Killing al-Awlaki: Was It Legal? Was It Right?

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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