Al-`Awlaqi Should have been Tried in Absentia

A CIA drone operator killed the notorious proponent of radical terrorism against the United States, Anwar al-`Awlaqi, on Friday. The killing has provoked some controversy because al-`Awlaqi was a US citizen and was simply assassinated without any due process. Ron Paul has protested, as has the American Civil Liberties Union. Being a terrorism expert myself who knows something serious about al-Qaeda, I can only quote Clarence Darrow here, “All men have an emotion to kill; when they strongly dislike some one they involuntarily wish he was dead. I have never killed any one, but I have read some obituary notices with great satisfaction.” Personal satisfaction apart, one is still left with the question of law raised by Paul and the ACLU.

Here’s a troubling thought: do you really think it would be a good idea to give a President Michele Bachmann or a President Rick Perry the authority to kill American citizens at will and with no due process?

Being a historian, I try to understand these issues by looking at how we got where we are. As a civil libertarian, I am concerned that whatever is done be done within the law.

The two possibilities are that al-`Awlaqi was an enemy combatant on the battlefield in a war on the US, in which case obviously the US government has a right of self-defense and can kill him with impunity; or that he is a civilian terrorist, in which case the US constitution would give him certain prerogatives, such as trial by jury before execution.

It is, however, difficult to see in what way al-`Awlaqi could be configured as a soldier in an enemy army with which the US is actively at war. He was an American citizen of Yemeni extraction (and dual citizenship), living in Yemen. That he was an American is not very relevant to this issue. You can be an American and still be an enemy combatant, as with the German saboteur born in the US, who was sentenced to death as an enemy combatant after WWII for sabotage in the early 1940s. But the United States is not at war with Yemen, and al-`Awlaqi is not in the Yemeni military anyway. The idea that, legally speaking, the US could be at war with small terrorist organizations such as al-Qaeda strikes me as a non-starter. A rhetorical flourish such as the “war on terror” is not a legal statute or article in the constitution. The killing of al-`Awlaqi differs from that of Usamah Bin Laden because in the latter case a US expeditionary force was confronted with someone who appeared to be going for a weapon, whereas al-`Awlaqi was simply targeted.

If people want the United States to be able to declare war on non-governmental organizations that maintain private armies and so are para-statal, we need new statutes or perhaps a constitutional amendment.

So, although US courts tend to defer to the executive on military actions abroad, I just can’t understand under what constitutional provision al-`Awlaqi was killed. If it wasn’t done constitutionally, then it was wrong.

If al-`Awlaqi was a civilian, could he have legally been killed in this way? It has been pointed out (by Newt Gingrich and Salman Rushdie) that he was a traitor and a terrorist.

Such a position hearkens back to the idea of the “outlaw” in common law. A person declared an outlaw by the king was deprived of all rights and legal protections, and anyone could do anything to him that they wished, with no repercussions. (The slang use of “outlaw” to mean simply “habitual criminal” is an echo of this ancient practice, which was abolished in the UK and the US). There is a similar idea in Islamic law, of the mahdur al-dam, someone whose blood can be shed at will. Muslim legal authorities can give a fatwa or legal ruling that an individual falls into this category because he committed an offense such as blasphemy, in which case any Muslim may kill him with impunity. Ironically, this is the category into which Salman Rushdie himself was put by Ayatollah Khomeini in 1988. Likewise, the Baha’i religious minority in Iran is often considered by conservative Shiite clerics to be mahdur al-dam or outlaws, resulting in their persecution. The same forces in US society so worried about sharia being enacted in the United States seem actually to want to adopt the medieval Islamic legal notion of the outlaw in this case, and apply it to an American citizen abroad.

The problem with declaring al-`Awlaqi an “outlaw” by virtue of being a traitor or a terrorist is that this whole idea was abolished by the US constitution. Its framers insisted that you couldn’t just hang someone out to dry by decree. Rather, a person who was alleged to have committed a crime such as treason or terrorism had to be captured, brought to court, tried, and sentenced in accordance with a specific statute, and then punished by the state. If someone is arrested, they have the right to demand to be produced in court before a judge, a right known as habeas corpus (“bringing the body,” i.e. bringing the physical person in front of a judge).

The relevant text is the Sixth Amendment in the Bill of Rights:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

By simply blowing al-`Awlaqi away, the US government deprived him of his sixth amendment rights to trial before a judge and habeas corpus. Note that the German saboteur with American citizenship executed after WW II was tried first. Likewise, enemy combatants in US custody, such as those at Guantanamo, were declared by the US Supreme Court to have the right of habeas corpus. So that Newt Gingrich thinks al-`Awlaqi was a traitor or a terrorist (and this a rare case where I agree subjectively with the Newtster) is irrelevant to his legal status. Unless a judge has pronounced him to be those things after a trial, he was not as far as the US constitution and the US government is concerned.

Some observers have suggested that al-Qaeda is analogous to a band of pirates and that the laws of piracy could be adapted to deal with them. But the US Code says,

TITLE 18 > PART I > CHAPTER 81 > § 1651

§ 1651. Piracy under law of nations

Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.

So even if al-`Awlaqi were declared a pirate because of involvement in the attempt to blow up an airplane, US law would not support dealing with him by drone strike.

It is desirable that the US have some way of defending itself against an al-`Awlaqi. Most legal frameworks for action seem to assume that he should have been arrested. But obviously, capturing al-`Awlaqi in rugged, tribal Yemen would have been a tall order. Is there any way in which he could have been legally killed by drone instead?

Well, let us think this thing through. He could have been tried in absentia.. This step may require a change in the US civil code to allow trial in absentia of someone who was never arrested. The US government could have initiated proceedings against him as an accomplice or as a RICO conspirator in connection with the attempted crotch bombing over Detroit or in connection with the shootings by Nidal Hassan. Nowadays with the internet, we could be reasonably assured that if the US government appointed a court date and publicized it in the Yemeni newspapers in Arabic, al-`Awlaqi could be sure to hear about it. A message might also have been gotten to him via his family.

If he declined to appear in court, he would have waived his right of habeas corpus and the trial could have proceeded in his absence. He could in that way have been sentenced to death if found guilty.

