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American al-Qaida operatives can be killed
Secret finding signed by Bush gives CIA authority, officials say
Associated Press
WASHINGTON -- American citizens working for al-Qaida overseas can legally
be targeted and killed by the CIA under President Bush's rules for the war
on terrorism, U.S. officials say.
The authority to kill U.S. citizens is granted under a secret finding
signed by the president after the Sept. 11 attacks that directs the CIA to
covertly attack al-Qaida anywhere in the world. The authority makes no
exception for Americans, so permission to strike them is understood rather
than specifically described, officials said.
These officials said the authority will be used only when other options are
unavailable. Military-like strikes will take place only when law
enforcement and internal security efforts by allied foreign countries fail,
the officials said.
Capturing and questioning al-Qaida operatives is preferable, even more so
if an operative is a U.S. citizen, the officials said, speaking on the
condition of anonymity. Any decision to strike an American will be made at
the highest levels, perhaps by the president.
U.S. officials say few Americans are working with al-Qaida but they have no
specific estimates.
The CIA already has killed one American under this authority, although U.S.
officials maintain he wasn't the target.
On Nov. 3, a CIA-operated Predator drone fired a missile that destroyed a
carload of suspected al-Qaida operatives in Yemen. The target of the
attack, a Yemeni named Qaed Salim Sinan al-Harethi, was the top al-Qaida
operative in that country. Efforts by Yemeni authorities to detain him had
previously failed.
But the CIA didn't know a U.S. citizen, Yemeni-American Kamal Derwish, was
in the car. He died, along with al-Harethi and four other Yemenis.
The Bush administration said the killing of an American in this fashion was
legal.
"I can assure you that no constitutional questions are raised here. There
are authorities that the president can give to officials," said Condoleezza
Rice, Bush's national security adviser, after the attack. "He's well within
the balance of accepted practice and the letter of his constitutional
authority."
American authorities have alleged that Derwish was the leader of an
al-Qaida cell in suburban Buffalo, N.Y. Most of the alleged members of the
cell were arrested and charged with supporting terrorists, but Derwish was
not accused of any crime in American courts.
Family members in Buffalo say they have yet to be contacted by the U.S.
government about Derwish's death, which they learned about through media
reports.
Mohamed Albanna, vice president of the American Muslim Council's Buffalo
chapter, urged federal authorities to confirm the death.
"It's just a matter of common respect for the family here. After all, they
are U.S. citizens." He added that Derwish "has not been tried and has not
been found guilty, so, in that sense, he's still an innocent American who
was killed. That's what the law states."
The Bush administration sees it differently. In killing him, the
administration defined Derwish as an enemy combatant, the equivalent of a
U.S. citizen who fights with the enemy on a battlefield, officials said.
Under this legal definition, experts say, his constitutional rights are
nullified and he can be killed outright.
Sen. Richard Shelby, R-Ala., vice chairman of the Senate Intelligence
Committee, supported this policy. "A U.S. citizen terrorist will kill you
just like somebody from another country."
The government has done little publicly to justify Derwish's killing.
Officials have privately suggested his association with al-Harethi is
reason enough.
Other Americans have been similarly classed since Sept. 11, including Jose
Padilla, accused of plotting to use a radioactive "dirty bomb" in the
United States, and Yaser Esam Hamdi, who was found fighting with the
Taliban in Afghanistan. Both are in military custody.
However, a third American, John Walker Lindh, was turned over to the
civilian courts after being found serving as a foot soldier with the
Taliban. He was sentenced to 20 years in prison after pleading guilty to
supplying services to the Taliban and carrying explosives in commission of
a felony.
While officials believe only a small number of U.S. citizens went through
Osama bin Laden's camps, Americans have been associated with all levels of
al-Qaida.
This includes high-level operative Wadih El Hage, a Lebanese-American who
was convicted in connection with the 1998 bombings of two U.S. embassies in
Africa. A former U.S. Army soldier, Ali Mohamed, worked as a trainer and
target scout for bin Laden before he was captured and convicted.
Previously, the government's authority to kill a citizen outside of the
judicial process has been generally restricted to when the American is
directly threatening the lives of other Americans or their allies.
Earlier presidential authorizations of lethal covert action, in Latin
America and elsewhere, have also tacitly allowed the killing of Americans
fighting with the other side, former senior intelligence officials said.
But the officials knew of no instances where U.S. citizens were targeted.
The CIA declines comment on covert actions and the authorities it operates
under.
Experts on the Constitution and the international laws of war said the Bush
administration's definitions create problems.
Unlike the enemy in previous wars, al-Qaida members don't wear uniforms or
serve in a foreign nation's army. Nor do they take to traditional
battlefields, except in Afghanistan. But the Bush administration and
al-Qaida together have defined the entire world as a battlefield -- meaning
the attack on al-Harethi and Derwish was tantamount to an air strike in a
combat zone.
"That is the most vulnerable aspect of the theory," said Scott L. Silliman,
director of Duke University's Center on Law, Ethics and National Security.
"Could you put a Hellfire missile into a car in Washington, D.C., under the
same theory? The answer is yes, you could."
Human rights groups were divided on the legality of the attack on
al-Harethi. Amnesty International suggested it was an extrajudicial
killing, outlawed by international treaty, while Human Rights Watch
officials said they believed it was a legitimate wartime action.
http://www.chron.com/cs/CDA/ssistory.mpl/nation/1686801