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Firstly, the president’s inherent constitutional authority as commander-in-chief to prosecute the war against Al-Qaeda, which had declared war against the United States and carried out attacks against Americans including the 9/11 assault on our homeland, should reasonably include the authorization of the use of force against Al-Qaeda leaders still actively engaged in planning and carrying out further war activities against the United States. In the case of Al-Qaeda, the president’s own constitutional authority as commander-in-chief is buttressed by Congress’s 2001 Authorization for Use of Military Force, which is still in effect. It authorized the president
to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.
Yemen was already part of the zone in which Al-Qaeda was conducting its war against the United States even before 9/11. It had previously conducted a suicide attack against a United States Navy destroyer, the USS Cole, on October 12, 2000 while it was harbored and refueled in the Yemeni port of Aden. Seventeen American sailors were killed, and 39 were injured.
Al-Qaeda has continued to plan and launch further attacks against Americans from bases in Yemen and other countries. The U.S. government determined that Al-Qaeda’s most active operational affiliate was in Yemen, led by Al-Awlaki. In such circumstances, the president was exercising his authority as commander-in-chief and operating within the scope of the congressional authorization “to deter and prevent acts of international terrorism against the United States” when determining the most efficient means of defeating Al-Qaeda. The president’s choice of means should necessarily include his decision to eliminate the top leaders of Al-Qaeda in Yemen and other Al-Qaeda strongholds, who are still actively planning and implementing attacks on Americans from those strongholds. Whoever fits within that enemy category, whether or not an American citizen, should be fair game if he remains within the area deemed to be seedbeds for terrorism that threatens the United States. Al-Awlaki was thus a legitimate military target.
Secondly, add to the president’s choice of means to prosecute the war against Al-Qaeda, of which Awlaki was one of its most dangerous leaders, Awlaki’s own choice of actions in Yemen. He waived his rights to hide behind the U.S. judicial system by evading U.S. law enforcement authorities, spurning all opportunities to request access to the U.S. courts (whose legitimacy he completely rejected), calling for jihad against the West, and engaging in operational war planning from Yemen for an organization that has already carried out terrorist attacks against the United States.
As the court in the ACLU case noted, there was
nothing preventing him from peacefully presenting himself at the U.S. Embassy in Yemen and expressing a desire to vindicate his constitutional rights in U.S. courts. Defendants have made clear — and indeed, both international and domestic law would require — that if Anwar Al-Aulaqi were to present himself in that manner, the United States would be “prohibit[ed] [from] using lethal force or other violence against him in such circumstances”… [H]e has made clear his belief that “international treaties” do not govern Muslims, and that Muslims are not bound by any law — U.S., international, or otherwise — that conflicts with the “law of Allah.”
Awlaki made his own choice. He could have availed himself of the U.S. judicial system. But as the court in the ACLU case concluded, all available evidence as to Anwar Al-Awlaki’s intentions and preferences based on his public statements and actions “suggests he would have no desire to use the U.S. judicial system as a means of preventing his alleged targeting by the United States.”
Instead, Awlaki chose to evade U.S. law enforcement and reject the U.S. legal system’s jurisdiction over him. And, most significantly, he chose to use the area in which he was taken down to continue plotting terror attacks against American civilians as part of Al-Qaeda’s declared war against the United States.
Justice was served.
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