Not that I necessarily believe every accusation leveled at Anwar al-Awlaki in this Washington Post piece, but assuming most of it is accurate I can’t see much of a difference between what he has been doing and what Usama bin-Laden was doing in the lead-up to 9/11. The only difference is that al-Awlaki was an American citizen. And because he was an American citizen he presumably had some rights that bin-Laden did not. In the eyes of the administration he forfeited those rights. They killed him this morning with a predator drone strike somewhere in the hills of Yemen.
On the one hand, I can’t help but feel a sense of relief. He has been linked to several attacks and plots against the West, including in Canada. He was an inspiration for many more plots and attacks he was not directly involved in. He actively called for Muslims to attack American citizens, which does raise serious questions about whether we should honor his citizenship.
On the other hand, this is very problematic. An American citizen has been killed by the U.S. government without any judicial process. The evidence against him has not been tested in any court. Some of the evidence is available to the public, such as recordings of his sermons and videos he posted on the Internet. There’s no doubt that he incited violence against U.S. interests and innocent civilians. But the more damning evidence, such as his role in the Christmas bombing plot, is circumstantial and based on the say-so of our intelligence agencies.
Here’s my problem. Based on what the government says it knew, I can understand that they did not want to leave this man free to continue his activities. It’s our government’s responsibility to keep us safe, and this man was quite dangerous. I also understand that capturing him was impractical. It’s a highly unusual situation that our laws are not presently designed to address. I don’t know if a similar situation will ever present itself again, but we need to craft our laws in a way that can account for this type of situation so that there is some legal review of some sort before a U.S. citizen can be assassinated by his own government.
Because, let’s face it, without any legal process, the government could manufacture evidence against a U.S. citizen who is a harsh critic and who gives sermons that incite people against U.S. policies. We don’t know what the line is where the government can disregard a citizen’s rights, declare him an enemy of the state, and kill him. Even if we agree that al-Awlaki crossed it, we don’t know at what point he crossed it. And it’s not a simple question to answer.
Is the only reason it was permissible to kill him because it was not practicable to capture him? Can we codify that in law? Or, was it permissible to kill him because of things he said? If I lose my temper and call for the killing of some U.S. citizens, can my citizenship be stripped? Can the government drop a bomb on my house? Do I have less right to the courts if I’m living in Amsterdam instead of Pennsylvania? Shouldn’t there be a legal review for stripping people of their citizenship before they can be treated extrajudicially?
Remember that we are relying heavily on the government’s story here. It may be convincing in this case, but nothing prevents the government from lying or exaggerating or telling us things that would never stand up in court.
Congress should not just applaud this successful elimination of a deadly enemy. They should get to work figuring out a legal process that can account for a situation where a U.S. citizen is making war against us and cannot be captured and brought home for trial. I would advise some criterion be created for first stripping someone of their citizenship, and it should be a very high bar that must be met to the satisfaction of a panel of judges. Because, if we don’t create something like that, this action this morning will create a terrible precedent that can be abused by future administrations.
Clearly, the solution is some kind of death panel.
Yes, obviously it’s appalling that Republicans would applaud the legal execution of American citizens, but clearly Democrats should applaud the unconstitutional assassination of an American citizen.
I wonder if there were any US citizens fighting for the Nazis in WWII? If there were, I can’t imagine anyone here being too worried about them getting killed. Now al-Quaeda isn’t exactly a foreign army, but they are a terrorist organization that has declared was on the US, and we have declared war on them for better of worse. The War on Terror is a horrible construct but if it is a war, and if a US citizen joins the other side, then I guess they should expect to get shot at.
That’s more or less how I feel about it too.
clearskies, I know this isn’t your main point, but I want to respond to it anyway: “The War on Terror is a horrible construct but if it is a war, and if a US citizen joins the other side, then I guess they should expect to get shot at.” You’re right, the “War on Terror” is a horrible construct. Because a state cannot wage war against “terror”. War requires a military opponent (however well or poorly armed). Even worse, the “War on Terror” gives power to one’s opponents. All they have to do is occasionally set off a bomb in… Read more »
The Obama administration’s redefinition – we’re no longer fighting a War on Terror, but a war against a specific organization – is one of the more oft-overlooked, but extremely important, actions they’ve taken.
For exactly the reasons you explain, an amorphous “War on Terror” is a terrible idea.
