A DISCUSSION OF LAW AND JOURNALISM

Government Killing of Anwar al-Awlaki was Constitutional

Anwar-al-Awlaki_1555336c

By Lawrence Roarke

Anwar al-Awlaki, a United States citizen and imam, preached to and interacted with three men who went on to become hijackers on September 11, 2001. Mr. al-Awlaki was also “chief of external operations” in Yemen, and played a significant operational role in both the attempted attack on a U.S. airliner in December 2009, and the plot to detonate explosives aboard a U.S. cargo aircraft in October 2010.  In Yemen, on September 30, a United States drone missile killed Mr. al-Awlaki.

The media has reported extensively on the drone strike itself, as well as the renewal of a fiery legal debate about whether U.S. law allows the government to target and kill an American citizen abroad. The ACLU has argued that the government killing of Mr. al-Awlaki violates the Fifth Amendment of the Constitution, which guarantees due process for U.S. citizens. In simple terms, the ACLU argues that all American citizens are entitled to an arrest and a trial before they may be sentenced to death. The ACLU feels that the drone attack denied these rights to Mr. al-Awlaki. LASIS is itching to take part in this national debate. Did the United States government have the legal authority to target and kill American citizen Mr. al-Awlaki? This author believes so.  

The ACLU makes multiple compelling arguments but fails to recognize that our government, engaged in conflict, and acting in self-defense, is never required to provide its citizens with legal process before killing them. This is a simple and general principle that we see in practice every day. For example, on April 20, police shot and killed a fugitive who was facing two charges of attempted murder. And earlier this month, in two separate incidents, the California police killed two U.S. citizens. Although these Americans were not tried, their killings were met with silence from the ACLU. To be fair, the ACLU could argue that these police killings were different from the government targeting of Mr. al-Awlaki because the former was done in the heat of battle, in the presence of an imminent threat of death. And had U.S. forces killed Mr. al-Awlaki on an actual battlefield, in the presence of an imminent threat of death, the government would have had the right to kill him.  But what the ACLU doesn’t seem to understand is that Mr. al-Awlaki posed a much more dangerous and imminent threat to Americans, than the citizens killed by police. Mr. al-Awlaki’s ability to propagandize, combined with overwhelming evidence linking him to past and potential terror attacks, made him a threat to life that was concrete, specific and imminent.

No one is saying that Mr. al-Awlaki should have been killed before an attempt to arrest him. In fact the United States would have arrested Mr. al-Awlaki, but he was deliberately hiding in Yemen to avoid being captured. Of course it would be ideal if the U.S. could walk into Yemen, knock on Mr. al-Awlaki’s door, and ask him to show up to a court hearing. But the government could not arrest Mr. al-Awlaki without putting our agents’ lives in danger.

The Obama administration could have avoided this problem entirely had it revoked Mr. al-Awlaki’s United States citizenship. Under Section 349(a) of the Immigration and Nationality Act, a citizen of the United States may be stripped of his citizenship when he intends to relinquish United States nationality, and commits any act of treason, or bears arms against, the United States. By any definition, Mr. al-Awlaki was violently traitorous to the United States. And while an announcement of a revocation of citizenship sounds inconsequential, it is a matter of law that had the Obama administration made this announcement there would be no legal debate today about his having been killed.

 

The ACLU has argued that the assassination of Mr. al-Awlaki should have been based on solid evidence presented that the president should have first presented to the public and the courts. They claim that the president should articulate the legal standard that needs to be met before targeting a citizen suspected of terrorist ties.

Republican Presidential candidate Ron Paul agrees. Shortly after the drone strike, Mr. Paul told reporters, “If the American people accept this blindly and casually… we now have an accepted practice of the president assassinating people who he thinks are bad guys.”

This author is with the ACLU and Mr. Paul on this one. The president should meet a legal standard before the killing of a United States citizen. But the argument is moot when it comes to the targeting of Mr. al-Awlaki. Based on indisputable evidence already public, Mr. al-Awlaki was a high-level leader of enemy forces who had plotted, and was plotting, to kill Americans.

