The Targeted Killing of Anwar al-Awlaki

September 30, 2011

by Roger Koppl

Anwar al-Awlaki was killed in a drone strike today.  If you recognize the name Awlaki, then you know that he was bad guy.  He was a propagandist for Al Qaeda who seems to have inspired the Fort Hood shooting, in which Nidal Hassan killed 13 people.  He was also an American citizen, born in New Mexico.  He was charged with no crime.  No attempt was made to arrest him.  The United States government seems to have had no plan to try him or charge him with any crime.  He was simply targeted for killing, and killed.

The Obama administration announced in April 2010 that it had targeted Awlaki for an extra-judicial killing.  The previous January, the Los Angeles Times reported that Awlaki was a likely target, quoting a source who said it was “all but certain.”  Time magazine comments, “Cynics will point to the strategic timing – just a week after embattled Yemeni President Ali Abdullah Saleh returned from four months of medial treatment in Saudi Arabia following an attack on the presidential compound. Saleh has been facing intense international pressure to acquiesce to a compromise deal with opposition parties that will see him step down after 33 years in power, in exchange for immunity from prosecution.”  As far as I can tell, there is no reason to think the US government’s relationship to Saleh had anything to do with targeting Awlaki.  But it does seem possible to wonder whether the timing of the kill might have been influenced by Saleh’s political fortunes.  As far as I know, public information does not allow us to go beyond somewhat vague speculations on this relatively minor issue of timing.

The government has constructed a legal defense of the targeting of Awlaki, and at the heart of that defense is the invocation of a state-secrets privilege.  Adam Serwer discusses the government argument, which is given here.

Glenn Greenwald rightly notes that it is hard to square this targeted killing with the Fifth Amendment, which reads in full:

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 offense 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 deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Anwar al-Awlaki was denied due process of law.  How can we square the facts with the plain meaning of the Fifth Amendment?

We have lost the due process protections of the Fifth Amendment.  Prisoners in Bagram have no right of habeas corpus, even if brought there after being “rendered” from a location outside of Afghanistan.  These disturbing facts are more worrisome in the context of the increasing militarization of our municipal police and the recent court decision upholding the portion of an Alabama immigration law “that requires state and local law enforcement officials to try to verify a person’s immigration status during routine traffic stops or arrests, if ‘a reasonable suspicion’ exists that the person is in the country illegally.”

So far the authoritarian powers national, state, and local governments in the United States have not visibly encroached on the daily lives of most Americans.  But if we abandon due process, what assurance do have that our children and grandchildren will not be subject to the full array of authoritarian oppressions including censorship, intimidation, and arbitrary arrest?

16 Responses to “The Targeted Killing of Anwar al-Awlaki”

  1. Mario Rizzo Says:

    From Wikipedia:

    http://en.wikipedia.org/wiki/F%C3%BChrerprinzip

    The Führerprinzip, German for “leader principle”, prescribes the fundamental basis of political authority in the governmental structures of the Third Reich. This principle can be most succinctly understood to mean that “the Führer’s word is above all written law” and that governmental policies, decisions, and offices ought to work toward the realization of this end.

  2. N. Joseph Potts Says:

    It is only a matter of time before armed drones are launched against Americans in America.

    You read it here first. You won’t have to remember it long.

  3. Daniel Kuehn Says:

    My understanding is that the fifth amendment applied to all people, regardless of citizenship status – that this is the implication of the use of the word “person” as opposed to “citizen”.

    So I’m not clear why his citizenship status matters here. Are you equally concerned about targeting non-citizens like bin Laden? I guess I’m not understanding how any war gets prosecuted if you read this in this way. I would have thought the fifth amendment refers to criminal incidents.

    But it certainly has nothing to do with citizenship. These are rights that “persons” have under the United States Constitution, not “citizens”.


  4. Roger’s postings and all the comments have been on point. I am not competent to speak to the law, but I am troubled by all this.

    I listened today to a supporter of the policy, who acknowledged that Obama has gone well beyond Bush in the use of drones. He said the lawyers made Obama do it. The ACLU, et al., file suits against detentions, renderings, torture, etc. So, the new policy is just kill the accused.

    So when it do the drones become employed domestically in the drug war, against gangs, etc.? How about “enemies” of the regime?