Would it then be all right to send a drone rocket down on him? Only if he was an immediate and concrete danger to others. But signals intelligence is such that the US government might well have been able to make the case that only by killing him could an imminent and specific threat to innocent civilians have been forestalled. At least we’d be beyond some key constitutional issues and in the area of police procedure in dealing with dangerous fugitives already sentenced to death.

By the way, it wouldn’t be appropriate for the action to be taken by a CIA operative. They’re not law enforcement and shouldn’t be killing American citizens. I suppose al-`Awlaqi should have been taken out by the FBI under the above scenario.

The government should only be allowed to imprison or kill American citizens within the framework of the constitution and of US statutes. The problem with the assassination of al-`Awlaqi is that it was lawless. If the president is allowed to act lawlessly, he is not a president but a king. We are taken back to the medieval age, with star chambers, bills of attainder, outlaws, and no habeas corpus or due process. Those bastions of arbitrariness were highly objectionable to the founding generation of Americans and the point of the US constitution was to abolish them in favor of a rule of law. If we surrender the latter, we may as well just all strap on swords and descend into barbarism. Or perhaps we already have.

Ironically, it is a professor of constitutional law who has been the loudest and most effective advocate for a return to the law of the jungle.

On these issues, Barack Obama has been as bad as, and probably worse than, George W. Bush. If he wants the authority to behave in this way, why not get legislation passed?

105 Responses

    • Hear hear! Is this now Historical Fact? I didn’t know the definitive photos (and video?) had been released?

      • The killing of Osama bin Laden was State sanctioned murder. The killing of Anwar al-`Awlaqi was State sanction murder of an American citizen. One of the problems with this ‘war on terror’ and the invention of the group ‘al-Qaeda’ is that they are ill-defined abstractions. What does someone need to do to be deemed to be a member of al-Qaeda? Once started, how does the ‘war on terror’ ever end?

        When a war without end is used to justify the elimination of fundamental civil Rights and the foundations of the rule of law aren’t the very precepts of a democratic republic lost?

        This seems like a pretty high price to pay no matter how much satisfaction reading the obituary notices of these men might bring to self-righteous Westerners enamored of manifest destiny…or to their leaders, addicted to the power of drones and the suffering these cowardly weapons allow them to inflict with seeming impunity.

        • You, as well as Professor Cole and 90 percent of the respondents on this site, are wrong and don’t even realize why you are wrong. You needn’t feel any remorse that Al-Awlaqi was killed, without a trial, by a hellfire missile.

          A. Al-Awlaqui was not some thug who knocked off a Seven-Eleven convenience store; he was an unlawful enemy combatant who did not follow the Geneve Conventions on War. Even as an American citizen, he did not have the right to be convicted in a court of law before being put to death for his unlawful acts in a time of war, when he was fighting on the enemy’s side. It has been a principle in the Law of War that an unlawful enemy combatant, even if an American citizen, does not have special rights.

          B. To those, including Professor Cole, who think that non-state organizations and entities do not wage “war,” you are simply wrong. The “state” as we know it only came into being with the Treaty of Westphalia that ended the Thirty Years War in 1648, yet war existed long before, stretching back centuries before the Common Era. Al-Qaeda and its
          affiliates constitute organizatins that certainly qualify as entities capable of waging war against5 the United States. They make no excuses for it and freely admit it.

          C. Congress authorized action against those who wage war against the Unite States. That Al=Awlaqi was taken out by a Hellfire missile was entirely legal and appropriate. Those who argue otherwise simply do not understand the laws of warfare.

        • Could you please cite the article in the Constitution that talks about war on non-state organizations, or any particular court ruling or further law in this regard?

          Congress authorized war in Afghanistan in 2002, not Yemen.

        • “Congress authorized war in Afghanistan in 2002, not Yemen.”

          We are not at war with Yemen. We are at war with Al-Qaeda.

  1. You have got to be kidding me? This is absurd! This is clearly politically motivated and they as well as you should be a shamed of yourselves!

    • I have to defend Dr. Cole here, he is merely analyzing the situation,as he has done so many others. I find his arguments compelling and although I may not agree with all of them, I suspect not a political motivation, but one of philosophy. He has no reason to be “shamed” for his exploration of facts and truth.

  2. I suggest we start using extra-judicial executions against alleged criminals in the US. After all, many more Americans die each year from murders than from terrorism. Let’s just cover our skies with drones and bomb murderers and alleged murderers from the sky. If their families are killed in the same strike, it’s all the better because it will prevent future murderers from being born.

    • You’ve just described the American Skies in 2048! Sci-Fi American Authoritarianism.

    • America has a word for innocent & by standers killed “Collateral Damage”.

      Enemy has not caught up with this terminology yet!

    • Most people don’t know they have deployed unarmed drones along the Mexican border to fight illegal immigration and drug trafficking. Consider it a test run for using drones in the US. We already hear small police planes and helicopters circling to observe suspects in urban areas pretty often. I’m sure drones would be more efficient. Especially since they can be armed 1984 style later with very few changes in operation and maintenance. You see- we get lethal police state infrastructure for just the price a surveillance system.

  3. IF the government could try al-`Awlaqi in absentia, what is to stop state or federal governments from trying all manner of accused in absentia? One recent example is the decades long effort of the federal government to arrest James “Whitey” Bulger, who is charged with many more actual murders than was al-’Awlaqi accomplished, whose offenses were more speech issues.

    This appears a novel construct, and maybe one that would likewise need new “law” or maybe even a constitutional amendment to get rid of the pesky right to confront the accuser based on suppositions of internet communication, which I believe would be very unwise.

    Is this a power you really want to extend to the Dept. of Justice, whether under Obama or Bachman, or our Courts under Roberts or whomever?

  4. As far as I know in the 4 traditional schools of thought, the person whose blood can be spilled (mahdur ad-dam)has to be living within the confines of the Islamic-ruled country.

    One of the salient features of the Islamic-ruled governments was that they rarely, if ever, sent assassination units to kills apostates or other blasphemers outside of their own lands.

    In addition, even in the case of outright disbelievers like Ahmadis, while at the beginning they are apostates from Islam, at this stage anyone holding Ahmadi beliefs is to be treated as a member of a non-Muslim religion, and not as an apostate, etc.

  5. The term “enemy combatant” is a creation of the same Bush legal team that said torture was OK…it is pure semantics used to justify crimes…if I killed someone to put them out of their mercy I would still be a crimanal killer!
    Another sad day in the slide to someplace less honorable than where we were after Bush.

