Hamdi v. Rumsfeld, 542 U.S. 507, 597 (2004) (Thomas, J., dissenting) (suggesting that the plurality would not demand additional process in a situation where US citizens are targeted and killed in Yemen missile strike)
A Just Act of War
By JACK L. GOLDSMITH, September 30, 2011
Santa
Fe, N.M.
ON
Friday, an American drone flying over northern Yemen killed Anwar al-Awlaki, a
leader of Al Qaeda in the Arabian Peninsula — a Qaeda affiliate. Mr. Awlaki
helped support an attempted attack on a Detroit-bound flight in 2009 and had
been linked to other attempted attacks in the United States.
Drone
strikes against terrorists outside of so-called hot battlefields
like Afghanistan have become commonplace during the Obama presidency, and have
reportedly decimated the leadership of Al Qaeda and its affiliates. What made
this strike unusual, however, was that Mr. Awlaki was an American citizen,
having been born in New Mexico.
This
fateful new step in our ever-expanding war against terrorists — intentionally
killing an American citizen — is fraught with the danger of executive
overreach or mistakes. But the Obama administration has done an
admirable job to date of balancing these potential dangers against
security imperatives.
The
United States did not claim the power to kill Mr. Awlaki because of his
political views or because he was a mere member of a Qaeda affiliate against
which Congress had authorized the use of force. It claimed the power
to kill him, rather, because he was an operational leader of a Qaeda
affiliate that had been involved in terrorist plots on American soil and
because he was hiding in a country that lacked the capacity to
arrest him and bring him to justice.
Nor
does the killing of Mr. Awlaki mean, as Glenn Greenwald charged in
Salon, that “due-process-free assassination of U.S. citizens is now reality.”
An attack on an enemy soldier during war is not an assassination. During World
War II, the United States targeted and killed Adm. Isoroku Yamamoto,
the architect of the Japanese attack on Pearl Harbor. Moreover, the United
States knew there were many American citizens in the German Army during
World War II, but it did not alter its bombing practices as a result.
And
while no court approved the killing of Mr. Awlaki, it is not accurate to say
that he was targeted without due process. What due process requires
depends on context. In a lawsuit brought last year that sought to
prevent the government from targeting Mr. Awlaki, a federal judge ruled that in
wartime the Constitution left it to the president and Congress, not the courts,
to decide military targeting issues.
Even
with this ruling, there is an understandable concern about the president’s
making a decision to kill an American citizen. This is why the Obama
administration has gone to unusual lengths, consistent with the need to protect
intelligence, to explain the basis for and limits on its actions. Mr. Obama’s
senior counterterrorism adviser, John O. Brennan, made clear in a recent speech that,
outside traditional battlefields, the United States targets only individuals
who threaten American security. Moreover, there is an extraordinary process
inside the government to ensure that this standard is met.
Before
someone like Mr. Awlaki is targeted, multiple intelligence sources support the
conclusion that he is a dangerous threat, top lawyers from many agencies
scrutinize the action, policy makers at the highest levels of government
approve the action after assessing its legal and political risks, and the
Congressional intelligence committees are informed about the intelligence
community’s role in the operations.
It
is true that these internal targeting
procedures gave Mr. Awlaki less due process than he would have received
from a court. And these procedures are no guarantee against mistakes (though
judicial process provides no such guarantee either).
That
said, these procedures are wholly unprecedented in war, and they exceed
anything the law requires. The caution inherent in this internal process is
appropriate to guard against mistaken or imprudent actions when targeting
individuals who have the power to wreak havoc on America while hiding among
civilians in faraway places.
Such
a cautious approach is especially appropriate when an American citizen is
targeted. The president has a duty to keep the country safe. So far, it
appears, the Obama administration is exercising this duty lawfully and with
caution. Such caution, however, does not guarantee legitimacy at home or
abroad. There are relatively few complaints in American society about the drone
program, but drones are becoming increasingly controversial outside the United
States on the ground that they violate international law.
The
Obama administration has tried to explain the basis for its actions under
international law just as it has under domestic law. But its international law
arguments are more controversial. The administration claims that strikes in
places like Yemen are consistent with the United Nations charter because the
other country consents to them or is unable or unwilling to check the
terrorist threat, thereby bringing America’s right to self-defense into
play. Moreover, the White House argues that such strikes comply with
international law-of-war duties to distinguish civilians from attack and use
only proportionate force.