Massappeal, I agree with your points about the war on terror. I would add that we need not have declared war on al quaeda in order to fight them, we could have treated them as a criminal organization like the Mafia and gone after them using the tools of the criminal justice system. There were reasons we didn’t do that, in particular we felt the need to root them out of Afghanistan. Still, was the cost (in terms of lives, money, international standing, etc) worth the result? I don’t think so, not even close. Nevertheless, given that we are… Read more »
Yes, but we need to be just as concerned about the possibility of abuse here as we are with this particular individual. We need safeguards that are not present currently.
Absolutely.
Remember when the right-wingers used to like to say “This is a different kind of war?” Well, they’re right – it is. For one thing, there is a much greater chance of misidentification, and we need policies that take that into account.
It’s pretty clear to me that the Obama administration did its homework here and went through a process that was appropriately systematic and careful in identifying this guy, but it would be good to know that there are standards in place to ensure that the next administration will follow similar procedures.
American citizens fighting for the other side have been killed in just about every one of our war.
Every single dead Confederate soldier was an American citizen.
That said, the covert nature of this particular war raises some very real questions. It will remain a fact that the decision about targeting in a war remains an executive decision, but Congress’s “rules for the conduct of land and naval forces” power certainly gives it the right to set up criteria and processes for the executive to follow.
It’s our government’s responsibility to keep us safe, and this man was quite dangerous.
Does anyone even know what the Oath of Office says? You know, the one President Obama took when he became President? Apparently, a lot of people either don’t know it, or forget it.
I’m curious what provision of the Constitution allows the assassination of US citizens. Deprivation of life without due process is a clear constitutional violation. There are lots of citizens who advocate violence against the US, from inside the US, and not only do we not assassinate them we don’t even arrest them unless they are caught trying to pull something.
Equating this to soldiers on the battlefield doesn’t fit.
Also, as an aside Confederate soldiers were citizens of the Confederate States of
America.
Well, the Constitution expressly forbid this, with a possible caveat in this case. Fifth Amendment No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be… Read more »
The Fifth Amendment has never applied to wartime enemies.
To say that it does is to say that we need to Mirandize enemies encountered on the battlefield – a silly straw man position that conservatives apply to liberals, and that liberals insist they have no intention of doing.
But if we say that wartime enemies overseas are covered by the 5th, then we do actually have to Mirandize them.
How often are wartime enemies also American citizens?
All I want is clarity in the law so we know there is some standard for declaring someone stripped of their 5th amendment protections.
Seldom. Very seldom.
I agree that some black-letter law would be a good idea here. If you read about the process the administration went through, it was a reasonable process, but I’d like some assurance that such a process will continue to be used in the future.
We don’t know the process as they claimed it’s all one big state secret.
There’s a good write-up about him and his case on Wikipedia. On July 16, the U.S. Treasury Department added him to its list of Specially Designated Global Terrorists.[6] As a result, any U.S. bank accounts he may have will be frozen, Americans are forbidden from doing business with him, and he is banned from traveling to the U.S.[6] Stuart Levey, Under Secretary of the Treasury for Terrorism and Financial Intelligence, said al-Awlaki: has proven that he is extraordinarily dangerous, committed to carrying out deadly attacks on Americans and others worldwide … [and] has involved himself in every aspect of the… Read more »
what’s the basis for making the citizen/non-citizen distinction when you are talking about the due process clause of the fifth amendment? the constitution says “no person shall be… deprived of life… without due process of law” it doesn’t say “no citizen.”
the constitution refers to “citizens” in some provisions and “persons” in others. it’s completely clear that the due process clause applies to both citizens and non-citizens. that’s why we still give foreigners trials when they are accused of crimes in the u.s.
the basis is that the guy was trying to kill us. The ONLY reason we would hesitate to kill him in self-defense is because he’s a citizen. We don’t extend Fifth Amendment protections to foreigners who are trying to kill us or are at war with us.
but why does citizenship make any difference?
put another way: for people claiming that assassination of u.s. citizens are prohibited by fifth amendment, i don’t see why that would only bar the assassination of a citizen.
if assassinating al-awlaki is unconstitutional under the due process clause of the fifth amendment, so is assassinating osama bin laden. but equally so, if assassinating osama bin laden is constitutional, than so is assassinating you.
you’re the lawyer, but I think you are being too literal. It’s clear that the Fifth Amendment didn’t contemplate a situation like this. But it did say that people could be executed without due process/Grand Jury if they served in our military. That could an officer shooting a fleeing infantryman or it could hanging Benedict Arnold. Yet, even if the amendment doesn’t address it frontally, I think that you can safely assume that the intent was that a citizen who betrays his own country in a combat situation is not protected by the Fifth Amendment. And certainly… Read more »
There is an implicit distinction here between citizens and foreigners in combat/military situations. no, in combat or military situations there is a distinction between friend/ally and foe. i don’t see why citizenship matters in those situations either. people keep bringing up awlaki’s citizenship like it is significant. even glenn greenwald, a lawyer, cites the fifth amendment and then pretends that for some reason where he was born is a determining factor whether he gets the protection of due process. never mind that we regularly extend due process to aliens who are charged with crimes in the u.s. i’m not trying… Read more »
For the same reason they keep using the term “assassination.”
