Awlaki's Killing: Legally Justified

Justice has been served.

On September 30, 2011, a U.S. drone air strike killed Anwar Al-Awlaki, an American citizen with ties to Al-Qaeda in the Arabian Peninsula whom the U.S. government had specifically targeted for death or capture. Awlaki was cut down in Yemen where he had been hiding and reportedly had been helping plan terrorist plots against the American homeland.

Awlaki was considered to be the most dangerous terrorist threatening the lives of American civilians following the death of Osama bin Laden. He turned on his fellow American citizens by calling for violent jihad to kill them and leading efforts to carry out his threats. For example, he had reportedly provided instructions to Umar Farouk Abdulmutallab, the man accused of attempting to detonate a bomb aboard a Detroit-bound Northwest Airlines flight on Christmas Day 2009. He was also said to have had a connection to the effort in 2010 to use explosives-laden printer cartridges to blow up cargo planes bound for the United States.

Yet despite the U.S. government's expressed concern regarding Awlaki's expanding Al-Qaeda operational role and his ability to communicate widely with an English-speaking audience to recruit more jihadists, the government had not publicly charged Awlaki with any crime, much less issued any warrant for his arrest. Instead, he was reportedly the first U.S. citizen added to a list of suspected terrorists the CIA was authorized to kill, without charge, trial, or conviction.

Civil libertarians, such as the American Civil Liberties Union, are aghast that any American citizen, no matter how dangerous, could be targeted for execution by his government without due process of law pursuant to the U.S. Constitution and international law. The ACLU, along with the Center for Constitutional Rights, had even gone to court on behalf of Awlaki's father to challenge the government's decision to authorize the targeted killing of his son. They had sought an injunction prohibiting the government from intentionally killing Anwar Al-Awlaki "unless he presents a concrete, specific, and imminent threat to life or physical safety, and there are no means other than lethal force that could reasonably be employed to neutralize the threat." They argued that where there are means other than lethal force that could reasonably be employed to neutralize any threat that Awlaki may have posed, his targeting for execution violates (1) Awlaki's Fourth Amendment right to be free from unreasonable seizures and (2) his Fifth Amendment right not to be deprived of life without due process of law.

The federal district court dismissed the ACLU case on the grounds that the plaintiff, Awlaki's father, did not have legal standing to challenge the targeting of his son, and that the case raised “political questions” not subject to court review.

Last Friday, U.S. drones had the last word in sealing Al-Awlaki's fate.

Did the president of the United States have the legal authority to order Awlaki's killing without any supervening judicial oversight and review? After all, the courts have placed some restrictions on presidential assertion of wartime powers as commander-in-chief. Judicial limitations on the circumstances and conditions of detention of suspected terrorists provide an obvious example.

Awlaki's actions would seem to match the definition of treason in Article III, Section 3 of the Constitution: "Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."

However, this same section also contains restrictions on the proof necessary to convict someone of treason, requiring "the testimony of two witnesses to the same overt act, or on confession in open court."

But it is a mistake to regard the military action that resulted in Awlaki's death as punishment for the criminal act of treason, or for any other crime for that matter. It was a military action to kill an enemy jihad warrior before he had an opportunity to plan and implement more acts of war against Americans. As General George Patton said about warfare, "our task is to kill the enemy before we are killed."

There are at least two reasons that, when considered together, would appear to strongly justify the president's decision to authorize the killing of Awlaki in Yemen and the carrying out of that decision.

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.