These
international-law arguments are unconvincing to those who deny the possibility
of a war in many nations against nonstate actors, and who are deeply worried
about the asymmetrical power that drones possess — precluding, as they do, the
need to put American soldiers at risk. Drone critics are increasingly
mobilizing forces — at the United Nations, through human rights advocacy and
litigation, and in other arenas — to attack the American drone program and make
it more costly to use.
This
campaign will only gain steam after today’s strike in Yemen. The Obama
administration cannot afford to ignore these efforts, but it also cannot give
in to them.
It
can perhaps release a bit more information about the basis for its targeted
strikes. It is doubtful, however, that more transparency or more elaborate
legal arguments will change many minds, since the goal of drone critics is to
end their use altogether (outside of Afghanistan).
While
the administration must continue to manage its critics, it cannot afford to
forgo using drones, which are an accurate, successful and cost-effective
counterterrorism tool whose value will only grow as the United States withdraws
its troops from Afghanistan and Iraq.
Jack
L. Goldsmith, a former assistant attorney general in the George W. Bush
administration, teaches at Harvard Law School, serves on the Hoover Institution
Task Force on National Security and Law and is the author of “The Terror
Presidency.”
An Illegal and Counterproductive Assassination
By YASIR QADHI , October 1, 2011
Yasir Qadhi, an American
Muslim cleric, is a doctoral candidate in the Department of Religious Studies
at Yale. He blogs at muslimmatters.org.
Memphis
ANWAR AL-AWLAKI, the
Yemeni-American cleric who was killed Friday in a C.I.A. drone attack in
Yemen, appears to be the first United States citizen that our government has
publicly targeted for assassination.
The
accusations against him were very serious, but as a citizen, he
deserved a fair trial and the chance to face his accusers in a court of
law. Whether he deserved any punishment for his speech was a decision that
a jury should have made, not the executive branch of our government. The
killing of this American citizen is not only unconstitutional, but hypocritical
and counterproductive.
The
assassination is unconstitutional because the Fifth Amendment specifies
that no person may “be deprived of life, liberty, or property, without due
process of law.” A group of policy makers unilaterally deciding that a
particular citizen needs to be targeted is not, by any stretch of the
imagination, due process.
The
assassination is hypocritical because America routinely criticizes (and
justifiably so) such extrajudicial assassinations when they occur at the hands
of another government. We most certainly don’t approve the regimes of
Syria or Iran eliminating those whom they deem to be traitors. In fact,
Al Qaeda’s own justifications for murder stem from the notion that its members
are qualified to be the judge, jury and executioner of those whom they view as
enemies. America’s moral authority is undermined if we criticize in others what
we do ourselves. It only reinforces the stereotype that the United States has
very little concern for its own principles. Even Nazi war criminals got their
day in court, at Nuremburg.
It
is ironic to note that those who have actually attempted terrorist attacks
on American soil and been caught were read their Miranda rights and went to
trial, even though some were not United States citizens. Yet Mr. Awlaki,
who has never been accused of himself directly attempting an attack, was not
given this chance.
Lastly,
the assassination is counterproductive because it feeds into the martyr
mythology that makes Al Qaeda’s narrative so different from that of most other
terrorist groups.
If
our policy makers studied history, they would realize that Sayyid Qutb, a
founder of radical Islam, while popular in his life, only achieved his
legendary status after the Nasser regime in Egypt had him executed, in 1966.
Instantly, his books became (and remain) best sellers. Killing people doesn’t
make their ideas go away.
Mr.
Awlaki was born in New Mexico in 1971 while his father was pursuing graduate
studies. Though his parents returned to Yemen when he was seven, he later
returned to the United States to pursue degrees in engineering and education.
Eventually, he became an imam, or leader, of a mosque in California and later
in Virginia. During these years, it is alleged that he met multiple times with
at least three of the 9/11 hijackers. But for many American Muslims, he was
only known for one thing: the telling of stories from the Koran. He lectured
about the lives of the prophets of God, drawing from traditional Islamic
sources (and sometimes even Biblical ones).
His
captivating lecture style and copious quotations from classical sources made
him extremely popular, especially among American Muslim youth. During these
pre-9/11 years, these lectures, still available online, became some of the
hottest-selling items at some Islamic conferences across America. At this
stage, he was not publicly associated with any radical views. However, after
9/11, he adopted a more adversarial and anti-American tone, eventually moving
back to Yemen. He was jailed for two years (and rumored to have been tortured).
