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.
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