Online, Student Articles — November 26, 2011 at 5:08 pm

The Targeted Killing of Al-Awlaki

By David Husband –

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Recently, there has been a tremendous uproar over the targeted killing of Anwar al-Awlaki, a suspected al-Qaeda affiliate in Yemen. Glen Greenwald, criticizing the Obama administration, claims, “The Executive Branch decided it has the authority to target U.S. citizens for death without due process, but told nobody (until it was leaked) and refuses to identify the principles that guide these decisions. It then concluded in a secret legal memo that Awlaki specifically could be killed, but refuses to disclose what it ruled or in which principles this ruling was grounded.”

Al-Awlaki’s death by a United States drone strike differs from the elimination of other Al-Qaeda operatives in Afghanistan and Pakistan in two key ways: al-Awlaki was not technically in a “hot zone” or battleground and he was an American citizen. This post will suggest that we as a nation need to address due process concerns regarding American citizens by constructing new institutional safeguards.

While both factors are vitally important, al-Awlaki’s American citizenship deserves special attention. Most Americans have an intuitive sense that among our constitutional rights is the right not to be killed by the state, without the exercise of due process. The Fifth Amendment of the Constitution supports this intuition by stating that “No person shall be…deprived of life, liberty, or property, without due process of law.”

Al-Awlaki is the first known American citizen actively targeted for death under the Obama Administration’s campaign against al-Qaeda and its affiliates. In this sense, the Obama Administration has broken new ground, going further than the Bush Administration, which sought only to detain American citizens as enemy combatants, but never sought to eliminate American citizens through targeted strikes.

The Obama Administration has followed the Bush Administration in having the Department of Justice prepare a secret memo reportedly justifying the decision to target al-Awlaki (which it has so far refused to release). The Bush Administration’s secret memo did not deal with targeted killings, but with the interrogation practices of the CIA, which it justified by adopting a narrow definition of torture. It was only after the memo emerged into the public sphere that its legal reasoning could be analyzed and critiqued. This process was so harrowing for the Bush Administration that the torture memos were recalled and superseded by more carefully drafted memos.

If we have learned anything over the past decade, it is that memos prepared in secret by the Department of Justice cannot always be relied upon to fully consider the grand scope of our constitutional tradition and can be easily influenced by the urgent pressures of necessity. If outside observers and commentators—the news media, Congress, and the public—are not allowed to examine the legal conclusions of an OLC memo, the foundations underlying that memo should not to be trusted. The Executive Branch cannot be trusted to dispassionately analyze and understand the issues when dealing with the immense pressure of keeping the nation safe. Issues of such vital importance to every American citizen ought to be brought out into the open, debated and discussed. As Justice Brandeis proclaimed, “Sunlight is said to be the best disinfectant.”

Revealing the legal analysis of the constitutional issues enabling the American government to target American citizens does not endanger our national security. There are no secret agents undercover in Yemen whose lives are on the line and no foreign assets or sources to protect. There should be no fear that, by reading the memo, the enemy can discover our plans to strike against then. Our enemy is surely already aware that we will target them wherever and whenever—revealing the secret memo justifying why we can dispatch our fellow Americans would not endanger American security.

The United States must be able to respond to threats, including those posed by our own citizens. Citizenship cannot be a magical talisman that our opponents can wave in our faces to protect themselves when they seek our destruction. On the other hand, citizenship must mean something. The Fifth Amendment guarantee of Due Process must mean more than what it seems to have meant in this case—secret meetings between unidentified lawyers and invisible policymakers in a locked and highly secure room and a secret memo leading to the death of an American citizen.

The government’s legitimate interest in responding to threats could be balanced in the following way: when seeking to put American citizens on a targeted killing list, the Government should be required to approach a duly appointed court and engage in an adversarial process, where the American citizen is represented in absentia. The fact that a trial is occurring must be publically announced, including the name of the individual who is considered for targeting. The ultimate result of the trial must also be announced. These procedures serve the function of formally providing notice and allow the accused a chance to turn himself in or to contest the proceedings in some manner.

Almost all citizens have someone who can represent them—in this case al-Awlaki’s father attempted to vindicate his son’s rights through the courts, only to be turned away. If there are no family members or friends who can represent a suspect’s interests, we have many organizations dedicated to civil liberties, such as the ACLU, who would gladly stand up and defend the rights of their fellow citizens.

This trial can be held in secret, subject to reasonable restrictions. The government does have a need to protect the secrecy of its evidence and procedures, but a court designed to allow in camera examination of the evidence would provide a far greater check on the government than the complete lack of judicial review that presently exists.