  5. Roger Koppl Says:

    Daniel,

    Maybe there is a similar argument to made in the bin Laden case, but I haven’t seen it. Anyway, I think citizenship does matter. If the US is willing to chuck aside due process even for its own citizens, then policies meant to defend US citizens have put them in danger. I think that matters. My post also laments the denial of habeas corpus to Bagram prisoners, so it’s not like I think human right are just for “us” or something. I don’t think you meant to suggest that, but perhaps a clarifying remark was in order.

    Jerry,

    Right on. Once due process is cast out, it is hard to see where you can draw any lines that will stand. You have to worry that a falsely accused person will be vilified and executed without due process. I remember what happened to Richard Jewel, the hero of the Atlanta Olympics. The FBI somehow decided he was no hero, but the bomber. They vilified him and the media jumped on the bandwagon. It was terrible, and he was quite innocent. Or consider what’s been happening to Amanda Knox in Italy. The prosecutor has painted her as a monstrous sexual fiend, but it is now starting to look like there is no case against her and that she will be exonerated and released. So you have this pattern whereby law enforcement or a prosecutor gets the idea that This. Is. Our. Guy. and vilifies the suspect even though, in some cases, the vilified person is not only innocent, but free of the vices and flaws attributed to him or her. I don’t think we have any good information on how often that sort of thing happens, but justice would seem to require that we provide safeguards against it. Without due process, you can’t defend against that sort of thing.

  6. ybchoi Says:

    Roger,

    I understand that you are not necessarily lamenting the death of Awlaki, but complaining about the US government killing him without due process. Comments on Roger seem to be in agreement with him, as well. Having grown up in a country where individual rights are frequently trampled by the government (and by those who use the government machinery), believe me, I appreciate the value of due process in protecting individual rights and liberty.

    But I wonder whether the complaint of due process violation is valid in the case of Awlaki. Due process violation is a grave concern if an innocent person’s rights are violated by the government. But Awlaki was not innocent. He had already convicted himself publicly (through various media) by declaring was (jihad) against the U.S. In a perverse fashion Awlaki gave Americans the “due process” of Islam: Convert to Islam, or die, or accept the status of the dhimmi (a second class citizenship in an Islamic theocracy with all that implies). He was faithfully carrying out the due process. His ‘holy warriors’ have been attacking, with varying degrees of success, innocent civilians in the U.S. and elsewhere.

    A demand for perfect justice would render even a tolerable justice impossible.


  7. Interestingly, Bob Levy characterizes the issue as a close legal call and has a thoughtful post on Cato’s website. Here is a link.

    http://www.cato-at-liberty.org/awlaki-and-due-process/

    My own view is that we haven’t decided whether terrorism is a law enforecement issue or we are at war with somebody. (We can’t be at war with “terrorism,” which is a concept). THere was no war declaration.

  8. Mario Rizzo Says:

    The main thing in my mind is that there is no check on Obama’s (or any president’s) actions here. He can claim what he wants and the courts or legislative branch will not seriously question him. Now, in a normal war the general on the scene can do similar things but at least that would be confined to wars with a beginning, middle and end.

    How long will it be before a person in the US (citizen or not) is treated to an extra-judicial termination? As I type these words, I realize it could have happened already as when people are supposedly, but not verifiably, resisting arrest and are killed by government agents.

    Overall, it shocks me how unconcerned Americans are about the very liberties that all of these dubious “war on terror” activities are supposedly protecting.

    We should have high standards for the government even at the expsense of some domestic terrorism (after all, liberty is worth “our lives, our fortunes and our estates” we were once told.)

  9. Allan Walstad Says:

    I am far more concerned about the accumulation of arbitrary power in the American government than I am about some pathetic barbarians holed up in Yemen or Pakistan.

  10. Roger Koppl Says:

    I think all men are brothers, Allan. But let’s leave that issue to one side. The fate of Awlaki is all about “the accumulation of arbitrary power in the American government.” This, indeed, is at the center of my complaint: An American citizen was targeted for killing and killed. Mario is right: In this instance at least, we have adopted the Führerprinzip. So far the American state has exercised restraint in the exercise of its authoritarian power. But it may not exercise such restraint tomorrow. We should be afraid and outraged. We are in trouble. We can still mend our ways, but we are far indeed down the road to serfdom.

    Although press sources have unambiguously indicated that it was a CIA hit, the administration is being coy about the “circumstances” of Awlaki’s death as you can see in the exchange between White House Press Secretary Jay Carney and ABC News reporter Jake Tapper found here:

    http://consultingbyrpm.com/blog/2011/09/jake-tapper-vs.-jay-carney-on-president-killing-u.s.-citizens.html

  11. Richard Ebeling Says:

    I think Mario’s point, above, is crucial, i.e., the general lack of interest and disregard on the part of most Americans that an individual (and in this case an American-born citizen) is targeted by the United States government for assassination — without demonstration of his guilt other than the accusation by the United States government, itself.

