U.S. Can Target American al-Qaida Agents
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,
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
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
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 (news
sites), 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
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 (news,
record), 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 (news
sites). 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 (news
sites)'s camps, Americans have been associated with all levels
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
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
The CIA declines comment on covert actions and the authorities it
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
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.
Associated Press Writer Ben Dobbin in Rochester, N.Y.,
contributed to this story.