    • “Someplace less honorable” hardly comes close to describe Slimy Slide our Sad Country has been on for decades.

    • The term “enemy combatant” is a creation of the same Bush legal team that said torture was OK

      No, not really. The concept is articulated in the Geneva Conventions, referred to there as an “unlawful combatant.”

      The Bush administration’s novelty wasn’t creating the category, but inventing a passel of rules that allowed people in that category to be mistreated.

      And yes, the government is allowed to kill people that private citizens are not. This is also not a novel legal theory of the Bush administration.

  6. The trial should be held in the district and State where the crime was committed. Do the US Courts claim jurisdiction over crimes committed outside the United States, and if so do other states accept that jurisdiction?

  7. Thank you, Juan. There are too few people saying this.

    But it would seem to me, that the fifth amendment, forbidding persons to be “deprived of life, liberty or property without due process of law” would seem to rule out even the passage of legislation giving the president “authority to behave in this way.” Perhaps you were being coy.

    If someone pulls out a gun in Macy’s window and commits murder, and is seen by dozens, the police may not execute him except in self defense if he then clearly threatens them or others. To be put to death for the first murder, of which there is no doubt he is guilty, he still has to be charged, tried by a jury of his peers and convicted. Or he has to be afforded whatever other “due process of law” he agrees to.

    So the mere assertion of what al-`Awlaqi did, EVEN IF 100% ACCURATE, is insufficient. We are still required to follow due process.

    • “We are still required to follow due process” – Due Process now includes targeted extra-judicial assassination (a process we’ve long watched from afar, with Bi-Partisan Approval, in the Occupied Territories). Rule of Law seems to be a very malleable construct.

  8. One question that I have not heard anyone ask: Who is the final authority in the executive branch who decides who is to be killed? Seems that nobody has stepped up to the plate on this one. And of course nobody in government has unequivocally accepted responsibility for the decision, not unsurprisingly.

    • Our Nobel Laureate Leader seemed to take full responsibility at his press conference yesterday. Don’t Mafia underlings often go to their Leaders to suggest additions to the Hit List?

  9. Juan–FYI, Crosby V US prohibits trial in absentia:

    “Held: Rule 43 prohibits the trial in absentia of a defendant who is not present at the beginning of trial.”

    link to law.cornell.edu

      • Juan, the exception seems to be limited strictly to individuals who disappear once a trial has begun; fleeing after a pre-trial appearance doesn’t count.

        So, as I wrote in my comment below, the issue of an al-Awlaqi – which doesn’t fall under the Crosby rule – still raises a significant number of constitutional, legal and ethical issues around the problem of neutralizing (and not in the “hit man” meaning of the word) a threat people like him pose.

      • The link to Slate isn’t relevant in that al-`Awlaqi would need to be present at the beginning of the trial and then skip out after the trial commences. And pre-trial business doesn’t count. You continually ignore that distinction, though it is clear in the Slate article. The Feds would have to capture him first, not assassinate him as was done.

        • My piece is about whether a legal way can be found to put these activities under the law. The US civil code might need to be amended, which is a matter of legislation. I’d rather have a court try in absentia someone never in custody than to have the attorney general assassinate by memo.

  10. The issue of extrajudicial arrests and executions is a thorny one, and English common law – even our own Constitution – evolved in a time long before there were multi-national terrorists with access to the Internet and a global audience.

    While I deplore the assassination of Anwar al’Awlaqi for a whole host of reasons, I also wonder how we as a society deal with direct threats posed by people – American citizens or not – who are beyond the reach of police, FBI, CIA or military units, making their capture for trial problematic. On the one hand, simply assassinating al’Awlaqi goes against everything this nation stands for and risks turning him into a martyr; on the other, how do we contain or neutralize a threat that already has carried out at least three plots, two of which were thwarted, to attack US citizens and is actively inspiring others to do the same thing?

    I’m not sure there are any easy answers. Changing federal law to allow a FISA-like secret court to issue a warrant isn’t the right approach; the existing FISA court has a dismal record of allowing the government to conduct a raft of constitutionally questionable activities just on the say-so of the FBI and Justice Dept. affidavits. The un-Patriot Act is a black mark against the rights and liberties of ordinary citizens and has done little to actually stop or capture actual real or potential terrorists, so another version of it isn’t the answer, either.

    As a long-time member of the ACLU, I am against any attempt to further weaken the provisions of the Constitution and our sacred Bill of Rights. At the same time, I am deeply troubled by the legal and ethical issues raised by people such as al-Awlaqi and the threats they pose.

  11. IANAL, but it seems to me that the constitutional requirement that an accused be confronted with witnesses prohibits trial in absentia.

    Other than being elected to office, I don’t recall that the constitution gives citizens any special rights over non-citizens. These rights that Awlaqi has are the same rights that every person has.

    It is problematic that Awlaqi is in a country that either has not the power or has not the will to enforce its authority. It would be nice if the US could ask Yemen to arrest Awlaqi and deliver him for trial.

  12. “Such a position hearkens back to the idea of the ‘outlaw’ in common law.” You also mentioned a trial in absentia.
    In the old West…at least according to the John Wayne movies…a Wanted poster for an outlaw would read “Wanted Dead or Alive,” and there might even be a reward for bringing him in (in either condition). Seems to me that the minimum required before going after an American citizen would be an announcement to the effect that if the suspect turns himself in, he would be guaranteed a fair trial; otherwise he’s fair game.
    Who does the killing doesn’t seem to be a big deal. The CIA agent or the Air Force drone operator could be deputized as needed.

    • You are referring to the prerogative of a bounty hunter to use reasonable force in apprehending a bail jumper, up to and including killing him if he is about to deploy lethal force on anyone, including the bounty hunter. In contemporary US law the bounty hunter cannot simply kill the bail jumper any more than a policeman can.

      • Bail jumper is different–someone who has been arrested and released on bail. A “fugitive from justice” may never have been arrested. Do bounty hunters only go after bail jumpers? (I doubt it. Rewards were posted for people who have never been arrested.)
        So it would seem that the only judiciary action needed is the issuance of an arrest warrant, which can be done on the presentation of some evidence. Then if the subject of the warrant does not turn himself in voluntarily for trial, “law enforcement,” or any citizen, can go after him. As you say, an arrest is preferable to a killing, but conditions may make an attempt at an arrest impossible.