There is the legitimate question of how much leeway a president has to act in such cases.  Under Article II of the Constitution, the president is the Commander-in-Chief of the Armed Forces of the United States.  Ever since the 1936 Supreme Court case United States v. Curtiss-Wright, the president’s designation as Commander-in-Chief has been interpreted to allow him to act with essentially a free hand in foreign affairs. In 1952, the U.S. Supreme Court’s monumental decision in Youngstown Sheet & Tube Co. v. Sawyer held that the president’s expansive powers as Commander-in-Chief of the Armed Forces of the United States increases when congressional intent supports him. After September 11, 2001, Congress passed the 2001 Authorization for Use of Military Force (AUMF). The Act authorized the president to use all “necessary and appropriate force” against al-Qaeda and its associated forces. If killing an enemy combatant is not “necessary” then I don’t know what is.

In 2004’s Hamdi v. Rumsfeld, the Supreme Court stated that the government has a strong interest in being free to wage a war without the distraction of litigation that could reveal military operations and out national defense secrets. And as recent as September 2011, intelligence was gathered proving that al-Qaeda has not abandoned its intent to attack the United States.

So, with all due respect to the ACLU:  Take note.  There’s no question that the president still has the constitutional and legal authority to use lethal force against those who plan to attack Americans, regardless of their citizenship.

Comments

5 Comments »

5 Responses

  1. Pam Shields says:

    I read the first piece by Mr. Smith and thought he was right. And now I read this and am confused. I am sending both to my friend and we will debate after our weekend jog!

  2. James C Desmond says:

    Accepting all of your reasons for deeming this “constitutional,” I have just one question: What is the standard of proof that the President (or the Pentagon “Death Committee” to whom he may delegate such assasinational power) should use? This target was an easy call — tape and plenty of other evidence that he was a traitorous combatant.

    But what about the less conspicuous, more doubtful cases? May the Death Committee take the word of a CIA agent or operative? Contractor? Should it demand evidence beyond a reasonable doubt or just whatever seems “reasonably convincing”?

    Remember what happened when “W” took the CIA Director’s “WMD word” in deciding to invade Iraq.

    In short, this enemy identification/extermination process needs to be further thought out. Note that the U.S. Court system has been thinking out the guilt-determination and death-penalty (due) process for centuries. It does so precisely because we license others to kill in our name. Using the power to the state (our consent) to kill someone beckons no less.

    Alas, it’s a conundrum. I was the first to criticize U.S. Intelligence for failing to illuminate, and extirpate, the jihadist assholes who attacked us on 9/11. And I’d be the first to gun down any man about to attack me or my neighbors merely because his deity informed him that we were his infidels and thus must be exterminated.

    Hence, this is a tough call. Good essay, though.

  3. [...] arguments from both sides, check out “The President’s License to Kill,”and “Government Killing of Anwar al-Awlaki was Constitutional.”Are we headed towards a surveillance state?  In a few years, will drones flying overhead be a [...]

  4. Wal Man says:

    You’re right, if Awlaki was killed in the heat of battle, the U.S. does have a right to kill him. But this was not the case. I don’t see this as a 5th Amendment case but as a 6th Amendment case. He was a long known combatant and could have been, at least, tried in absentia but the State could not be bothered. Revocation of Awlaki’s citizenship would also have served. But he was killed without the due process the Constitution guarantees to all citizens without caveat. The Rosenbergs got a better shake.

    It does not matter what kind of person Awlaki was. Good behavior, like nice speech, needs no Constituional protections and I always find this “he was a bad guy” arguement stupid at best. Of COURSE he was a bad guy! The Constitution makes no exception for “bad” people.

    No, the killing of Anwar Al-Awlaki was certainly not Constitutional.

  5. […] had tried him in absentia. and the process he got from the white house was much more thorough http://nylssites.wpengine.com/lasisblog/2011/10/16/…onstitutional/ Reply With […]

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