For emotional effect.
I don’t think you are right about where the distinction lies, unless you want to stretch the definition of foe. The Fifth Amendment talks about persons, meaning that no distinction is made between citizens and foreigners. But then it talks about citizens who are serving in our armed forces, who are not afforded Fifth Amendment protections. That’s the only literal distinction, and there are no foes involved. However, we can infer that a citizen who doesn’t do his duty or becomes a foe can be executed and therefore so can someone who is actually fighting us, even if… Read more »
But then it talks about citizens who are serving in our armed forces, who are not afforded Fifth Amendment protections. … The reason his citizenship matters is because the Fifth Amendment divides citizens into those who serve in the armed forces and those who do not. not really. the fifth amendment doesn’t talk about citizenship in any way whatsoever. the word “citizen” doesn’t appear in the amendment. you seem to be assuming that by referring to members of the armed forces, that must automatically mean a citizen, but that’s not really the case. you don’t have to be a u.s.… Read more »
.
Killed in same drone attack, editor of Jihad magazine Inspire.
"But I will not let myself be reduced to silence."You can certainly make the case that when Congress declares war, it provides “due process of law”. Skipping that declaration of war step is rather like skipping the trial and going right to the execution. I’m sure the Red Queen (“Sentence first! Trial after!”) would approve. But at least for a ‘traditional’ war, there’s a more-or-less well defined battlefield. If you don’t want to be a combatant, get the hell out PDQ. So if al-Awlaki was killed in Iraq or Afganistan (or in the tribal areas of Pakistan), there shouldn’t be any legal question about killing him. But, last I… Read more »
The AUMF gives a rather broad definition of the battlefield and it has spread to Yemen since we have been operating their for some time with Yemen government approval.
makes it clear that due process rights are not removed by the AUMF.
Hamdi was a case involving a detainee in custody. Yes, detainees in custody have 5th Amendment rights.
Enemy combatants who are at large do not, and never have. The Army gets to shoot at them.
But, last I heard, we’re not at war with Yemen, in fact we’re working together.
We weren’t at war with Belgium in the 1940s, but we shot an awful lot of German soldiers there. That’s because we were at war with the Germans, and they were in Belgium.
Same thing here. 1) That’s where the enemy was located, and 2) that’s where the enemy was working to wage his war.
says person, not citizen.
yes, it does. But it also talks about military situations.
Think about it.
They made an exception for members of armed forces. Do you think the same exception doesn’t apply to the people they’re fighting? That would be ridiculous. They try to shoot us and we try to arrest them and put them on trial.
The question hinges on a number of factors, but it comes down to how do we define war and what kind of proof/judicial review do we want to have?
with you. The limitation implied isn’t citizen vs non-citizen, its wartime vs peace.
I think georgraphy (aka jurisdiction) is relevent.
Using the word “assassination” to describe a military action that kills a wartime enemy is just an attempt to impute certain facts to the situation that don’t actually apply. The “due process” requirements of civilian criminal law have never, ever applied to wartime enemies who are not in custody. They have never been held to apply by any court, and our government has never acted as if they do. If you think that “advocating” is the only thing Alawki did, you’re not up on the case. American citizens who are fighting for an enemy with whom we are at war… Read more »
You beat me to it. Good comment. He was a part of an organization that was and is waging an armed conflict against the US, and was active in that war. That it is an non-state does not make it any less “war”. The laws of war adjust rather rapidly to the facts on the ground.
There is no war. War is between states. War is declared by Congress. I’m glad he’s dead, but this was a giant step towards allowing the US President to proscribe anyone without judicial review.
BTW, even in war, according to treaties that we have signed, targeting individual leaders is forbidden.
Al Qaeda declared “war” against us in 1997. All we’re doing is taking them at their terms.
As for the Fifth Amendment, it clearly does not protect people from being killed while in the commission of a crime. You can argue that al-Awlaki was effectively engaged in criminal activities at all times, as he was advocating violence against the US.
If he had marched up to the embassy in Yemen and turned himself in, different story.
Plus, by the logic expressed here, Abraham Lincoln plotted the extrajudicial killings of hundreds of thousands of Americans.