  13. Yes, how do you know? Are we to trust murderers sent to perform assassination to tell the truth? And were they on oath? And so on.

    As to do I want Bachmann or Perry to have sole discretion to assassinate anyone at all, anywhere at all, on any grounds or no grounds at all, and all without any court intervention (“due” or not).

    Warning: the groveling US S/C might, if asked, rule that there was NO process “due” to any person whatever accused by any other person whatever of being a “terrorist” and that, therefore, punishment, even the death penalty, may be imposed BY THE GOVERNMENT at will, all “due process” having been (trivially) satisfied. However, this court has not, to my knowledge, been asked to rule on this one.

  14. This was an excellent analysis, except in the end I am not sure if Awlaki should have been killed at all. His so-called crimes are extremely vague and dubious. He’s not someone I paid any attention to until his execution I admit but since I looked his videos up on the web I can see how his views became extremely cynical towards the US, with still a touch of his earlier idealism showing through. Like the other commentator above I seriously doubt that the man who was claimed to be Osama was reaching for a weapon. That whole thing was a sham and a big show. Psy-ops not reality.

      • Unfortunately Obama, the constitutional law professor, did an end run around the courts by countenancing an extra-judicial execution of bin Laden, just as he has done with al-`Awlaqi .

  15. A really well written assessment of the black hole of government lawlessness into which we are silently descending. If one looks back over the last 10 years, the most alarming trend is that of the people of this country becoming comfortable with king CIA. Whatever they do must be good simply because they are “good” guys going after “bad”.

    I think the root of this rot stems from the fact that we as a nation have never objectively examined the 9/11 incident and never held anyone accountable even though there were numerous serious breaches of policy in the days leading up to and on the day of 9/11. These are so serious that conspiracy theories continue to thrive. The real crime in all of this is that our leaders since 9/11 have convinced the population that we have to act outside of constitutional law in order to protect ourselves from another terrorist event when indeed maybe all we have to do is enforce the laws and policies we had before 9/11. When no one is held accountable, then the door opens to our imagining an enemy so good at what they do that we have to give up who we are in order to fight them.

    I try to avoid airline travel as much as possible because I can’t stand airport security. It screams of the insanity associated with the lawless black hole we are quietly descending into.

    danh

    • What you are describing began long before 9/11, but the majority of the public is unaware of this.

  16. Really, that statement – ” The killing of al-`Awlaqi differs from that of Usamah Bin Laden because in the latter case a US expeditionary force was confronted with someone who appeared to be going for a weapon, whereas al-`Awlaqi was simply targeted.” – weakens any arguments that follow. That expeditionary force was on an assassination mission. I don’t approve of either killing but assassinating a US citizen definitely sets a worse precedent than bin Laden’s killing. You could have just argued that point. Going for a gun. Just like on TV!

  17. I disagree, Professor Cole.
    This is not Bush/Cheney sweeping-up or targeting everyone as “suspected terrorist” even as they prove they don’t know the meaning of the word by attacking critics as “sympathizers” and “appeasers”.

    Every single time this piece of garbage stepped in front of a video camera and called for violent attacks on the US, he forfeited his right to due-process in my opinion. Not one single time did he proclaim his innocence. Not one single time did he say “whoa – you’ve got the wrong guy!”. Instead he reveled in the notoriety and fame with which he was rewarded for his violent rhetoric. He has access and he had a way to communicate with the rest of the world, and not once did he deny the allegations against him.
    He got exactly what he deserved and will not be missed.

      • How about treason? I’m not being flippant here, but if the arguments against this assassination are based on his US citizenship, then is he not guilty of treason? If he is a citizen, then his very public calls to attack the US fit the definition, and if he’s NOT a citizen (no idea if he ever disavowed his US citizenship) then he’s just another enemy soldier.

        • Which court found him guilty of treason?

          If a foreign national killed, then wouldn’t that be an assassination, which is illegal?

        • A close parallel to the case of Anwar al-Awlaki in recent history was the case of William Joyce, a.k.a. “Lord Haw-Haw,” an Irish-American fascist who broadcast Nazi propaganda to Britain from Germany during the Second World War. In the final days of the war he was captured by British troops in Hamburg. It’s worth noting — given Lord Haw-Haw’s notoriety, his unrepentant dedication to the Nazi cause, the fact that the war was still underway, and the politically and emotionally charged circumstances of the time — that he was not executed on the spot. Instead, he was brought to London, where he was put on trial and convicted of treason (a controversial ruling, since there’s some question as to whether Joyce really was a British citizen at the time of his offenses) and sentenced to death. His execution in 1946 was the last time anyone was put to death for treason under British law.

        • Ideally, he should have been arrested and put on trial for treason. A rare and difficult charge to prove but in his case I think, an open and shut case. Perhaps “treason in absentia” was the way to go but absentia trial have there own potential for abuse.

      • Does Dehumanizing (“piece of garbage”?) this Radicalized American Cleric(it happen over The Past Decade while watching the mind-boggling savagery of US Military Actions in Muslim Homes & Cities all over our Sad Planet) contribute anything worthy to this otherwise Sane Blog?

    • Oruacat2- he still made the Pentagon luncheon list of invitee. Strange they did not know who they invited, and didn’t arrest him then.

      “If people want the United States to be able to declare war on non-governmental organizations that maintain private armies”..

      Does this mean Eric Prince might have some worries in the future? Prince made a quick exit out of the US.

      • Prince has nothing to worry about. He (he & his many elite connections within our corporate/government complex) represents perfectly the Warped Christian Theology (like the warped fundamentalism of other religions) that fuels this continuing madness of killing. And Prince didn’t flee the US – he’s simply following the Mercenary Money!

        • Eric Prince and the Romney family are tight, they have been for years, as they have been with the DeVos family. Prince would be Mitt right hand man.

  18. Yes, this is the question. What ARE his crimes, what is the evidence? If he’s been engineering attacks on the US via airliners and passengers he’s an enemy combatant, citizen or not. We don’t bring to trial enemies attacking us but defend against them. This is the obvious counter-argument. Was he an enemy? How? Versus mouthing off critically? This information needs to be clearer.

