or guilt of the alleged “bad guy.”

“Plus, even in the context of an armed conflict against an armed group, the government may use lethal force only against individuals who are directly participating in hostilities against the United States. Regardless of the context, whenever the government uses lethal force, it must take all possible steps to avoid harming civilian bystanders. But these are not the standards that the executive branch is using," Shamsi said.

Rogers also chronicles his dedication to fighting terrorism throughout his FBI and Congressional career. By his determination, an al-Awlaki trial would mean millions of wasted dollars or putting military service members at grave risk to capture a wanted terrorist. The lengthy legal wrangling could lead to a possible GITMO residence, but Shamsi states at least the dead would be alive and have a reasonable hope of eventual release. Of course, a trial may lead to a guilty verdict, where a jury of his peers could dispense American justice the way the founders intended.

Rogers wraps up his Op/Ed this way: “As a United States Army officer, FBI agent, and now as a member of Congress, I swore an oath to support and defend the Constitution. That is an oath I take very seriously, but constitutional due process protections do not and should not extend to al-Qaeda terrorists who plot to kill us.”

The Congressman must be unaware that there are risks to freedom. As SCOTUS has repeatedly affirmed, lawless lawmakers and presidents must adhere to the constitution and they are not free to make unilateral decisions against the U.S. citizenry.

Read last story “President Obama’s targeted kill list takes a hit” here: “In a victory for transparency, opponents of the President's veil of secrecy over drone killings has been partially lifted by the U.S. Second Circuit Court of Appeal's opinion filed on Monday in New York Times v. Departments of Justice (DOJ), Defense (DoD), and the CIA (Case Nos. 13-422 and 13-445).”

Previous Drone Strike Story:

The KD Report:

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© Copyright 2014 Kimberly Dvorak All Rights Reserved.

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