Being killed in combat is different from being the target of a death squad.
It has never been the case in either American or international law that a state can only war against another state. It has always been the case that a state can use its war powers to go against non-state actors, going back to the days of barbarians raiding the proto-states of the Fertile Crescent. Legally, the September 18, 2001 AUMF – you know, the one passed by Congress – is a war declaration, whether you personally feel it was a good idea or not. A legal state of war exists. Period, full stop. It is recognized under our domestic law… Read more »
Have you not heard of the individual targeting of Admiral Yamamoto during the Pacific War?
Yes, that was illegal as well.
Also Yamamoto was not an American citizen. He was a military man flying in a military plane in a combat zone in a declared war. Both Japan and the US Congress had issued formal declarations of war.
Well said, BooMan.
There are a whole lot of issues resulting from the 100-year erosion of the Bill of Rights that Congress must address. Not just the actions of the last decade.
The idea that the person in question is entitled to the full protection of the US Constitution for crimes commited outside of US Jurisdiction stikes me as nonsense. If a crime occurs within the US, prosecutors have a number of constitutional ways to gather evidence, including compelling testimony. None of that exists outside of the US. If you argue that the same process should apply, you should accept that it is unlikely that we will catch them. But we need some sort of independent review before something like this is lauched against a US Citizen – perhaps a review like… Read more »
I wonder, isn’t Adam whatever-his-name-is, the American Taliban — is he on the target list too? Isn’t he an American citizen?
I would advise some criterion be created for first stripping someone of their citizenship, and it should be a very high bar that must be met to the satisfaction of a panel of judges. This has already been before the USSC, a couple of decades ago, and if a person was born in the USA, they cannot be stripped of citizenship. In fact, it’s not trivial for them to renounce citizenship. 14th Amendment. Naturalized citizens HAVE been stripped of citizenship, but only on the basis that they lied in their naturalization application. This is not a can of worms that… Read more »
. Anwar al-Awlaki made an abrupt change from preaching the Muslim faith to his followers to advocating attacks on the US and it’s citizens. He’s accused of being an operations officer leading AQAP in Yemen, Saudi Arabia and Somalia. The al-Awlaki clan has suffered great losses by earlier drone attacks killing 120 Yemeni. His mix of scripture and vitriol has helped lure young Muslims into a dozen plots. He cheered on the Fort Hood gunman and had a role in prompting the attempted airliner bombing on Dec. 25, intelligence officials say. And last week, Faisal Shahzad, who is charged in… Read more »
pfft. who needs rationality, when we have glibertarians like Greenwald babbling about ZOMGOBAMAISADICTATOR OHNOZ!!!!!
Thought experiment. Country X, whom is not on friendly terms with Country Y, is being threatened by some influential, but slightly crazy, religious leader in Country Y who is actively funding groups in Country X that are attempting a violent overthrow of Country X. Country X complains to the government of Country Y but no action is taken, possibly because the religious leader has very high up connections in the Country Y power structure. Is Country X justified in launching a bombing attack inside Country Y in an attempt to kill right wing crazy? Now try substituting the… Read more »
“Justified” is too vague. Are you talking about legality? Morality?
Also too vague: your example. The details matter a great deal. Any of the actions you describe could be “justified,” depending on the actual facts of the matter, or not be.
For instance, why do you ask about the death toll from the response being in the thousands, but not about the death toll from the terrorism?
Both of those details are quite important in sussing out the morality of it all. Proportionality is a very significant consideration in judging the morality of using force.
As another member of the legions of armchair generals who maybe second guessing the CIA directed Drone strike that killed al-Awlaki in Yemen, I would offer my following opinion. Not being privy to the actual details of the attack, I would suggest that the actual fring of the target missles WAS NOT PLANNED IN ADVANCE SPECIFICALLY to kill al-Awlaki. The scenario in all likelihood was this, an predator Drone flight mission was scheduled in response to some credible information concerning the possible AQAP fighter vehicles moving through the hills of Yemen at some specified time. Predators initially are monitoring/observation platforms… Read more »
But then it talks about citizens who are serving in our armed forces, who are not afforded Fifth Amendment protections. … The reason his citizenship matters is because the Fifth Amendment divides citizens into those who serve in the armed forces and those who do not. not really. the fifth amendment doesn’t talk about citizenship in any way whatsoever. the word “citizen” doesn’t appear in the amendment. you seem to be assuming that by referring to members of the armed forces, that must automatically mean a citizen, but that’s not really the case. you don’t have to be a u.s.… Read more »
i meant to post this comment elsewhere on the thread. i just reposted it above in the right place. please ignore this one.