      • Fear not DT, Obama has put his own a Cop on The Curb Free Speech Beat. Coincidentally another Chicago/Harvard Professor of Law by the name of Cass Sunstein link to wnd.com

        • I “mouth off critically” myself–government POV intended with that language. It seems to me crucial to define when speech can be equated with bombs and missiles. How can Awlaki’s rhetoric be responsible for attacks on the US? Or was he arming and secreting the bombs and putting them in somebody’s underwear? It’s difficult to distinguish between “enemy combatant” and “member of a hostile foreign organization” without more information on this matter. Since yesterday I’ve read Awlaki was critical of the 9/11 attacks. What did he do to put him in the “enemy combatant” position other than “mouthing off critically”?

  19. According to the Slate article, Bin Laden couldn’t have been tried in absentia because he was never in custody. I don’t see how Awlaki’s case is distinguishable unless Awlaki was charged in the US at some point and was present for the beginning of his trial. What am I missing?

    • If true, then all that would be needed is a minor change in the US civil code, which is a matter of congressional legislation.

      I think some states don’t have the in custody provision.

      The point of my piece is that a legal framework has to be found or created here if we are to remain a country of laws and not men.

      • It seems to me that over reliance on Law Persons is part of the problem. We’re trapped by the Cleft Stick of Lawyers & Banksters.

  20. It seems to me that the procedure followed was significantly worse than ‘lawless’. According to widely-published reports, a secret DOJ memo was constructed to justify its legality. What’s happened, then, is the substitution of a star-chamber-like action, with full formal trappings, for ‘due process’.

    We now apparently have a full-fledged legal mechanism in place, in the hands of whoever controls the executive branch. This is Obama’s real contribution: building structure around the Cheney-Bush initiatives, which are therefore ‘rogue’ no more.

  21. Here is where your argument ran off the rails; you wrote:

    “The idea that, legally speaking, the US could be at war with small terrorist organizations such as al-Qaeda strikes me as a non-starter. A rhetorical flourish such as the “war on terror” is not a legal statute or article in the constitution…

    If people want the United States to be able to declare war on non-governmental organizations that maintain private armies and so are para-statal, we need new statutes or perhaps a constitutional amendment.”

    This simply isn’t true. Since you’re an historian, I assume you would agree that Patton and Bradley had no obligation to halt their assaults on German military formations because there were German Americans who had left the US and joined the German armed forces. I assume we can agree on that — which is to say, the law of war, not criminal law, applied to any German US citizen in the German army wearing a German uniform. It wouldn’t matter whether that US citizen in the German army was carrying a rifle or was a propaganda officer writing the official newsletter of a Panzer division.

    So the only question is the one the quoted language raises — whether a US citizen who joins a non-state military terrorist organization is subject to the same rules, and whether the US can be at war with such an organization. That’s the only “interesting” or “difficult” question about this killing. But there is no question whatsoever that this organization declared war on the US in an attack that rivaled Pearl Harbor in scale. There is no question that the US has authorized war against that organization. There is no question that the UN Security Council has authorized this war by the US on AQ. There is no question that Anwar al-`Awlaqi was a member of this organization because of his writings and videos. So the only questions are: does it matter that the organization was non-state military organization, and that al-`Awlaqi wasn’t in uniform?

    Well, when the founding fathers were still running this country in the late 18th century there were equivalents of AQ — small, non-state, military organizations not in uniforms. They were called pirates. Some of them were US citizens. The US Navy fired upon said pirates’ ships without trial or due process. I’m puzzled by the idea that because military organization is non-state and not in uniform it somehow falls outside the law of war — especially when that organization declared war with a spectacular attack on the US mainland.

    • I already said that being an American citizen is not the issue if he were a soldier in a foreign army.

      He was not, and al-Qaeda is not like the German army that Patton fought.

      Al-Qaeda is a little like a pirate band, but the US civil code now regulates how pirates are to be dealt with, and it isn’t by blowing them away from a distance. It isn’t 1802 any more.

      None of your analogies would hold water in court.

      • You are misreading Title 18, 1651 and related sections. Nothing in there prohibits a U.S. warship from attacking and sinking a pirate on the high seas. It only notes that if a pirate falls into U.S. custody, that he is subject to life imprisonment. The U.S. most certainly can “blow away pirates at a distance”, and failure by a U.S. Navy commander to do so would be punished as dereliction of duty.

        • Thanks. It is still that case that no court of law indicted al-`Awlaqi for piracy and that he was not killed on a ship on the high seas.

      • al-Qaeda is not like the German army that Patton fought.

        They are different in a whole host of ways. You’ve yet to explain why any of those differences presents a legal barrier to a state of war existing between us and them. You’ve just noted that they’re different.

        I can think of a couple of ways that they are similar, on the other hand, that seem relevant to the question: they acted as an organization to launch a major attack on our country; they maintain combat forces; and the United States Congress authorized the use of force against them under its war powers. I’ll note that authorization has never been held to be invalid by any court or any branch of government. Nor has there been any other case establishing a precedent that prevents Congress from declaring war on a non-state organization.

      • If citizenship isn’t the issue, why did you provide qualified support on this blog for the killing of Osama bin Laden? What’s the difference between him and al-Awlaqi other than the latter’s citizenship? Both were “officers” of a foreign military organization at war with the United States.

        As for your assertion that the US doesn’t blow away pirates, the US Navy just recently summarily shot and killed Somali pirates. I suppose you could make the distinction that there was a hostage situation. But I really don’t think that it is correct to say that the US Navy no longer can fire upon pirate ships. In the case of al-Awlaqi, the US military fired on an AQ convoy, something that happens regularly in Pakistan and Afghanistan.

    • Hamden Rice: “There is no question that Anwar al-`Awlaqi was a member of this organization because of his writings and videos.”

      Is that true? I don’t know myself; I’m asking. Did he say he was a member of Al-Qaeda? Did he give his allegiance to bin Laden?

  22. I agree with everything you’ve mentioned here(e.g. that the fact that they were Americans is somewhat irrelevant in the debate, see Matt Yglesias post on it for instance). I would add one thing I found interesting reading the NYT this morning was this:

    “Mr. Khan(…)proclaimed in the magazine last year that he was “proud to be a traitor to America””

    • “Proud to be a traitor to America” – the Fresh Breeze of the Arab Spring carries the voices of millions of young world-savvy citizens who are No Doubt proud to be traitors to their nation’s murderous regimes. And if USA continues its slide into nothing but a Wall Street Brand, I stand with the brave young people in NY getting beaten & pepper-sprayed by New York’s Finest Thugs. Call them Traitors, and call me a Traitor!

