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3 Apr, 2012

America’s Double Standards in the War on Terror

David Frakt, Associate Professor, Barry University School of Law

Over the last decade, the US has developed a very interesting double standard when it comes to the killing of American citizens. During the Bush administration, we developed the rule of “we can kill you, but you can’t kill us.” The Military Commissions Act of 2006 made it a war crime, punishable by death in a military commission, for any alien unlawful enemy combatant (now referred to as alien unprivileged enemy belligerents) to kill, or attempt to kill any American, including US soldiers, if the killing could be linked to the ongoing armed conflict. Since the entire world was declared a battlefield, this basically meant that anytime a foreigner (or at least a Muslim foreigner) killed an American, we considered it a war crime. It didn’t matter if we invaded your country (for instance, Afghanistan) and were actively trying to kill you; if you were an unlawful combatant, you couldn’t fight back. And by the way, in the war on terror, there were no lawful combatants on the other side because everyone fighting against us was deemed to be a civilian and “out of uniform.” Even the Taliban, the fighting forces of the government of Afghanistan at the time we invaded, were declared unlawful combatants.

The US has actually successfully prosecuted two individuals for this new war crime of “fighting Americans,” or what used to be called “war.” In 2007, the US prosecuted David Hicks, an Australian, for joining the Taliban and fighting against the US and the Northern Alliance at the beginning of the conflict in Afghanistan. Hicks pled guilty to “material support to terrorism” at a military commission in exchange for a short sentence and a return home from Guantanamo to Australia. In October 2010, Canadian Omar Khadr was convicted by a military commission of “murder in violation of the law of war” for throwing a hand grenade that killed a US soldier during a pitched battle in Afghanistan in which Khadr was shot twice. Khadr, just 15 at the time of this incident, was the first child soldier prosecuted as a war criminal in modern history. The US also tried, unsuccessfully, to prosecute another child, my client Mohammed Jawad, for “attempted murder in violation of the law of war” for allegedly throwing a hand grenade in Kabul that injured two US soldiers. The case fell apart when the military commission ruled that the primary evidence against Jawad, his “confessions,” were the product of torture and therefore inadmissible.

Now, under the Obama administration, we have added a corollary to the rule of “we can kill you, but you can’t kill us,” namely, “you can’t kill us, only we can kill us.” When an American citizen is killed by a foreign armed group in a place like Yemen, as happened recently with teacher Joel Shrum, we rightly consider it a terrorist act, and perhaps even a war crime. If a US citizen were to be killed by a foreign intelligence service, we would treat it as an assassination, and possibly an act of war. But, according to a March 5, 2012, speech at Northwestern Law School by Attorney General Eric Holder, it is perfectly lawful for our own intelligence service to target and kill an American citizen, at least outside the US where “capture is not feasible.” And if a few innocent civilians happen to be killed in the process, that is just incidental collateral damage. As my friend and colleague Morris Davis said in a JURIST article in October, even if you accept the notion that people like Anwar al-Awlaqi are lawful military targets, the CIA targeted killing program still violates the international law of war because CIA personnel are not lawful combatants — uniformed personnel of a national military — but rather are civil servants and government contractors. Indeed, the lack of uniform and lack of membership in a state military are the precise criteria prosecutors have cited for claiming that accused unlawful combatants like Omar Khadr and Mohammed Jawad were violating the law of war when they engaged in hostile acts towards US soldiers.

Incredibly, according to an article in the New York Times, the Pentagon actually changed the definition of “murder in violation of the law of war” in the 2010 Manual for Military Commissions (the implementing regulation for the Military Commissions Act) to accommodate concerns that the language could be used to argue that CIA Predator operators were violating the law of war. Holder insists that American citizens are given full constitutional due process before being targeted for killing, and that only Americans who present an “imminent threat of violent attack” will be killed. The US government’s elastic concept of imminent threat apparently extends to unarmed civilians who are driving across the barren desert of Yemen. No wonder the Obama administration doesn’t want the targeted killing program subjected to judicial oversight.

Sadly, the right of one American to kill another American doesn’t seem to be limited to our government’s overseas anti-terrorism efforts. As Trayvon Martin’s family tragically learned last month, when an American citizen follows an unarmed teenager walking home from a convenience store, confronts him, then shoots and kills him, he may not even be arrested, much less charged with a crime. The ever more prevalent “stand your ground” laws, requiring only that one have a reasonable belief of a “threat of imminent peril” to kill someone, regardless of one’s ability to avoid the threat by simply walking away, are the logical domestic criminal counterpart to our nation’s aggressive preemptive self defense doctrine, under which we have gone to war on the same flimsy suspicions that George Zimmerman acted upon. Combining these distorted self defense laws with the growing popularity of state laws permitting concealed weapons means that, in many states, every American must now be viewed as a human Predator drone, capable of unleashing lethal force without warning at the slightest provocation. How many more Americans must Americans kill before we stop this madness?

David Frakt is an Associate Professor of Law at Barry University School of Law and a Lieutenant Colonel in the US Air Force Reserve Judge Advocate General’s Corps. He is a highly regarded expert in the field of international war crimes, military law and military commissions and has been frequently quoted in the national media. From 2008-2009, Frakt served as the lead defense counsel with the Office of the Military Commissions, representing two detainees at Guantanamo facing war crimes and terrorism charges. His views do not reflect the views of the US Air Force or Department of Defense.