The presumption of innocence is understood as a cornerstone of both United States and United Kingdom law. However, it is now, Noam Chomsky has claimed, ‘long disappeared’. Such an accusation is perhaps unsurprising coming from the most persistent critic of US foreign policy. Chomsky was speaking at the launch of a new academic journal, State Crime, and was referring to the increasingly controversial US tactic of assassination of al-Qaeda leaders and associated individuals. For Chomsky, this practices goes far beyond what he called the Bush administration’s ‘kidnapping’ to Guantanamo Bay. The current strategy is, Chomsky claimed, developing into a ‘massive global assassination campaign’.
Chomsky’s pedigree as a speaker on such topics is well established. In 1988, long before Osama bin Laden conspired to destroy the World Trade Centre, Chomsky wrote The Culture of Terrorism as a searing critique of US secret operations overseas. Since then he has held both Bush administrations as well as their Democratic counterparts to account in a range of polemic publications on power, terrorism and international relations. This most recent critique fits then with a long history of highlighting that terrorism is just as easily committed by states as it is against them.
Despite Chomsky’s rhetoric, there are those who see targeted killing as part of a constitutional response to terrorism. Harold Koh, a former Dean of Yale Law School and strong critic of the Bush administration, now serves as Legal Adviser to the State Department. He supports the use of targeted killing and in a March 2011 speech to the European University Institute’s Global Governance Programme offered a robust defense of the tactic. This has caused dismay in US legal circles where President Obama’s willingness to use such tactics is portrayed as a continuation of the Bush administration’s extra-legal tactics. The recent killing of Anwar al-Awlaki prompted David Cole, a Professor at the Georgetown Law Center, to author a critique simply entitled ‘Killing Citizens in Secret’. Al-Awlaki’s possession of a US passport escalates the controversy further as it raises serious questions about what a state may do to its citizens if it believes them to pose a threat.
The revulsion amongst the US legal Left stands in contrast to comparative silence on this side of the Atlantic. The use of secret legal memos, extra-territorial action, and a war without geographic boundaries is all too familiar. But on this topic our legal commentators are nigh on silent. With a few, notable, exceptions, the tactic has gone largely without discussion in popular or academic legal commentary. Al-Awlaki’s killing was much-reported but little-debated. There are at least two possible explanations for this. First, President Obama is a far more popular figure in Europe than his predecessor ever was. Those who seem him as the best American President we could hope for may be slow to criticise. Second, European states might be viewed as less complicit in the use of targeted killing than they were in, say, extraordinary rendition to Guantanamo Bay. It is, we might hope, someone else’s problem.
These are not convincing excuses to turn a blind eye. President Obama may be more respectful of international law but he should not be afforded carte blanche in pursuing al-Qaeda. And European observers cannot be complacent about possible European complicity. Europe’s role in illegal detention, extraordinary rendition and torture was not immediately clear but the evidence that emerged over time was damning. Targeted killing raises questions about international law and the laws of war and, after al-Awlaki, about the fundamentals of constitutional government. The practice does not stop at the Atlantic shore – neither should the debate on its lawfulness.