  23. Something possibly overlooked here, is that the dead terrorist voluntarily forfeit his citizenship rights.
    Please see this link and tell me that it’s not applicable:

    link to law.cornell.edu

    I’m reading he also had a Yemeni visa, which he used to attend school here in San Diego while he was also recruiting at a Mosque in La Mesa (CA) where he worked closely with several of the 9-11 hijackers.

    Another dream act success story perhaps?

    • I would like a court to determine whether he was an American citizen.

      If he was a foreign national, then he was assassinated, which is illegal.

    • Not a dream act success story. Two points of fact:

      (1.) Anwar Awlaki was a US citizen by birth (born in Las Cruces, NM, April 22, 1971).

      (2.) The law on loss of US citizenship cited on the Cornell website is still on the books, but it has not been enforceable since 1967. In that year, a majority of the U.S. Supreme Court ruled in the case
      Afroyim v. Rusk that “Congress has no power under the Constitution to divest a person of his United States citizenship absent his voluntary renunciation thereof.”

      As a result, since 1967 American citizens could no longer be deprived of their US citizenship solely on the basis of having performed the ‘expatriating acts’ enumerated in §1481(a). Were it otherwise, thousands of US citizens who have acquired foreign (Israeli) passports since 1967 under the “Law of Return,” have voted in Israeli elections, have served in the Israeli armed forces, etc., would have automatically forfeited their US citizenship. As we know, that has not happened — it’s neither constitutionally nor politically feasible. In order to lose one’s US citizenship, whether acquired by birth or through naturalization, one has to voluntarily relinquish it; in most cases that means one has to go to a US consulate and sign a document formally renouncing it.

    • I don’t know about the law, but in reality, it doesn’t work like that. I know for a fact that you can renounce your U.S. citizenship, as a condition for getting citizenship in another country (a country that doesn’t allow dual citizenship), and the U.S. will simply give you your passport back when the process is finished, not considering your renunciation to be binding.

  24. “Here’s a troubling thought: do you really think it would be a good idea to give a President Michele Bachmann or a President Rick Perry the authority to kill American citizens at will and with no due process?” —-

    I would be worried about a President Mitt Romney since Mitt has the torture people on his staff.

    Torture Series
    link to justthoughts-blogger.blogspot.com

  25. Excellent article, Juan. Btw, couldn’t we show our moral disdain for this barbarian lawlessness by henceforth calling drone strikes on US citizens ‘due process’ & by calling the DOJ The Star Chamber. As in: “27 more American citizens were due processed in the Middle East over the weekend after a secret ukaz issued by The Star Chamber gave the thumbs-up to this noble & patriotic deed in defense of the glorious Motherland.”

  26. Turkey is carrying out a big “aid campaign” for Somali which is in the grip of drought and Prime Minister “Recep Tayyip Erdogan” leads this campaign.

    Desiring to be the leader of Muslim countries in the middle east region , Turkish Prime Minister tries to show to the İslamic World that he is not indifferent to the “Muslim Somalian People”. He stands up to Israel in order to gain sympathy of Muslim countries.

    However, he ignores a part of his citizens who trie to continue their lives under very difficult conditions in Turkey!

    Because of the economic crises that have been experienced in Turkey, “bankrupt businessmen live under very difficult conditions”, and they are sought by the courts and police because of their debts.

    When these businessmen are caught by the police, they are put into prison for five years. They do not have a prominent address and they constantly change the place they live in order not to be caught by the police. They are unable to receive treatment when they get ill, because in hospitals, the police check whether the person is sought or not by the courts. And if they have a job, they can in no way benefit from social rights since they are unable to make the social security registration.

    And the most terrifying result is that “they can not send their children to school”, so the children can not take education. Because the legal residence address information is required for registration to the school. When the address information is given to the school, these information get saved in the address information system and the police comes to catch the wanted person because of his debts.

    It is claimed that there are 400 thousand people in Turkey who are sought by the police and other military security forces because of their debts and that 70 thousand businessmen are still being kept in prison for their debts. When these numbers are commented together with the families of the businessmen, it means that there are 1,5 million people living under difficult conditions!

    For giving treatment in hospitals, the hospitals sought for the condition that the person has a Social Security Organization registration. And if there is no registration in these security organizations, none of the family members can benefit from the treatment services. Because when a person makes such a registration, his residence address is detected by the police and the person can be caught.

    These data means that 20 percent of the population live without social security.

    These people are unable to receive treatment in the hospitals, and those of them who find a job work without social security in their work place and they can not send their children to school.

  27. If people want the United States to be able to declare war on non-governmental organizations that maintain private armies and so are para-statal, we need new statutes or perhaps a constitutional amendment.

    Says who? States have waged war on non-state actors throughout human history. The self-styled “Confederate States of America” wasn’t a state – it was a secessionist rebel movement – but we were clearly at war with them. If FARC was raiding into Peru, could Peru not declare war against FARC? I don’t see why not.

    Congress passed an AUMF, the legal equivalent of a war declaration. That has legal standing, and as much more than a “rhetorical flourish,” such as War on Drugs, or War on Poverty, or War on Terror. Certainly, it’s never been held to be unconstitutional. I don’t understand what is supposed to make this a non-starter.

    And once you realize that, we get back to your fourth paragraph: al-`Awlaqi was an enemy combatant on the battlefield in a war on the US, in which case obviously the US government has a right of self-defense and can kill him with impunity

    What is a non-starter, on the other hand, is the explanation about this being different from the bin Laden killing. The SEALs went there to kill Osama bin Laden. I’m sure they would have accepted his legal surrender if he’d offered it, in accordance with the law, but they weren’t there to take a surrender. The “expeditionary force” was sent there for the purpose of killing him, just as sure as the missile. It was the desire to collect computers and other evidence, not a plan that didn’t involve killing him, that explains the use of special operations instead of a missile.

  28. This power doesn’t give the President the power to kill Americans at will, of course.

    It only gives the President the power to order attacks against Americans who have joined our wartime enemies.

