Informed Comment

Ken Ballen, author of Terrorists in Love: The Real Lives of Islamic Radicals, writes in a guest column for Informed Comment :

The policy of targeted assassinations and drone strikes as the cornerstone of an evolving U.S. counterterrorism policy carries some short-term tactical benefits but little in the way of lasting strategic success. Rather, the recent deaths of radical cleric Anwar al-Awlaki from an American drone strike and Osama bin Laden from a raid deep inside Pakistan should instead remind us a fundamental fact: the Muslim world is engaged in a broader war of ideas. While the U.S. may have individual victories, if we reduce the thrust of American policy to targeted assassinations, we could well end up stoking the radical flame we are trying to extinguish.

The name of al-Awlaki’s radical Al Qaeda magazine was the source of his power: “Inspire.” And al-Awlaki’s ability to inspire came from waging a holy war for God—where individuals do not matter, only service to the greater cause does. He is now a martyr for that cause.

Over the course of six years, as a former federal prosecutor and investigator, I have interviewed at great length more than a hundred radical Islamic extremists and terrorists. One common theme emerged: they were fighting for their vision of the Islamic faith, where death is simply a means, human dignity a foreign concept, and Heaven the reward. As one Taliban fighter told me: “If I live, I fight against the American infidels for God; if I die I go to Heaven.”

Nearly all the extremists I interviewed were young men between the ages of 18 and 30, with a deep desire to be good Muslims, and highly impressionable to the teachings of al-Awaki and others. But they do not depend on those men.

The ideas of fighting in a holy war for God and their fellow Muslims inspired the Jihadists I interviewed. Not bin Laden or al-Awaki. In fact, of the more than one hundred Taliban and Al Qaeda fighters I interviewed over the course of almost six years, not a single one cited bin Laden as his inspiration to fight.

Other religious Muslims and scholars must counter the ideas of jihad. Indeed, I chronicled many Jihadists leaving the path of violence when exposed to the corruption of the Taliban and Al Qaeda and to a different interpretation of Islam. In Iraq, I have documented how Al Qaeda routinely lied and manipulated vulnerable young men into becoming suicide bombers. Indeed, our greatest weapon against bin Laden would have been to continually re-broadcast the impromptu taping of December 2001 where bin Laden laughed when recounting that some of so-called “muscle hijackers” from Asir in the south of Saudi Arabia never were told they had embarked on a suicide mission until the very end. In Pakistan and Afghanistan, I also interviewed many young Taliban fighters who became disillusioned by the theft of oil and other commodities by Taliban leaders, in alliance with the Pakistani Army and its intelligence agency. Al-Awlaki’s three arrests for the solicitation of prostitutes in San Diego and the Washington, D.C., area would have accomplished more to discredit him than a drone strike.

The role of the United States must be to take a back seat to the wider religious, cultural and political debate occurring throughout the Muslim world. We cannot afford to continually place the U.S. front and center by reducing this struggle to the assassinations of individuals. Our ultimate danger lies not in these men, but their message of extremism. Our ultimate hope lies in the courageous Muslims who have led the path away from the hatred of the radicals. By a policy that emphasizes killing alone, in the end, we may simply harden the resolve of the most recalcitrant.

Ken Ballen is the author of
Terrorists in Love: The Real Lives of Islamic Radicals
(Free Press) (Oct 2011).

Posted in al-Qaeda | 22 Comments

Well, the death panel has nothing to do with universal health care. But apparently it does exist, sited in the National Security Council.

I discussed the assassination of Anwar al-`Awlaqi last Saturday, just trying to reason through the moral, legal and constitutional issues as a layperson. When I got to the end of the posting, I just could not understand how what was done was legal or constitutional, since al-`Awlaqi was deprived of his 6th amendment rights to a trial.

Of course, under the laws of war (e.g. Hague IV), virtually anyone can be killed who is contributing to the war effort. But I still don’t understand how a drone strike by the CIA on a civilian in Yemen, authorized by a civilian body, is part of a war as the word is commonly understood.

A friend suggested that the assassination was authorized under the two executive orders (Ford and Reagan) forbidding assassination, which have a loophole. Assassination is permitted by them if a person is a concrete threat to the United States, i.e., is actively planning an attack on it, and if the president so certifies and “Congress” agrees. My interlocutor suggested that agreement by the Senate Select Committee on Intelligence would be enough to constitute congressional approval.

But now Reuters is reporting that President Obama did not even sign off on the kill order, so that that he could remain politically protected. (If what was done was legal, why would the president have to be “protected”)? Nor does Congress, even a rump Congress in the form of a committee, seem to have been involved. So the loophole in the anti-assassination executive orders did not come into play.

Rather, a secret cell within the National Security Council (an advisory body that reports to the president and is considered within the executive branch of the US government) has drawn up a kill list, and gets an authorizing memo from the Department of Justice.

The grounds for assassinating someone are self defense (under the UN Charter, all member states have a recognized right to defend themselves from attack) and the 2002 congressional authorization for the war on terror.

These two grounds for action, and having the order come from the NSC with Eric Holder’s imprimatur, are extremely troubling. Under the Constitution, a jury should decide if a US citizen has committed treason against the US. The National Security Council isn’t even mentioned in the constitution, and it decides whether to blow an American away, without even the president’s signature?

Moreover, the doctrine, if that is what it is, seems full of holes. If al-`Awlaqi were killed as an enemy officer, then why are the civilians at DOJ and the NSC making the decisions, and why is the order carried out by the civilian CIA?