It
was only after his release that he publicly began supporting Al Qaeda and
issuing messages calling for attacks upon the United States. It was alleged
that he came into contact with or inspired a number of people to attempt
terrorist activities: Maj. Nidal Malik Hasan, the Army psychiatrist accused in
the 2009 killings in Fort Hood, Tex.; Umar Farouk Abdulmuttalib, accused of
trying to set off a bomb hidden in his underwear on a 2009 flight to Detroit;
and Faisal Shahzad, who tried to blow up a car in Times Square last year.
Mr.
Awlaki’s ideas were dangerous. His message that one cannot be a good Muslim and
an American at the same time was insulting to nearly all American Muslims. His
views about the permissibility of killing Americans indiscriminately were completely
at odds with those of mainstream Muslim clerics around the world. He needed
to be refuted. And that is why many people, myself included, were extremely
vocal in doing just that.
Mr.
Awlaki needed to be challenged, not assassinated. By killing him,
America has once again blurred the lines between its own tactics and the
tactics of its enemies. In silencing Mr. Awlaki’s voice, not only did America
fail to live up to its ideals, but it gave Mr. Awlaki’s dangerous message a
life and power of its own. And these two facts make the job of refuting that
message now even more difficult.
A
Targeted killing.
International
Herald Tribune
October
13, 2011 Thursday
President
Obama said Mr. Awlaki, a radical Muslim cleric, had taken ''the lead role in
planning and directing the efforts to murder innocent Americans.'' Officials
have said Mr. Awlaki's role went beyond inspiration into operational
planning of attacks, though they have not supplied proof. If the
White House would release the evidence it has to back up these claims, it would
have a better chance of justifying the cleric's death.
The
memo, prepared by two Justice Department lawyers, said Mr. Awlaki could be
killed because he was taking part in the war between the United States and Al
Qaeda and posed a significant threat to Americans, but it stopped
short of analyzing the quality of the evidence. It said joining
an enemy force deprived him of a citizen's due process rights, citing several
Supreme Court rulings that put the protection of innocent lives above the risk
of possible death of a suspect.
Secret U.S. Memo Made Legal Case to Kill a Citizen
By CHARLIE SAVAGE , October 8,
2011
WASHINGTON
— The Obama administration’s secret legal memorandum that opened the door to
the killing of Anwar al-Awlaki, the
American-born radical Muslim cleric hiding in Yemen, found that it would
be lawful only if it were not feasible to take him alive, according to people
who have read the document.
The
memo, written last year, followed months of extensive interagency deliberations
and offers a glimpse into the legal debate that led to one of the most
significant decisions made by President Obama — to move
ahead with the killing of an American citizen without a trial.
The
secret document provided the justification for acting despite an executive
order banning assassinations, a federal law against murder, protections in the
Bill of Rights and various strictures of the international laws of war,
according to people familiar with the analysis. The memo, however, was narrowly
drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new
legal doctrine to permit the targeted killing of any Americans believed to pose
a terrorist threat.
The
Obama administration has refused to acknowledge or discuss its role in the
drone strike that killed Mr. Awlaki last month and that technically remains a
covert operation. The government has also resisted growing calls that it provide a detailed public
explanation of why officials deemed it lawful to kill an American citizen,
setting a precedent that scholars, rights activists and others say has raised
concerns about the rule of law and civil liberties.
But
the document that laid out the administration’s justification — a roughly
50-page memorandum by the Justice Department’s Office of Legal Counsel,
completed around June 2010 — was described on the condition of anonymity by
people who have read it.
The legal
analysis, in essence, concluded that Mr. Awlaki
could be legally killed, if it was not feasible to capture him, because
intelligence agencies said he was taking part in the war between the United
States and Al Qaeda and posed a significant threat to Americans, as well as
because Yemeni authorities were unable or unwilling to stop him.
The
memorandum, which was written more than a year before Mr. Awlaki was killed,
does not independently analyze the quality of the evidence against him.
The
administration did not respond to requests for comment on this article.
The
deliberations to craft the memo included meetings in the White House Situation
Room involving top lawyers for the Pentagon, State Department, National
Security Council and intelligence agencies.
It
was principally drafted by David Barron and Martin Lederman, who
were both lawyers in the Office of Legal Counsel at the time, and was signed by
Mr. Barron. The office may have given oral approval for an attack on Mr. Awlaki
before completing its detailed memorandum. Several news reports before June 2010 quoted
anonymous counterterrorism officials as saying that Mr. Awlaki had been placed
on a kill-or-capture list around the time of the attempted bombing of a
Detroit-bound airliner on Dec. 25, 2009. Mr. Awlaki was accused of helping to recruit
the attacker for that operation.