    I would think that the civil libertarian concern here would be best served by highlighting the bright-line difference between what the executive can do in a wartime situation under Congressionally-authorized war powers and what he can do under general executive powers, as opposed to blurring it.

    • Your so-called “bright-line is meaningless in a War Without End. Like the War on Drugs, the War on Terror can easily slip into domestic government murder of citizens: wiki-terrorists, eco-terrorists, gang-terrorists, militia-terrorists, and now “incitement” terrorists. Civil libertarians are not the ones “blurring” what was maybe once, in a more Quaint Time, a bright-line.

  29. Ha ha, see how far we have come – to a place where we debate whether or not its necessary for the trial before the execution .
    Rest assured that as you wrestle with this thorny issue your government is working to ensure it doesn’t arise again, secret courts to hear the secret evidence ending in a secret conviction and inevitable death sentence carried out and celebrated way too publicly.
    What exactly did that guy do????- it must have been bad- it must have been truly heinous …….you trust the government that much??

  30. Suppose terrorists are pirates. Yes, the piracy law suggests trying and imprisoning pirates. But it does not mean that the Navy are forbidden from chasing and destroying the pirate ships!

    The problem is, I don’t think that piracy was ever considered as a major foreign policy issue! Historically, major anti-piracy operations are considered as a pretext for military intervention in certain countries.

    From this prospective, libertarian discussion of piracy/terrorism is just a smoke screen for crude colonial interventionism. This could be not obvious 10 years ago, immediately after 9-11, but not now.

  31. Pres. Obama agreed to let this go forward because he knew in his gut he could. The expeditious “execution” of the cleric is a reflection of the bearing the military industrial/homeland security complex has on the collective psyche of the population of America, which is to say pervasive and at the same time not much at all.
    Our leaders have mostly bought into the “war on terror” for these main reasons: 1) it appeals to the patriotic and nationalistic sensesibilities of the majority cross section of citizens in this country 2) it is lucrative and self serving to do so – homeland security is at least an 80 billion dollar a year industry then add count private millitary contractors plus other industries that look to profit from emerging markets in countries that have been targeted by the “war on terror” 3) on some unspoken level they either willing embraced or sadly resigned themselves to the fact that America has fundamentaly changed and in order to move forward in this world and simultaneously maintain dominance in a globaly interconected world, the rights of the individual citizen must be forfeited
    Sadly, i will conclude that as long as the world continues to persue pass times of “drinking beer and watching football” (pannis e circensus) we will consider listening to figure heads who question the validity of science and who lack the creativity and will power to do anything about the U.S.’s trajectory into a neo corporate-facist state where we will all be products to be profited from.
    This generation may be the last to enjoy the luxury of disscusions of this nature.

  32. Joe from Lowell is absolutely correct in his analysis. The AUMF is functionally equivalent to a declaration of war against al Qaeda. Is there any support at all for the contention that war powers wouldn’t apply here?

    • ‘functionally equivalent’ to a ‘declaration of war’ is not legal language but political rhetoric.

      The US Congress has not declared war on Yemen, or even on the estimated 300 al-Qaeda “members” (is there an official membership list?) in Yemen.

      It isn’t a war, folks. Stop pretending it is.

      Nixon didn’t fire predator drones into Berlin in an attempt to get the Baader-Meinhoff gang.

      • “It isn’t a war, folks. Stop pretending it is.”

        Your are wrong, Professor. It is war. See my post above. Wars are, and have been through0ut history, conducted by both state and non-state actors.

  33. Question:
    Assuming the reports are true, a Saudi bombmaker was also killed in the same airstrike. If that bombmaker had been the intended target and not al-Alwaqi, would we see the same level of outrage? If not for the well-publicized authorization to target al-Alwaqi, if his death were the result of being in the same convoy with targeted non-US-citizen terrorists, would we see the same level of outrage?

    • The answer to your question is: obviously not. We (like our Israeli allies) have been carrying out extra-judicial assassinations with Collateral Damage for many years now on fellow human beings with little outrage from the public. I don’t remember a peep of outrage just a few months ago when Israel murdered of a young non-violent US Citizen on a Peace Flotilla. Was our Peace Loving President bothered by it? Did he object? Did any Mainstream Media Personalities object?

  34. There is another disturbing trend that helped put the US into a situation where it cannot capture people for trial or kill them in a gunfight. Namely, America doesn’t win wars anymore.

    I mean, the Lord Haw-Haw example depended on Germany actually losing the war and having to be exposed to a thorough Allied occupation. Any comparisons to the American Civil War are affected by the fact that the US was able to eliminate the organization that was making all the trouble that justified the use of lethal force, thus rendering its partisans ordinary criminals on US soil who could reasonably be captured. US wars ended in only a few years with its troops in control of the enemy’s capital and the ability to sort out the status and threat levels of those still at large.

    But now we’re stuck in a world where people fight against the US, but live in a country that is not at war with the US but not about to be its toady. There will never again be a time when we can “win” any war in the traditional sense. So the war lasts until we hunt down every last partisan, but we can’t shoot him unless he’s shooting at us, and we can’t capture him because we’re illegally in a sovereign country and it’s not worth the lives of dozens of our men to take him back alive. When in the past have we had to wage war this way?

    America, by the way, has carried out large assassination programs before. There was Operation Phoenix, which had legal cover in the form of the fake government of South Vietnam, on whose fake soil the targets were living. Nowadays we can’t even obtain that level of cover.

    • Lets not forget our Domestic Assassination Program in the 60′s and 70′s called Co-Intel directed against charismatic African-American leaders (Black Panthers).

  35. I’m fascinated to see that in the many articles about Anwar Awlaki, almost no one mentions that after returning to Yemen, he was arrested and kept in a notorious Yemeni prison for about one and a half years. He believed that it was at the request of the U.S. government, and I think he said that he was questioned by FBI agents there. Yet the typical reporting skips over that, as in this, from a New York Times article:

    “He returned to Yemen in 2004 and his English-language sermons became ever more stridently anti-American.”

