Is it legal for Obama to have Awlaki assassinated?

11:17 am - April 15th 2010

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contribution by Naadir Jeewa

Last week, Obama authorised the CIA to kill Anwar Al-Awlaki, though it seemed to have evaded the British blogs until this week.

Awlaki is not only an extremist, but has been an active recruiter for Al-Qaeda (AQAP), with evidence linking him with both Nidal Hasan and PantsBomber.

However, the Fifth Amendment confers the following rights to Awlaki as a US Citizen:

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 offence 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.

However, this is not to say that infringement of rights during wartime has not happened before, and these have even been upheld by the Supreme Court, in the notorious example of the internment of Japanese Americans. This derives from the war powers conferred on the executive by Article 1, Section 9 of the US Constitution.

Obama’s one-time colleague at the University of Chicago Law School, Cass Sunstein, has argued that the justification of the use of war powers against individual liberty requires the following components:

A requirement of clear congressional authorization or executive action intruding on interests with a claim to constitutional protection; An insistence on fair hearings, including access to courts, for those deprived of liberty…

Spencer Ackerman finds that there’s only one possible clear congressional authorisation that may justify the use of lethal force against a US citizen right of due process, and that is the AUMFAuthorisation of Use of Military Force Against Terrorists (2001):

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

This specifically targets terrorists involved in the 9/11 attacks, but the evidence is not clear with regards to Awlaki’s role in 9/11. Furthermore the Supreme Court overrid congressional authority in Boumediene v. Bush, where the court decided that Guantanomo detainees have a constitutional right to the writ of Habeaus Corpus that stands over and above procedures outlined in congressional legislation and executive orders.

Access to courts is within rights conferred by the Sixth Amendment requiring trial by jury, and by the Fourteenth Amendment requiring due process of law to deprive a citizen of life.

The major questions here involve the applicability of the constitution abroad. The Supreme Court has upheld the constitutional rights of citizens abroad, notably in Reid v. Covert, as Julian Ku notes. However, the weight of the precedent then relies on the extent to which constitutional protection of Awlaki would be “impracticable and anomalous.” This pretty much seems the only justificatory manoeuvre at the current moment.

As a further blow to Harry’s Place/Keep America Afraid Safe types, any evidence that was used to authorise the use of lethal force against Awlaki came from the civilian arrest of Abdulmutallab. No torture was necessary. Likewise, area specialist Greg Johnsen argues that the killing of Awlaki is unlikely to bring significant enhancements to national security.

Ackerman is correct in categorising the AUMF as an emergency power to be used only in war time, and should thus be rescinded. Especially as the DOD stopped referring to the Long War in its latest Defense Review.

My fear is not so much the targeting of a Muslim, in this instance at least, but the continual erosion of due process requirements that authorise a state to deprive an individual citizen of life, liberty or property.

PS: It’s not just the US Government that wants Awlaki dead. So do other terrorists
PPS: Awlaki is not even Al-Qaeda’s top-spokesperson-who-is-also-a-us-citizen. That honour goes to Adam Gudahn.

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Reader comments

A very good piece of research. I agree strongly with your conclusions.

Leaving aside the obsession with the all-powerful HP, do you know what civil rights groups in the US are doing on this, if anything?
Is it being challenged?

I think I missed the point where the US became a dictatorship – I assume that is the proper term for a country where the head of state can order citizens killed for no proven crime and without due process?

That President Obama would consider doing such a thing is a grave disappointment – if the Republicans can avoid footshooting and Palin worship enough to find a liberal constitutionalist (there are still some around) they could win the next presidential election very easily on the basis of this sort of thing.

4. Shatterface

But Obama has a Nobel Peace Prize! How dare you criticise him!

Was it legal? No. Justified is a more difficult question, but again, no. This was a terrorist act which extends the State’s power even further into totalitarianism: it would be entirely justified to arrest Obama on sight.

And sideswipe at HP apart, at least YOU didn’t blame Nick Cohen.

@2 cjcjc

I did a little digging around, and it looks like no one is trying to challenge the decision legally. Spencer Ackerman (linked in the post) has filed FOIA requests, and Glenn Greenwald might do something (linked in Sunny’s post).

I would imagine that by the time a court would get round to wanting to hear the case, either a) Awlaki will be already dead, or b) lots of Yemeni civilians will be dead in a bunch of robokill drone attacks that miss him.

I would add that Yemen is dead-set against the idea, as they’ve made clear in a kind-of pro-Awlaki statement. I suspect they fear greater radicalisation.

And, it seems even military wonks are a tad concerned.

Wouldn’t attacking a civilian (even engaged in criminal activity) in Yemen be an act of war, considering that countries have a legal duty to protect all civilians within their borders from agression?

Is it being challenged?

Not really, no, but criticisms are ably voiced here, here and here. People of a certain persuasion, of course, think it’s the first good thing he’s done. True believers are far too busy worrying about the Tea Parties.

Yes, it does, or should, make a difference that Awlaki is a US citizen.