Mr.
Awlaki, who was born in New Mexico, was also accused of playing a role in a failed
plot to bomb two cargo planes last year, part of a pattern of activities that
counterterrorism officials have said showed that he had evolved from merely
being a propagandist — in sermons justifying violence by Muslims against the
United States — to playing an operational role in Al Qaeda in the
Arabian Peninsula’s continuing efforts to carry out terrorist attacks.
Other
assertions about Mr. Awlaki included that he was a leader of the group, which
had become a “cobelligerent” with Al Qaeda, and he was pushing it to focus on
trying to attack the United States again. The lawyers were also told that
capturing him alive among hostile armed allies might not be feasible if and
when he were located.
Based
on those premises, the Justice Department concluded that Mr. Awlaki was covered
by the authorization to use military force against Al Qaeda that Congress
enacted shortly after the terrorist attacks of Sept. 11, 2001 — meaning that he
was a lawful target in the armed conflict unless some other legal prohibition
trumped that authority.
It
then considered possible obstacles and rejected each in turn.
Among
them was an executive order that bans assassinations. That order, the
lawyers found, blocked unlawful killings of political leaders outside of war,
but not the killing of a lawful target in an armed conflict.
A federal statute that prohibits Americans from
murdering other Americans abroad, the lawyers wrote, did not apply either, because
it is not “murder” to kill a wartime enemy in compliance with the laws of war.
But
that raised another pressing question: would it comply with the laws of war if the
drone operator who fired the missile was a Central
Intelligence Agency official, who, unlike a soldier, wore no
uniform? The memorandum concluded that such a case would not be a war crime,
although the operator might be in theoretical jeopardy of being prosecuted in a
Yemeni court for violating Yemen’s domestic laws against murder, a highly
unlikely possibility.
DO – CIA is
technically speaking civilian. DPHing is not a violation of law of armed
conflict (LOAC). Instead, CIA is not entitled to POW status (not protected
under LOAC)
Then
there was the Bill of Rights:
the Fourth Amendment’s guarantee that a “person” cannot
be seized by the government unreasonably, and the Fifth Amendment’s guarantee that the government may
not deprive a person of life “without due process of law.”
The
memo concluded that what was reasonable, and the process that was due, was
different for Mr. Awlaki than for an ordinary criminal. It cited court cases
allowing American citizens who had joined an enemy’s forces to be detained or prosecuted in a military court just like
noncitizen enemies.
It
also cited several other Supreme Court precedents, like a 2007
case involving a high-speed chase and a 1985
case involving the shooting of a fleeing suspect, finding that it was
constitutional for the police to take actions that put a suspect in serious
risk of death in order to curtail an imminent risk to innocent people.
The
document’s authors argued that “imminent” risks could include those by an enemy
leader who is in the business of attacking the United States whenever possible,
even if he is not in the midst of launching an attack at the precise moment he
is located.
There
remained, however, the question of whether — when the target is known to be a
citizen — it was permissible to kill him if capturing him instead were a feasible way of suppressing the
threat.
Killed
in the strike alongside Mr. Awlaki was another American citizen, Samir Khan,
who had produced a magazine for Al Qaeda in the Arabian Peninsula promoting
terrorism. He was apparently not on the targeting list, making his death collateral damage. His family
has issued a statement citing the Fifth Amendment and asking whether it was
necessary for the government to have “assassinated two of its citizens.”
“Was
this style of execution the only solution?” the Khan family asked in its
statement. “Why couldn’t there have been a capture and trial?”
Last
month, President Obama’s top counterterrorism adviser, John O. Brennan,
delivered a speech in which he strongly denied the accusation
that the administration had sometimes chosen to kill militants when capturing
them was possible, saying the policy preference is to interrogate them for
intelligence.
The
memorandum is said to declare that in the case of a citizen, it is legally
required to capture the militant if
feasible — raising a question: was capturing Mr. Awlaki in fact
feasible?
It
is possible that officials decided last month that it was not feasible
to attempt to capture him because of factors like the risk it could pose to
American commandos and the diplomatic problems that could arise from putting
ground forces on Yemeni soil. Still, the raid on Osama bin Laden’s compound in
Pakistan demonstrates that officials have deemed such operations feasible at
times.
Last
year, Yemeni commandos surrounded a village in which Mr. Awlaki was believed to
be hiding, but he managed to slip away.
