You could call it a latter day Star Chamber, a secret panel, operating in the White House, that decides the fate of American militants.
(Reuters) - American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.
There is no public record of the operations or decisions of the panel, which is a subset of the White House's National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.
[...] The role of the president in ordering or ratifying a decision to target a citizen is fuzzy. White House spokesman Tommy Vietor declined to discuss anything about the process.
[...] Some details about how the administration went about targeting Awlaki emerged on Tuesday when the top Democrat on the House Intelligence Committee, Representative Dutch Ruppersberger, was asked by reporters about the killing.
The process involves "going through the National Security Council, then it eventually goes to the president, but the National Security Council does the investigation, they have lawyers, they review, they look at the situation, you have input from the military, and also, we make sure that we follow international law," Ruppersberger said.
Other officials said the role of the president in the process was murkier than what Ruppersberger described.
They said targeting recommendations are drawn up by a committee of mid-level National Security Council and agency officials. Their recommendations are then sent to the panel of NSC "principals," meaning Cabinet secretaries and intelligence unit chiefs, for approval. The panel of principals could have different memberships when considering different operational issues, they said.
[...] Two principal legal theories were advanced, an official said: first, that the actions were permitted by Congress when it authorized the use of military forces against militants in the wake of the attacks of September 11, 2001; and they are permitted under international law if a country is defending itself.
Decisions about which American citizens live or die by the hand of the government should not be murky, should not be made outside of an establishing law. That's pretty much a founding principle of this government. When the government says they have legal authority and memos saying that the law allows them to target and kill American citizens, they need to show their work. Which they haven't. As Marcy Wheeler posits, "If the legal case for killing Awlaki is so sound, then why maintain presidential plausible deniability?"
All of this is carried out, officials insist, lawfully under the AUMF for our engagement in Afghanistan immediately following the 9/11 attacks. That AUMF has been the justification for everything from the unjustified invasion of Iraq to the treatment of detainees, to extraordinary rendition. It's quite possibly the most overused, stretched piece of legislation of modern times. But it is not a replacement for a set of laws of war that responds to the new environment in which transnational terrorism and our response to it takes place.
If existing law is not adequate to both protect the rights of American citizens and keep the nation safe, then new laws need to be made. That's tough work, but necessary if this nation is to maintain its founding principle as a nation built on the rule of law. The alternative is for us all to become so many Alberto Gonzaleses, declaring notion of operating in war under the rule of law "quaint."