A Predator Drone, shown above, is an unmanned aerial vehicle built by General Atomics
On September 30, 2011, suspected terrorist Anwar al-Awlaki was killed when two U.S. Predator drones fired Hellfire missiles at a car containing al-Awlaki and three other suspected al-Qaeda members. American officials said that the missile strike also killed Samir Khan, an American citizen of Pakistani origin. When I was first asked if I wanted to write an article about this story my initial thought was: NO. I did not want to touch a constitutional issue like the targeted killing of an American citizen, in a law school paper, with a ten-foot pole. Then I realized this is not about coming to conclusions, but having a discussion.
Anwar al-Awlaki was born in the United States to Yemeni parents. He returned to Yemen with his parents when he was seven and lived there for 11 years. When he returned to the U.S., he earned a B.S. in Civil Engineering from Colorado State University and an M.A. in Education Leadership from San Diego State University. He spent one summer of his college years training with the Afghan mujahedeen. His other interesting San Diego connection was that, although he is rumored to have hesitated to shake hands with women, he patronized prostitutes and was arrested in San Diego in both August 1996 and again in April 1997 for soliciting prostitutes.
Al-Awlaki’s Islamic education appears to have consisted of a few intermittent months with various scholars. Some puzzled Muslim scholars said they did not understand al‑Awlaki’s popularity, because despite the fact that he spoke fluent English and could therefore reach a large non-Arabic-speaking audience, he lacked formal Islamic training and study. While imprisoned in Yemen for kidnapping a Shiite teenager for ransom, al-Awlaki became influenced by the works of Sayyid Qutb, an originator of the contemporary “anti-Western Jihadist movement.”
Al-Awlaki was noted for appealing to young Muslim men with his lectures, especially in the U.S. and the U.K. Al-Awlaki was allegedly in contact with, trained, and preached to a number of al-Qaeda members and affiliates, including three of the 9/11 hijackers, suspected Fort Hood shooter Nidal Malik Hasan, and alleged “Christmas Day bomber” Umar Farouk Abdulmutallab.
Before spring finals last year Osama bin Laden was killed in Pakistan. More than one final exam included a bin Laden question. My section’s Constitutional Law final asked about the constitutionality of “assassinating” bin Laden. I thought I had blown the question after I turned in my final because I spent too much time on the idea that it was not an assassination at all.
In the bin Laden situation, and on our test, the word assassinate was not used anywhere in the SEALs orders. Even if bin Laden was on the “capture or kill” list, the SEALs were in his house making the decision on which outcome would be best. The amount of time they gave him to surrender might not have been long, but a word of advice: if the SEALs land in your yard, whether they have a right to be there or not, lay down on the floor face down, put your hands over your head, and wait for them to find you.
Combating terrorism, no matter what your feelings are on why the U.S. has been targeted, is a reality. With this reality comes a set of problems that will continue to be balanced against the rights and rules the U.S. holds dear. There does not seem to be a question that Osama bin Laden was a foreign enemy combatant in every sense of the word. However, Al-Awlaki’s situation was different in a number of ways.
First, as Americans we have decided that citizenship brings with it a set of rights. That is a big reason the immigration debate continues to rage on. There is no information saying that Al-Awlaki had given up his citizenship and it does not seem as though the government used any procedures to take it away. So, was he still due certain rights?
Second, Al-Awlaki was not killed by forces on the ground. I spent almost half my life in the Marines and could write a number of articles on how I think the members of the military have been treated over the past 10 years. I am all for anything that keeps our troops safe in combat and drones do that very effectively. However, this was not combat. This was a targeted killing. I am not making a judgment on the use of the drones. However, could the government use more transparent and developed procedures for putting U.S. citizens on a target list?
It is easy to hear what someone has done as a terrorist and think he deserves to die. Yet, it is likely that a number of people would have been outraged if Timothy McVeigh had made it to Canada after the Oklahoma City bombing and the President had taken him out with a drone, without a trial. There are burdens the U.S. bears at times because of the rules we have agreed to follow. That does not change even if these rules may seem out of step with how warfare has changed. In this case, however, even Yemen went through the steps of charging Al-Awlaki in absentia and finding him guilty before listing him as wanted dead or alive.
There are always security concerns in trying a terrorist, even if it is in absentia. These concerns can range from giving up sources of intelligence to the physical security of the courts and judges. Still, taking shortcuts on issues this important is not the proverbial “American Way.” Doing things the right way does have its problems as well, though. Al-Awlaki had proven hard to find. He was getting help from local groups in Yemen. The Yemenis had already raided a couple of towns and missed finding him. The drones that killed him were the second attempt this year alone. Should the U.S. risk missing a chance to kill such an influential terrorist to make sure his rights are protected?
After the New York Times reported Al-Awlaki was placed on the government’s “capture or kill” list, Al-Awlaki’s father filed a lawsuit. With the help of the Center for Constitutional Rights (CCR) and the American Civil Liberties Union (ACLU) he attempted to have his son’s name removed from the list. In an 83-page ruling, Judge John D. Bates dismissed the lawsuit, holding that the father did not have legal standing to bring the lawsuit, and that his claims were judicially unreviewable under the political-question doctrine, inasmuch as he was questioning a decision that the U.S. Constitution left to the political branches. Is this list really untouchable by any court? Many believe that killing Al-Awlaki amounted to summary execution without due process of law, which is guaranteed by the Constitution.
Don’t get me wrong. I do not doubt that Al-Awlaki was a very dangerous man. My stomach might even say that using drones was not wrong at all. However, my head tells me that if there is a slippery slope in restricting the speech of the members of Westboro Baptist Church, then the Al-Awlaki slope is not only slippery, but very steep as well. This can be a touchy subject, but it is important as well. This only scratches the surface of this issue and Al-Awlaki’s case. Is our safety more important than our rights? Let the discussions begin.
