Source/Credit: The News International
By Mrs. Talat Farooq | October 15, 2011
A senior U.S. official told CNN on Monday that a classified Justice Department memorandum was prepared in the summer of 2010. It made the case that an American citizen, believed to be a national security risk, could be legally killed by the United States if it was not possible to capture him alive because of diplomatic and operational considerations. The memo recommendations, approved by President Obama, facilitated the killing of Anwar al-Awlaki, the American born Al Qaeda leader hiding in Yemen.
The New York Times (October 9,2011) reported that the Obama administration has refused to acknowledge or discuss its role in the drone strike that killed Mr. Awlaki last month; technically it remains a covert operation. According to the 9/11 Commission report Awlaki had interacted with three of the would-be 9/11 hijackers.
U.S. officials later alleged that Awlaki recruited the so called underwear bomber to blow up the Detroit bound flight and also exchanged e-mails with the Fort Hood shooter. The secret memorandum recommending Mr. Awlaki’s murder did not offer an independent analysis of the evidence against him. However, despite concerns expressed by rights activists and intellectuals, the US government has resisted the demand for public explanation.
The memo that followed extensive interagency debate gives green light to kill an American without due process of law or the right to a fair trial. And this despite the constitutional protections provided by the Bill of Rights as well as international laws of war. Since Mr. Awlaki had joined the enemy forces the Fifth Amendment guaranteeing due process of law did not apply to him even if he held American nationality. He had become a ‘co-belligerent’ with Al Qaida and intended to harm the United States. The secret document reflects the changed ground realities in the aftermath of Sept 11 as the phenomenon of terrorism continues to reshape the relationship between state authority and civil liberties in the US.
The Bush administration maintained that modern warfare has become asymmetric wherein a technologically and militarily inferior combatant is capable of striking a superior military power. Intelligence gathering and sharing is the first line of defense against a treacherous and shadowy enemy. It is therefore critical for the US to strengthen the authority of the CIA to enhance its foreign intelligence gathering capabilities and integrated warning systems within the US by working closely with FBI. This has invariably impinged on civil liberties at home. Yet, President Obama has more or less followed the Bush tenets.
The advocates of the above mentioned secret memo ascribe to the school that believes that terrorists are not armed combatants as recognized by international law. They are instead enemy aliens with no right to due process of judicial review. Indeed the captured terrorism suspects at Guantanamo Bay are not treated as prisoners of war in accordance with the Geneva Convention. The American National Security Strategy against terrorism is based on the belief that it is the only appropriate response to asymmetric warfare; the only appropriate response that can ensure US domestic security. Do they have a point?
The pluralistic political system of the US gives considerable weight to public opinion. Elections are won more on domestic rather than foreign policy issues. The passage and implementation of the Patriot and Homeland Security Acts after 9/11 are a testimony to the fact that actions ensuring national security are supported by the American public despite their clash with professed American principles of individual freedom.
There may be debates on the separation of powers between the US executive and the congress during war, yet in practice, rather than stand in opposition, the two branches have usually compromised over national security matters. We may hate the US and criticize its actions against the Muslims but the truth is that the US leadership knows its political survival is linked to domestic security and they would make sure it is protected, even if that means undermining ‘due process of law.’
Sadly, no such compulsion drives our political elite. The common man has recently found some solace in the actions of the superior judiciary. However, it seems that our judicial system has its hands tied in dealing with under-trial terrorists. When the terrorists are let off the hook due to what the court calls paucity of evidence one wonders if certain legal boundaries need to be redefined.
Take the case of Malik Ishaq of the banned Sipah-e-Sihaba. He had stated in an Urdu daily in October 1997 that he was involved in the killing of 102 people. He was arrested and eventually charged with 70 of these murders. He was charged with involvement in 44 violent cases, including the attack on the Sri Lankan cricket team. The Supreme Court released him recently because the prosecution was unable to make a strong case and provide solid evidence. Personal safety and fear of retaliation undoubtedly played a part but was that the sole reason?
The fact that no terrorist has ever been hanged from the highest tree in the land over the last decade creates doubts as to the effectiveness of the prevailing political and legal complexities. The petulant reaction of the Mumtaz Qadri support group substantiates the fact that militant groups have gotten used to getting away with murder; they cannot seem to cope with the fact that one of their men has been sentenced to death for murdering another human being in broad daylight. They expect impunity because by now they are used to it; period.
Will the people of Pakistan and the 35,000 dead civilians ever find justice? They are the innocent victims of not only American drone attacks but especially of home grown terrorists associated with international militant networks. Can the Pakistani terrorists with links to the Taliban and Al Qaeda ever be brought to justice in a Pakistani court of law? If not, then can the executive and the parliament find alternate ways of protecting the people? Can the judiciary implement more stringent laws? Can the state rein in the monster that some powerful elements of the state have allowed to grow and prosper? This last question probably contains the answer.
Today the common Pakistani down the street feels vulnerable and unprotected. Ironically, it is the likes of Shia-hating Malik Ishaq who feel secure. Upon his release he praised the Supreme Court’s decision and declared: ‘justice has finally prevailed.’ Pakistan, it seems has graduated from being the theatre of war to becoming the theatre of the absurd!
The ongoing war on terror has brought into focus the age old question of morality during war. The question under the present circumstances is complicated by the unconventional nature of the conflict. The terrorists have no qualms in employing prohibited war tactics and contravening international law, while expecting the nation states to adhere to the lawful rules of engagement. So, are the traditional concepts of deterrence and ethics effective against violent non state actors who conform to neither personal morality nor international norms? Are there any easy answers?
The writer is a PhD student at Leicester, UK. Email: talatfarooq11@gmail.com
Read original post here: To kill or not to kill
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