And, how solid is the intelligence showing that al-`Awlaqi had an operational and not just a propaganda role in al-Qaeda? As good as the intel on Iraq’s mobile biological weapons labs? Who decides how good the intel is, i.e., how solid the charges are?

If the Reuters report is correct, the US government has completely gone off the rails and we now have a black cell inside the NSC that has substituted itself for the constitution, for the courts, and for due process, on the grounds that it is fighting a war against 300 guys in Yemen and 4 guys in Thailand and 90 guys in the Philippines, etc., etc.

Glenn Beck once fantasized that Obama wanted to send drone strikes down on patriots in the Midwest. More craziness, I thought. But what if the NSC decides that objecting to al-`Awlaqi’s assassination constitutes a form of material support to terrorists? Couldn’t they just have a drone directed down onto your house? President Obama, by his cowardice in the face of the National Security State, is actually setting things up so that even Glenn Beck’s conspiracy theories begin to sound not so insane.

Congress and the courts need to intervene here. There are too many laws being broken by the US government, too many questionable assumptions being made, and too many contradictions in official policy for these actions to be considered under the rule of law. A legal framework has to be erected for drone strikes on Yemen and Pakistan, which at the moment are cowboy special operations, if they are to continue, and there should be a transparent Status of Forces Agreement with those countries. Otherwise eventually an American government official is going to end up in the dock at the world court in the Hague. If we are at war with a small asymmetrical organization, some other branch of government has to certify that besides the executive, which typically makes expansive claims about its authority to act. If US citizens are being executed or assassinated, the courts have to be brought in somehow, some way.

Philip K. Dick couldn’t have made this stuff up.

Posted in al-Qaeda, US Politics | 32 Comments

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?

Posted in al-Qaeda, Uncategorized, US Politics | 105 Comments

The al-Qaeda-linked magazine “Inspire” has reprimanded Iranian President Mahmoud Ahmadinejad for indulging in “stupid” “conspiracy theories” because of his stance, repeated at the recent United Nations meeting, that 9/11 was a Bush administration inside job.

When al-Qaeda accuses you of being a conspiracy theorist, you’re really a space cadet.

Incidentally, a far rightwing Muslim fundamentalist and former head of Pakistan’s Inter-Services Intelligence, Hamid Gul, has alleged that al-Qaeda leader Ayman al-Zawahiri has moved from Pakistan to Yemen, and that that country is now the center of gravity of al-Qaeda:

“Former Pakistani intelligence Chief Says Al-Qa’ida, Al-Zawahiri Moved To Yemen
Interview with Lieutenant General Hamid Gul, former director of the Pakistani intelligence Service; by Umar Faruq; in Islamabad –…
Al-Sharq al-Awsat Online
Sunday, September 11, 2011 …
Document Type: OSC Translated Text…

(Faruq) Will the attempt to achieve reconciliation in Afghanistan succeed?

(Hamid Gul) The Americans are making efforts to drive the Taliban Movement to join a coalition government. I think that this is impossible because the Americans want the Taliban Movement to isolate itself from Al-Qa’ida Organization, and this is a wrong idea at present. Al-Qa’ida Organization has a different objective. Al-Qa’ida has set a trap for the Americans in Afghanistan , and now they moved to the Middle East. A broad-based government can be formed in Afghanistan immediately after the Americans leave Afghanistan.

(Faruq) Is there still something hidden from the public concerning the Abbottabad operation in which Usama Bin Ladin was killed?

(Hamid Gul) Certainly. Usama Bin Ladin has died and they have closed the unit that was pursuing Bin Ladin at the CIA headquarters. During the three years in which George Bush (name as published) was in office he did not even mention Usama Bin Ladin. Obama wanted to put an end to the war. He wanted to be a president of peace. They have worked out a plan for our Pakistani people. When they knew that some family members of Usama Bin Ladin were living in Abbottabad, the issue of Raymond Davis (the American CIA agent who killed two Pakistani citizens in Lahore) surfaced, which led to tensions between the CIA Director Panetta and Lieutenant General Shuja Pasha, director of the Pakistani Intelligence Service. This has forced the CIA to announce that it does not trust the Pakistani Intelligence Service, and later, the Americans carried out that unilateral operation.

(Faruq) Have you read the statements of daughters and wives of Usama Bin Ladin that they saw the Americans shooting Bin Ladin at a close range. They made these confessions during the interrogations by the Pakistani Intelligence officials, and the information was then leaked to the media.
(Hamid Gul) These allegations do not deserve comment since I do not believe them at all.

(Faruq) Is Ayman al-Zawahiri, leader of Al-Qa’ida Organization, present in Pakistan or in a tribal area?

(Hamid Gul) I think that he left for Yemen. I do not think that he is in Pakistan. He got married in Bajaur, but I think that the center of gravity of Al-Qa’ida Organization has shifted to the Middle East, to Yemen. We do not have an extensive presence for Al-Qa’ida Organization in Pakistan. We only have 24 persons.

(Description of Source: London Al-Sharq al-Awsat Online in Arabic — Website of influential London-based pan-Arab Saudi daily; editorial line reflects Saudi official stance. URL: http://www.asharqalawsat.com/)”

Posted in al-Qaeda, Iran, Yemen | 9 Comments

I cover questions about Iraq, Afghanistan, al-Qaeda and the Arab Spring in this recent interview at AskM (a program of the University of Michigan News and Information Service)

Posted in Afghanistan, al-Qaeda, Democracy, Egypt, Iran, Iraq, Iraq War, Libya | 5 Comments