Regardless of one’s beliefs about his morality, or let’s be clear, absolute immorality, constitutional rights are there to protect citizens from the whims of an over-mighty state. And they apply to all.

I have no problem with targeted assassination of enemy leaderships during a state of war. Why should military action be limited to followers and exempt their leaders?

But this is a different case to Israel’s actions against Yassin, Rantisi or Mabouh. For Obama to act in this way, the US should first either try Awlaki on the evidence against him or revoke his citizenship. In both cases, with all due process.

Considering the survivorlist ideology in parts of the Tea Party, I’m surprised they haven’t gone nuts about this. (Not)

Update: Found the American Civil Liberty Union’s (ACLU) response:

The following can be attributed to Jonathan Manes, legal fellow with the ACLU National Security Project:

“Today’s report raises serious questions about the legal standards that govern targeted killings. The American public deserves to know what standard the government uses and how much evidence is required when it decides, in the name of self-defense or otherwise, to place U.S. citizens on a kill list. In order to assess the moral, legal and strategic implications of the program, the public also needs information about how the program is overseen and what its consequences are in terms of civilian casualties.”

In March, the ACLU filed a Freedom of Information Act (FOIA) lawsuit demanding that the government disclose the legal basis for its use of unmanned drones to conduct targeted killings overseas and related information. In particular, the lawsuit asks for information on when, where and against whom drone strikes can be authorized, the number and rate of civilian casualties, internal oversight and safeguards and other basic information essential for assessing the wisdom and legality of using armed drones to conduct targeted killings.

Of course it is wrong but Obama can probably find a lawyer to defend it on the grounds of self-defence – in the USA a cop is entitled to shoot you if he thinks that you MIGHT be trying to kill him or someone else.
So, drop the Fifth Amendment and try challenging the case for his guilt beyond reasonable doubt that he is trying to kill innocent people.

John77 – You can’t drop the Fifth Amendment! Cases of deadly force have usually been decided using the Fourth Amendment prohibiting “unreasonable” searches and seizures. In this case, the standard was set in Tennessee v. Garner:

Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead….
Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”

Naadir Jeewa,

Thanks for your article.

Do you have any idea whether there is any international law on this subject?

It seems to me that the targetting of folk across international boundaries is a step beyond what we normally see as law.

Perhaps I am wrong, but for any state to attempt to claim that the rest of the planet is the Wild West, subject only to gun law, is a step too far?

There have been cases of assassination in my own city. I do not recall them being treated as anything other than murder. Are we supposed to bow down to American exceptionalism, yet again?

@ 12
I may have phrased it badly – what I am trying to get across that some smart lawyer will find an argument that gets round any one that you have based on the Fifth Amendment. However if they argue
“Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”
the answer should be “what proof have you got that he has committed such a crime or is about to commit one?” They have NO proof. They have hearsay evidence that he is linked to two terrorists but that does not prove that he himself is a terrorist. They need to prove that before putting him on a “shoot to kill” list

@14 – Oh, I see. Yup, their defence would fail following the standard set by the Supreme Court in the above paragraph.

@13. My feeling is that international law is awkward in this type of asymmetric situation. That said, I hope Conor wanders over here and provide some wisdom.

There’s a decent article discussing the issues (paywall). Basically, as we’ve seen here and in the Pickled Politics thread, there’s a tension between a law-enforcement model and a just-war scenario. The author takes a mixed-model approach as follows:

…use of lethal force to defend persons against unlawful violence is justified only when absolutely necessary. As seen above, the accepted view is that this test will be met only when force is used to stop an imminent attack. In other cases, law enforcement mechanisms must be employed. When the terrorists are not subject to the law enforcement jurisdiction of the victim state, and we are talking about violence of the scale and intensity required for the situation to be regarded as one of armed conflict, the parameters of absolute necessity have to be reconsidered.
…I suggest that in deciding whether targeting suspected terrorists could be regarded as absolutely necessary we draw a parallel to a state’s inherent right to self-defence under Article 51 of the UN Charter. In exercising this right, a state’s actions are subject to the requirements of necessity and proportionality. Under the principle of necessity, a state may not use force if there are other means of defending itself. In the present context the implication is that a state may not target suspected terrorists if there is a reasonable possibility of apprehending them and putting them on trial…
Applied to the 2002 cases, even in spite of the consent of the Yemeni government, “the targeting of al-Harethi and his companions was compatible with IHL. Had the Yemen authorities been able to arrest al-Harethi, the licence given to the US to act could not have made the targeting lawful.”

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  1. Lee Griffin

    RT @libcon: Is it legal for Obama to have Awlaki assassinated?

  2. sdv_duras

    RT @libcon: Is it legal for Obama to have Awlaki assassinated?

  3. Christopher Roussel

    RT @sdv_duras @libcon: Is it legal for Obama to have Awlaki assassinated?

  4. Liberal Conspiracy

    Is it legal for Obama to have Awlaki assassinated?

  5. Debating the legality of the Awlaki kill order at Random Variable

    […] X-posted at Liberal Conspiracy […]

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