    • Excellent point. This is the same reasoning used to justify the continuing imprisonment of innocent ‘detainees’ at Guantanamo. They believe that these men, after years of unjust detention and ill treatment will BECOME ‘terrorists’ if they are ever released…even if they had no such inclination previously. The Constitution and our supposed principles have always been a fig leaf we hid behind but with these recent developments the fig leaf has disintegrated into almost complete transparency for anyone willing to see. It reminds me of someone who would beat a dog for years and then pretend to be justified in killing it when the dog finally fought back. There is a sickness upon us.

  36. Sad to say, but US-citizens are now equal to the rest of the humane beeings on the planet and can now, like all others, be disapeared, tortured and killed by the government.
    Welcome bach to the humane race…….

  37. Critics accuse the US of killing prominent adversaries to avoid trials which might incriminate or embarrass the US. Bin Laden- killed without testimony, former indirect ally of the US. Saddam, former direct ally of the US under Reagan, kept inaccessible to neutral parties (possibly drugged?) and killed after a quick trial with little relevant testimony, by a court with suspect neutrality, for crimes mostly committed while involved with the US. Now al-`Awlaqi. All these people may have been guilty and possibly deserved death, but that has little to do avoiding a trial which may illuminate the logic of our enemies and possibly even expose our own mistakes. I would have been very interested to hear what a lucid and alert Saddam would say about our involvement in the Iran-Iraq war, which I was very critical of at the time.

    So the United States, supposed great bastion, hope and symbol of democracy in the world, avoids trials and accountability in dealing with enemies. Instead of demonstrating our confidence and our belief in justice and rule of law by pointedly giving ideological enemies a fair trial at the Hague, we dispose of them by stealth just like any despot, even throwing the body to the sharks. These policies, remarkably free of checks and balances, are the loose cannons of “wars” which were themselves illegal from the start, while behind the scenes, the US “defense” industry, the largest and deadliest industry in the world, continues unfettered by our “peace” president, if not actively extorting him.

    And now we find ourselves actually debating the ethics of a globally deployable force of extra-judicial assassination drones which barely require human operation, and will soon be fully automatic and fully integrated with a ultra-wide spectrum, global surveillance network. And people naively imagine that this technology will never leave the battlefield? Never go beyond this stage?

    Seriously?

    • I agree with almost everything John, except your suggestion that terrorists should be tried in the Hague court.

      The ICC probably doesn’t have the competency to indict terrorists, and seeing that USA isn’t a signatory to the relevant treaty I wouldn’t have thought it has standing in the court anyway. The ICC is to be used where there’s no alternative, e.g. failed or non-existent state scenario such as Rwanda or former Yugoslavia. And, should the USA be allowed to socialize the costs of “it’s” trials?

      If Indonesia, a relatively poor country recently freed from 53 years of USA backed military dictatorship, can prosecute, conduct competent trials and execute terrorists at its own expense, then why can’t the USA do the same.

      Oh I forgot, as Madame Albright once told us, the USA is the world’s only Indispensable Superpower.

      So what do we have here – a Failed Indispensable Superpower State – even Marx didn’t envisage that.

  38. To me, the elephant in the room is that al-’Awlaqi was in Yemen (and not say, on the high seas) when he was attacked and killed. He therefore fell under the legal jurisdiction of that country (or perhaps some portion of it if its borders contain more than one de facto state).

    What was the legal status of the American drone operators? If they were not acting with the permission of the Yemeni government, then the strike would qualify as an act of war by the U.S. (however reluctant Yemen might be to admit this). If the drone operators were effectively acting as agents of that government, then the question becomes one of whether al-Awlaqi’s civil rights under Yemeni law (such as they are) were sufficiently protected–and the responsibility for this would fall to the Yemeni government–and perhaps, on whether the U.S. forces violated human rights in attacking him. (Here we have to consider not only the attack on him, but the military risk to bystanders.)

    Bin Ladin was in a similar position with respect to Pakistan. As an aside, “going for a weapon” would have been a justifiable response to the unannounced armed invasion of his home–as it turned out, by foreigners acting outside of Pakistanti government sanction (at least that the Pakistanis have been willing to admit). Would a team of Iranian agents be legally justified in shooting, say, American politicians on U.S. soil, on the grounds that resistance was expected?

  39. After some thinking, trying terrorists in absentia contradicts Obama’s multilateralism. The problem is, Europeans do not recognize the death sentence. So, they would not participate and would have to object.

    • No, of course not ….and all those Special Forces types are trained to deliver deep muscle massage, Tai Chi and flowers.

      In Europe ( and here in Australia for that matter) the Courts don’t hand down death sentences but we have plenty of executioners on the payroll and just itching for some work.

  40. Dear Professor Cole

    I get worried when works of fiction carry across into government policy. Tom Clancy in “Rainbow 6″ and Gerald Seymour in “A Deniable Death” both advocate assassination by executive agencies.

    Three points strike me about the drone assassination program.

    1 What level does the assassination program reach down to?

    At a million dollars a missile you cant really afford to knock off the ordinary Ahmed and Abdullah so some sort of Cost Benefit Analysis must apply. Does the lower level only qualify for a couple of hit men and an inquest covered by the Official Secrets Act? Using Hellfire missiles against a cottage in Northumbria would not be acceptable.

    2 Once Assassination from the (so far) impregnable drone becomes the norm, people will seek a means to retaliate. If you can’t hit the drone then US tourists and business people are the obvious targets. One wonders just who has Ghadaffi’s SA-24 these days. I take great care to stand outside the field of fire of any attack on the El Al checkin desk at Cairo Airport. (just for the record, I would miss you and your daily reports and homilies if some divot blew you away)

    3 Assassinating the leadership of organisations you are fighting against is the French policy in Algeria. As we know General Massu was so successful that when he was finished there was noone left to negotiate with. In the 21st Century such a technique merely generates a new generation of motivated youngsters to carry on the battle.

  41. The Der Speigel article points to a lot of allegations. What has been proven? Do Americans really trust their government that much? I surely would not!! What would be wrong with trying to arrest the man, no matter how long it took. Imagine the PR coup if the US supreme court could convict one of these high level terrorists in a fair trial. Makes me think they don’t really want to. The Taliban offered to hand over OBL on at least one occasion and the US declined to accept the offer. Why? Fair trials, where evidence can be presented by both sides are the only way to deal with these people.

  42. Bill – You said “he was an unlawful enemy combatant who did not follow the Geneve Conventions on War.” This is true, but the United Stated is committed to follow those Conventions.

Comments are closed.