The result of any in abstentia trial should be formally certified by the Attorney General, the Secretary of Defense, the Secretary of State, the Vice-President, and the President of the United States. Once this is done, the American citizen can be placed on the targeting list, having had due process (at least in absentia) and having been given formal notification of the proceedings before they occurred, notification of the proceedings while they occurred, and notification of the eventual result. Any American citizen placed on a targeted killing list should be removed from that list if he surrenders himself to American law-enforcement or the military. If he chooses to surrender, he will be tried for treason, with the results of the previous trial mooted.

Will this make the war on terror more difficult to prosecute? Yes, probably, at least with regards to American citizens. However, this is a price worth paying in order to preserve the values and protections that we commonly associate with American citizenship and to fully vindicate the Fifth Amendment guarantees of Due Process.

Image courtesy of the Journal of Foreign Relations.

6 Comments

  1. Is the United States to apply domestic civil and criminal law to our enemies in armed conflict? No precedent exists that supports such a confused position.

    If we are in an armed conflict with Al Qaeda, which you have not disputed, and if al-Awlaki was known to be in a position of leadership in that organization, which you have also not disputed, then under international law he was a lawful military objective. Under our domestic law (See, e.g., Ex Parte Quirin and Hamdi v. Rumsfeld) an enemy combatant who happens to be an American citizen is still a lawful target (meaning he may be killed as a measure of first resort). The memo may be classified, but a simple Google search would reveal that these legal principles are no secret.

    Your proposed solution transforms the American military into law enforcement and imposes a duty to capture all enemy (how else would you determine whether any of them are American citizens?). Here’s why I say that: It assumes that the only American citizens who might be targeted can be identified in advance and placed on some list somewhere, and ignores the more likely scenario (and more frequent) in which unknown or unidentified US citizens fight alongside the enemy, but are not in command (John Walker Lindh, for example). Your rule arguably denies them equal protection of the law, unless applied across the board.

    This tendency to conflate domestic criminal law and international law of armed conflict seems to pervade much of the public discussion on this issue. It is unfortunate.

    The real controversy should involve the lack of any geographic limitation in the Authorization for the Use of Military Force, which results in lack of Congressional oversight for any forays into new theaters of conflict when the President claims authority under the AUMF.

  2. Pingback: Lawfare » Today’s Headlines and Commentary

  3. Good post. These are common sense to me.

    Rob, talk law all day, but this post is about facts. Husband clearly admits that a US citizen could be a lawful target. What matters is that the finder of fact is impartial. It is convenient for you that the facts about Awlaki aren’t mentioned here, but that doesn’t change the weakness of your position. There is nothing in the public domain that indicates Awlaki was “a part of” al Qaeda. The evidence is secret. Husband is saying fine, keep it secret, but let a judge decide the credibility and strength of the evidence. If it is, fire away. How can you argue with that?

  4. Your point about not knowing whether a target is American or not is absurd. It doesn’t stop the CIA from droning unnamed suspects in Pakistan. And the USG doesn’t care whether an American citizen will be collateral damage either. So rest assured unlucky citizens can still be fried. Only when the mainstream media knows a suspects name before they are killed will this situation arise.

    And spare me your inclusion of JWL in your diatribe. There is absolutely no evidence he raised even a fist against an American. I guess that doesn’t matter if you don’t care about evidence.

  5. Rob, okay, diatribe was too harsh. Sorry. And I agree with your last point. But from what we’ve learned about Congressional “oversight” this week, the President has nothing to fear from them. The ridiculousness of passing a law that says the current law won’t change, while disagreeing on what the current law is, is almost too much for even a cynic to swallow. And we’ve also found out that the 2002 AUMF (remember Iraq?) is probably broader than the 2001 version. See Emptywheel for details.

  6. If my history serves me correctly, during WW2, several hundred Americans joined Hitler’s army and were used as infultrators, agressors, and spies against Allied forces after Normandy.

    When captured, Eisenhower immediaely ordered them shot as spies, and this was done, without apology and no legal case was made as done here.

    Is there any difference in a targeted execution other than these American combatants are not firstly captured, interviewed and then shot?

    Let us not forget that a smoking gun is not necessary to prove capital guilt, certain Japanese Generals were hanged for losing control over their responsibilities towards Philipino civilians as the war drew to a close and their army ran amok.

    Awlaki was a combatant civilian, not covered by the Geneva Convention concerning wars, serving behind the lines, but not out of harm’s way, he is simply a casualty of war, nothing more or less. He was vocally proud to be an active ‘terriorist’ and willing to take the risk of personal harm.

    Fortunatley, the assasin was assasinated first.

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