The
administration had already expressed in public some of the arguments about
issues of international law addressed by the memo, in a speech delivered
in March 2010 by Harold Hongju Koh, the top State Department lawyer. (ASIL speech by Harold Hongju Koh)
The
memorandum examined whether it was relevant that Mr. Awlaki was in Yemen, far
from Afghanistan. It concluded that Mr.
Awlaki’s geographical distance from the so-called hot battlefield did
not preclude him from the armed conflict; given his presumed circumstances, the
United States still had a right to use force to defend itself against him.
As
to whether it would violate Yemen’s
sovereignty to fire a missile at someone on Yemeni soil, Yemen’s president secretly granted the United States
that permission, as secret diplomatic cables obtained by WikiLeaks have
revealed.
The
memorandum did assert that other limitations on the use of force under the laws
of war — like avoiding the use of disproportionate force that would increase
the possibility of civilian deaths — would constrain any operation against Mr.
Awlaki.
Do-
other LOAC
That
apparently constrained the attack when it finally came. Details about Mr.
Awlaki’s location surfaced about a month ago, American officials have said, but
his hunters delayed the strike until he left a village and was on a road away
from populated areas.
The
Administration’s Strange Reasoning on al-Awlaki
By John
Yoo , October 09, 2011
Sunday’s report on
the Obama administration’s secret legal justification for the killing of Anwar
al-Awlaki shows just how dangerously confused they have become about the rules
of war. All of this comes, of course, with the caveat that we are only
going on secondhand descriptions of the Office of Legal Counsel opinion (and we
should at least note, in passing, that this administration’s members attacked
the Bush folks for not making similar national-security documents public, and
have already refused to make public their legal opinions that laughably found
the Libya conflict not to be a “war”).
Let’s
give partial credit where it is due. Apparently the Obama administration
argues that al-Awlaki was a legitimate target because he is a member of an
enemy engaged in hostile conduct against the United States. At least
Obama has figured out that the war on terrorism is in fact a war, and that it
is not limited just to Afghanistan. We should be thankful that Obama
officials have quietly put aside the arguments they made during the Bush years
that any terrorist outside the Afghani battlefield was a criminal suspect who
deserved his day in federal court. By my lights, I would rather the
Obama folks be hypocrites in favor of protecting the national security than
principled fools (which they are free to be in the faculty lounges both before
and after their time in government).
But
the administration’s former worldview of terrorism still infects their
decisions, to the country’s detriment. According to the reports, the
Obama administration believes that force could only be used against al-Awlaki
because arrest was impractical and al-Awlaki posed an imminent threat of harm
to the United States. This is plainly wrong. It may make for good
policy, especially toward American citizens who make the mistake of joining the
enemy, but there is no legal reason why a nation at war must try to
apprehend an enemy instead of shooting at him first. Every member of
the enemy armed forces and leadership is a legitimate target in wartime,
regardless of whether they can be caught or whether they pose an imminent
threat. In fact, the Obama administration continues to confuse war
with crime — the idea that you must try to arrest first and can
only use force against an imminent attack is the standard that applies to the
police, not the military.
Think
of the operation to kill Admiral Yamamoto in World War II. He was
well behind the lines, flying from one military base to another. He
didn’t pose an “imminent” threat of attack on the United States at that moment.
The United States did not need to ask whether it could have forced
Yamamoto’s plane down first and captured him. It was allowed to kill him,
just as it could kill any other member of the Japanese military, regardless of
his threat.
It
may be that the Obama administration thinks that U.S. citizens who join the
enemy are entitled to special rules — like those that apply to the police,
instead of those that apply to the military. But this would be wrong too.
As I explained in the Wall Street Journal last week,
ever since the Civil War, our national leaders and the Supreme Court have
agreed that a citizen who joins the enemy must suffer the consequences of
his belligerency, with the same status as that of an alien enemy.
Think of the incentives that the strange Obama hybrid rule creates. Our
al-Qaeda enemy will want to recruit American agents, who will benefit from
criminal-justice rules that give them advantages in carrying out operations
against us (like the right to remain silent, to Miranda and
lawyers, to a speedy jury trial, etc.). Our troops and agents in the
field may well hesitate in the field, as they will not be able to tell in the
heat of the moment whether an enemy is American or not. Obama still
remains trapped by his liberal pieties, and those biases will reduce the reach
of American arms and bless the enemy with undeserved advantages.
—
John Yoo is a law professor at the University of California, Berkeley and
author of Crisis and Command: A History of Executive Power from George
Washington to George W. Bush.