Disclaimer: I did not have a lot of time to write this article, so go easy on me. Please do not throw things. I must warn you: I know a number of Marines and SEALs and they are never far away.
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I am with you all the way. I am a recovering attorney and although I have not practiced law in 20 years I still read alot of appellate cases. After this incident I asked a very conservative friend of mine what was the difference was between this incident and the targeted killing of drug lords that have turned certain parts of our southern borders into near war zones. After much discussion our conclusion was there was little no difference. This is indeed a slippery slope and I am not comfortable with the direction.
It appears the one fact that is left out of many of these discussions is that Al-Awlaki was part of the command structure of a foreign enemy that has vowed to and is actively attempting to destroy our nation, hence the destination “enemy combatant.”
Additionally Mr. Al-Awlaki not only willingly left the Nation of his birth to join a Hostile Foreign organization but he also took an oath of fealty to a foreign group and part of that oath was to destroy the nation of his birth; this can be reasonably argued that when he swore fealty to the Al Queda Organization and it’s goals of destruction of our Nation he was at that time renouncing his Citizenship (there is precedence for this in (WWI and WWII where Americans left the USA to fight for belligerent Nations. )
Now as for Tim McVeigh, while he committed an act of Terrorism It was done internally as a way to promote a civil war. This is the important Difference: McVeigh was attempting to start a revolution whereas Al-Awlaki left the Nation and joined a Foreign Organization in an attempt to destroy it,
Finally; I find framing this as a 1st Amendment issue to be disingenuous, since the act was done not over his statements but for the fact that he was part of the active command structure of a hostile force. While what Fred Phelps says is in my opinion vile and should be ignored he is not in foreign lands making speeches to foreign recruits to attack our nation nor is he part of a foreign Organizations command structure that is actively engaged in attempting to destroy our nation. If anything this argument should be framed under the 14th Amendment to determine if Al-Awlaki had or had not renounced his Citizenship when he pledged fealty to Al Queeda and if so was his right to due process violated.
Ron, I think I listed his contacts with the 9/11 terrorists, the Fort Hood Shooter and the bomber formally known as the underwear bomber. I also had to reread the article because I did not really see how it was framed as a 1st Amendment issue, and I still don’t. However, one of the main things you bring up is that al-Awlaki’s message and intent were different than McVeigh’s. That sounds 1st Amendmentish to me. I also think you might be confusing my questions with my opinions. I purposely did not tell you what I think other than the fact that we, as Americans, have always considered citizenship to hold certain rights. So I ask, don’t you think that if it is a “fact” that a U.S. citizen is an enemy combatant there should be some burden of proof before we kill him with a missile? Some way to make sure we get it right? That just the fact that he holds U.S. citizenship does make a difference? If you answer no, or yes, to those questions then you have your answer, but you still don’t have mine. If this all gets you riled up then I think that is good. No one should feel ok with this either way. However, this is far from an academic debate.
Obama needs to be questioned extensively concerning al-Awlaki’s killing. But also for other issues such as fast and furious, bypassing congress, anti transparency etc. These are all questions of constitutionality. Obama is a constitutional professor. Did he study the constitution to determine the most insulting ways to violate it?
First, kudos to you, Charles, for taking on the topic. Prickly indeed! But so incredibly worth the discussion in a democracy.
Second, I must confess a great deal of sympathy with Ron above. I think there are numerous Constitutional questions here and the First Amendment is not where I would start. To use the simple 1L example, my right to free speech ends where it creates and real and imminent danger to other’s safety — I can’t scream “fire” in a crowded movie house, as it’s against the law and others might be hurt (e.g., a real and present danger and a compelling state interest) — so we shouldn’t be surprised that there are life-and-death consequences for someone who advocates the taking of innocent lives of Americans on American soil and abroad and actually succeeds in developing a following that carries out his plans.
Stan (the not-so-constitutional scholar) misses the boat completely here. I see the real tension as the long-standing issue of where Executive authority in our Constitution is permitted (or not) to override other Constitutional imperatives. This is the slippery slope on which we have been sliding for decades (and probably longer) as we struggle to have an effective executive branch, particularly on issues of national security, while providing for the constitutionally protected checks and balances of Congress (the War Powers Act), the Judiciary (judicial review), and the individual (individual rights, due process and equal protection). (I suspect for someone like Stan, the question just comes down to who happens to hold the Presidency at a given moment, rather than something as mind-bending as Constitutional principles.)
Unfortunately for Al-Awlaki, he fell into that nebulous category of “enemy combatant,” citizen or not, where the Executive authority has been interpreted as quite broad. I welcome the opportunities for Judicial review of decisions such as this (and Guantanamo detention, rendition, etc.), but they seem to be slow in coming, particularly as long as we continue to call our anti-terrorist efforts a “war.” I firmly believe, however, that many of the Executive decisions made during the past decade since 9/11, will be viewed uncharitably by judicial history in years to come.
I am still not sure why this is seen as a first amendment argument. I used the first amendment case just to talk about the “slippery slope”. You even talk about the same slippery slope in your response. If the slippery slope argument is used in first amendment cases, shouldn’t it also be used here where the stakes are higher. I am not saying this is a first amendment issue. Although, most of the time when al-Awlaki was mentioned, it was the fact that he was able to deliver his message in English which was pointed out as his major threat to the west. It seems obvious that it was his ties to actual terrorist actions which put him on the “capture or kill” list.