Top of This issue Current issue
by Bruce A. Clark
Last Friday’s targeted missile strike in Yemen that killed Anwar al-Awlaki, the Muslim cleric born in the U.S. and also had Yemeni citizenship, has ruffled the feathers of some civil libertarians, especially the American Civil Liberties Union (ACLU). However, the U.S. government justifies the attack.
According to the New York Times, President Obama said “The death of Awlaki is a major blow to Al Qaeda’s most active operational affiliate, the lead role in planning and directing the efforts to murder innocent Americans.” The president also said that Mr. Awlaki was “the leader of external operations for Al Qaeda in the Arabian Peninsula” (AQAP). The same Times article also stated
Yemen’s official news agency, Saba, reported that the attack also killed Samir Khan, an American citizen of Pakistani origin and the editor of Inspire, Al Qaeda’s English-language Internet magazine, and an American official said the United States government believed Mr. Khan had been killed as well. It was not clear whether Mr. Khan, who proclaimed in the magazine last year that he was “proud to be a traitor to America,” was also a deliberate target of the strike.
A Defense Ministry statement said that a number of Mr. Awlaki’s bodyguards were also killed.
A different N.Y. Times article stated
The Obama administration had long argued that Mr. Awlaki, 40, had joined the enemy in wartime, shifting from propaganda to an operational role in plots against the United States, and last year it quietly decided that he could be targeted for capture or death like any other Al Qaeda leader. It was unclear whether the same formal determination had been made about another radicalized American who may have been [was!] killed in the same strike, Samir Khan.
Robert M. Chesney, a law professor at the University of
Texaswho specializes in national security law, said he believed the killing was legal. But he said it was “plenty controversial” among legal specialists, with experts on the left and on the libertarian right who are deeply opposed to targeted killings of Americans.
The administration’s legal argument in the case of Mr. Awlaki, Mr. Chesney said, appears to have three elements: First, Mr. Awlaki posed an imminent threat to the lives of Americans; second, he was fighting with the enemy in the armed conflict; and third, there was no feasible way to arrest him.
No public legal process led to Mr. Awlaki becoming, early in 2010, the first American citizen to be placed on the C.I.A.’s list of Qaeda-linked terrorists to be captured or killed. Officials said that every name added to the list undergoes a careful, if secret, legal review. Because of Mr. Awlaki’s citizenship, the decision to add him to the target list was approved by the National Security Council as well.
One complicating factor is that the precedents mainly involve the military detention of Americans who sided with the enemy during World War II, not the killing of Americans in a highly unconventional war. “What’s tricky here is that many people don’t accept that this is a war,” Mr. Chesney said. “I don’t think there has ever been a case quite like this.”
An article in the Los Angeles Times stated
Obama said the U.S. will be “resolute in its commitment” to wipe out Al Qaeda in the Arabian Peninsula, of which Awlaki was a leader.
“AQAP remains a dangerous, though weakened terrorist organization,” Obama said. “Make no mistake: This is further proof that Al Qaeda will find no safe haven anywhere in the world”
U.S. officials consider Awlaki’s death a significant victory for the administration, given the Muslim cleric’s connection to several plots on U.S. soil and around the globe.
On the other side of the fence, the N.Y. Times article said
Some civil libertarians questioned how the government could take an American citizen’s life based on murky intelligence and without an investigation or trial, claiming that hunting and killing him would amount to summary execution without the due process of law guaranteed by the Constitution.
With the help of the American Civil Liberties Union, Mr. Awlaki’s father, Nasser al-Awlaki, a former agriculture minister and university chancellor in Yemen, had challenged the administration’s decision to place his son on the kill list, but the lawsuit was thrown out of federal court in Washington.
On Friday, Jameel Jaffer, the A.C.L.U.’s deputy legal director, said the government’s targeted killings violated United States and international law. “As we’ve seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts,” Mr. Jaffer said.
But critics note that the Fifth Amendment to the Constitution states that no American shall be “deprived of life, liberty, or property, without due process of law.” In ordinary circumstances, that requires a trial and conviction before government officials can order the execution of an American.
The L. A. Times article stated
Republican presidential candidate Rep. Ron Paul (R-Texas) on Friday criticized Obama for “assassinating” Awlaki, saying he should have been tried in a U.S. court like domestic terrorist Timothy McVeigh.
“If the American people accept this blindly and casually, that we now have an accepted practice of the president assassinating people who he thinks are bad guys, I think it's sad,” Paul told reporters in Manchester, N.H. He said his disagreement arises largely from the fact that Awlaki holds dual American and Yemeni citizenship and authorities have never been “specific” about his crime.
There doesn’t seem to be much disagreement that Awlaki has done what the government says he has done.
The dispute is over the lack of American due process before he was targeted and killed.
There isn’t anyone who more strongly supports civil liberties than I do. Moreover, I have written in this forum before of my opposition to the death penalty. Among other reasons, I want to get our government out of the business of killing Americans. I also oppose all of the secret arrests, renditions, torture, secret prisons, the Patriot Act, no-fly lists without open due process, etc. That said, I must say that I think the killing of Awlaki was justified. If the reasons stated to the public are the real arguments used to put out contract on Awlaki, they are the wrong ones to avoid controversy over the U.S. government’s acts. My reasons are different than the ones the U.S. has used.
Even leaving out death penalty executions, the government kills Americans all the time. Whenever a person resists a lawful arrest and uses a weapon against the cops (police, FBI, etc., agents of some level of government) the person is going to end up dead with no due process. (Mistakes, like killing the wrong person, killing unarmed people in error, wrongful arrests [like Randy Weaver], mass murder [like the Waco fiasco], and such issues, are a different question entirely.) It’s perfectly legal under U.S. law. The reason it is justified is to protect bystanders and those officers attempting to make a lawful arrest.
In the situation of Awlaki,
As quoted above, Robert M. Chesney felt that “there was no feasible way to arrest him.” I disagree. A large effort between Yemeni and U.S. law enforcement, perhaps with helicopters, could have been mounted, at great expense, to try to arrest him. However, it’s unlikely that Awlaki and his bodyguards would have given up without a fight; Al Qaeda members don’t mind dying for the cause. Those trying to make the arrest probably would mind dying in the attempt. Even with all of such an effort to lawfully arrest Awlaki, it is unlikely that he could have been taken alive, and it would be highly likely that some of the government forces would have been killed or gravely injured.
In my opinion, being opposed to the action on the grounds that Awlaki wasn’t lawfully arrested and given U.S. due process is really stupid. Awlaki created the circumstances under which he was killed himself. It would almost definitely have evolved into a situation in which the suspect, Awlaki, would have resisted arrest, making it just like so many similar situations that happen here in the U.S., and the arresting officers would not just have brought home a dead suspect, but also a bunch of bodies from their own team. In this case, standing on the ceremony of due process is a phony argument. As in so many other situations in which the ACLU has expressed opinions in recent years, the organization should be ashamed of itself. A while back, I dropped out of the ACLU after 25 years because of its politicization and the dopey stands it had often taken. Insisting upon a situation that would cost the lives of arresting officers to arrest a corpse does not enhance the reputation of the ACLU.
I hate to be agreeing to the actions of the U.S. abroad, which have been, in my lifetime, usually wrong. However, in this case, I can’t reasonably disagree with what the United States did in Yemen.