By Pam Benson
The targeted killing of those suspected of engaging in terrorist activities against the United States, including American citizens, is justified and legal, according to the Defense Department's chief lawyer.
Pentagon general counsel Jeh Johnson is the first government lawyer to officially weigh in on the legal justification for killing a U.S. citizen since American born Yemeni cleric Anwar al-Awlaki was killed by a CIA missile fired from an unmanned aerial vehicle last September.
In comments Wednesday night during a speech at Yale University, Johnson made no mention by name of al-Awlaki or the classified CIA drone program.
"Belligerents who also happen to be U.S. citizens do not enjoy immunity where non-citizen belligerents are valid military objectives," Johnson said.
He cited a 2004 Supreme Court decision as the justification for his comment.
"Hamdi v. Rumsfeld, stated that "[a} citizen, no less than an alien, can be 'part of or supporting forces hostile to the United States or coalition partners' and 'engaged in an armed conflict against the United States.'"
Johnson's remarks mostly mirrored what State Department counsel Harold Koh said in a speech two years ago to the American Society of International Law.
"In an armed conflict, lethal force against known, individual members of the enemy is a long-standing and long-legal practice," Johnson said. What has changed is the technology used to attack suspected terrorists.
Whereas Koh specifically referred to lethal attacks by unmanned aerial vehicles as a legal method of targeting terrorists, Johnson sidestepped any direct mention of the use of armed drones.
Instead, he referred to advanced technology where "we are able to target military objectives with much more precision, to the point where we can identify, target and strike a single military objective from great distances."
Johnson reiterated Koh's assessment that targeted killing is not assassination.
"Under well-settled legal principles, lethal force against a valid military objective, in an armed conflict, is consistent with the law of war and does not, by definition, constitute an "assassination," said Johnson.
Until recently, no one in the Obama administration would talk publicly about the CIA's secret drone program. President Barack Obama broke the silence last month when he defended the program during a question and answer session on the Internet.
Al-Awlaki is not the only American who has been killed by a drone strike since the United States began its offensive against al Qaeda following the 9/11 terrorism attacks in 2001.
Ahmed Hijazi, a Lackawanna, New York native, died in 2002 when a hellfire missile destroyed a car he was traveling in with five other people in Yemen. The intended target was Abu Ali Harithi, an associate of Osama bin Laden, who allegedly was involved in the attack on the USS Cole, which killed 17 U.S. sailors. At the time, U.S. officials referred to Hijazi as collateral damage.
American Samir Khan was with al-Awlaki when the CIA destroyed their vehicle in Yemen. Khan was the editor of the al Qaeda English language magazine, "Inspire."
Al-Awlaki's son was among nine people killed by a drone attack in Yemen two weeks after his father died. U.S .officials said the teenager was not the intended target, and was in the wrong place at the wrong time.
Human Rights First was not satisfied with Johnson's defense of targeted killing.
In a written statement, Raha Wala, the group's advocacy counsel, said, "The American people deserve to know who the government believes it can kill in our names. General Counsel Johnson's speech did little to help shed light on the government's approach to targeted killing. It is this unexplained secrecy that has caused so many to question this program."
A number of lawmakers and civil liberties groups have called on the administration to release more information about the legal justification for targeting Americans.
Sen. Dianne Feinstein, D-California, believes al-Awlaki was "a lawful target" but called on the administration to provide details about its legal rationale in order "to maintain public support of secret operations."
U.S. Attorney General Eric Holder is scheduled to give a speech on March 5 in Chicago where he is expected to discuss the issue of trageting Americans.
Johnson also said the legal authority for the military's counterterrorism efforts was the Authorization for the Use of Military Force (AUMF) bill passed by Congress one week after the 9/11 attacks. But he added, AUMF was not open-ended. "It does not authorize military force against anyone the executive labels a 'terrorist'", Johnson said.
"Rather, it encompasses only those groups or people with a link to the terrorist attacks on 9/11 or associated forces."
He went on to define an associated force as a group that is aligned with al Qaeda and has "entered the fight against the United States or its coalition partners."
Human Rights First welcomed Johnson's comments that the war is not open-ended, but said the administration needed to make the end point clearer. Raha Wala said, "suggesting the war extends outside Afghanistan to vaguely define associated forces is much too amorphous.
"With the end of the war in Iraq, the death of bin Laden and the decimation of al Qaeda, the end of combat operations in in Afghanistan should mark the clear end of war."
Wala said it is time for law enforcement and intelligence officers to take over response to the terrorism threat.