    Unfortunately, I think this is partly connected to the frequent reference to American “exceptionalism.” That is, that America is the world’s unique example of a good society of “democracy” and “freedom,” in a world of corruption and cruel tyranny.

    This conception of “exceptionalism” carries with it, too often, the notion that America is and should be judged “above the law,” because the character and conduct of the country makes the United States the world’s “last great hope.”

    Peacefully pursuing the “good society” in our own back yard, our “enemies” attack us just because of who and what we are.

    Thus, our memorial to those killed in the attack at Pearl Harbor, and now our memorial to those who died in the attacks on the World Trade Towers.

    These are our symbols of our innocence and purity in a corrupt world. We are drawn into conflicts never of our own making, and from which we would always remain aloof, if not for the “evil-doers” who drag us into these unwanted conflicts and wars.

    We only go after “wrong-doers,” and never would we intentionally strike out against other innocents. If he (or she) is tagged as a “wrong-doer” is can only be because they are.

    This is part of the mythology with which every young American is educated in school, in most movies, and in much of the cultural attitudes of the society.

    Logically, our political leaders are guided by such “purity” and “innocence” in their management of foreign affairs. After all, “politics” ends at the shore, right? And therefore can be trusted and deferred to in these matters. After all, we are all “Americans.”

    The wrath of a”just” people only fall upon the wicked.

    Richard Ebeling

  12. koppl Says:

    Young Back (“ybchoi”):

    To deprive the guilty of due process is to deprive the innocent of due process as well. We cannot reserve the due process rights to the guilty. Our justice *process* should distinguish the guilty from the innocent. Due process rights help ensure that we make that distinction properly each time. We will, of course, have errors, but due process rights help to reduce them. Such rights are especially important in reducing the frequency of “type I” errors, that is, false convictions. You seem to be saying that if we really know we’ve got out guy, we can dispense with such rights. No risk of error, no need for due process rights. I think there are at least two problems with that view.

    First, we have no mechanism to ensure that the decision makers empowered to dispense with due process will do so only when the person in question really is guilty. The opinion of the powerful is not a reliable indicator of guilt. This would be true even if we had a magic potion that made the powerful averse to any abuse of power. Both bias and unbiased error will still be there. We have no such potion, so we must also fear that the powerful will abuse their discretion sometimes by acting on an unconscious bias and sometimes by self-conscious and willful abuse.

    Second, slippery slopes. Once we chuck aside due process in this one case, or for these few cases, then the costs of doing for other cases goes down and we are moving ever more resolutely toward a purely autocratic system in which the Führerprinzip, of which Mario has spoken, is the universal “rule” and due process has been abandoned altogether.

    I would also note that there does seem to be some ambiguity about what crimes Awlaki was guilty of. In the piece I link to above, Glen Greenwald seems to suggest that Awlaki was small potatoes. The NYTimes had an article suggesting the same thing:

    http://www.nytimes.com/2011/10/02/world/middleeast/as-the-west-celebrates-awlakis-death-the-mideast-shrugs.html?_r=1&scp=2&sq=awlaki&st=cse

    And last year they ran an op ed to the same effect:

    http://www.nytimes.com/2010/11/20/opinion/20johnsen.html

    As far as I know, there is no serious case that Awlaki committed no crimes at all, but was he guilty of a *capital* crime? As far as I can tell, the public record does not contain evidence removing reasonable doubt on that score. You correctly noted that I did not challenge Awlaki’s guilt in my original post. And, again, there does not seem to be any serious doubt that he is guilty of some crimes. But even in his case there may be reasonable doubt about whether he committed a capital crime. And yet, as we saw in the ABC News video I linked to earlier, the government seems unwilling to release its evidence in the case. We should be afraid for our liberties and those of our children and grandchildren.

  13. koppl Says:

    Thank you for that comment, Richard. I think you make a great point. Our certainty that we are in the right makes it harder for us to see when we have strayed from the path.


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  16. Here in Texas, we say that some men just need killing.

    You cannot make a general rule of this. You cannot turn it into a policy. It must not become standard operating procedure.

    The fact that he was an American citizen was irrelevant.

    Leave it at that and move on.


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