Obama Administration Justified in Targeted-Killing

Jared Miller

Jared Miller, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Anwar al-Awlaki (Awlaki) is dead. Before September 29, 2011, this leader was relatively unknown to most citizens of the United States. However, Awlaki’s story has quickly developed and been publicized due to America’s demand for instantaneity and aggressiveness from its news sources. Why Awlaki was killed, who killed him, and the nature of his killing was exposed in two days. The covert operations penetrating his life, the intelligence leading to his demise and the subsequent blow to his constituency has been plastered across various print and electronic media. Everything from his religious beliefs, the way he lived his life, schools he attended, and the scope of his marriages are in steady conversation rotation across the country. As these facts continue to come to light, it is Awlaki’s citizenship which will most likely have the most significant impact in the foreseeable future.

Awlaki was an admitted member of al-Qaeda. He had every right to join al-Qaeda and promote the beliefs of his organization. Awlaki had free will to support al-Qaeda and encourage their direction. He routinely expressed his hatred for America and Western Civilization. Awlaki used his radical influence to cause harm and continue a jihadist “holy war” against America.  U.S. military officials have called him a master propagandist and said he had immense ability to harm our country.  Subsequently, his dedication led him to become a supremely powerful figure within their ranks. However, it was Awlaki’s actions, not beliefs, which led to his being targeted. Al-Qaeda’s destructive actions and operational tactics have been widely held as terroristic in America. Their attacks on American soil and around the world have led the U.S. government to classify them as a legitimate threat to our national security. Awlaki’s speeches indicate he knew of al-Qaeda’s extremist reputation and he used his position to perpetuate these actions himself. He publicly praised numerous attacks on the nation and was charged with plotting attacks. President Obama even described Awlaki as the “leader of external operations for Al-Qaeda.”  Awlaki was perceived as such a threat that he was approved for targeted killing by the Central Intelligence Agency (CIA). Naturally, he met the same fate as most do when they are placed on this list.

The death of Awlaki came early Friday morning while he was hopping into a pickup truck.  He was caught in the crosshairs of an armed CIA drone and there was nothing he could do.  His death was carried out in Yemen and has been widely praised by their government. It is broadly speculated that the Yemeni Government helped carry out this military operation. Nonetheless, the U.S. Government has not given the exactness of their intelligence. Yemeni officials have commented that Awlaki was a threat to all and that his death was the direct consequence of his actions.  This rationale aligns with the comments being made by United States officials.  However, there is an increasingly growing underlying conversation being had in America about this military action.  Anwar al-Awlaki was born in New Mexico, making him an American citizen.

The conversation being had is the legality of the U.S. government killing an American citizen without judicial process.  The critics of Awlaki’s killing point to the Fifth Amendment to the Constitution that states no one shall be “deprived of life, liberty, or property, without due process of law.” These critics argue that there was not a single legal process that led to Awlaki becoming the first U.S. citizen placed on the CIA’s targeted killing list. They argue that this is America and in America actions such as these have to be fulfilled through a legal process. Further, critics point to the potential precedent this targeted listing and killing imposes. It is believed this opens the door to expanded executive authority to the killing of Americans. The American Civil Liberties Union’s (ACLU) Deputy Legal Director Jameel Jaffer said, “It is a mistake to invest the President — any President — with the unreviewable power to kill any American whom he deems to present a threat to the country.” Decriers say Awlaki’s murder goes against the framework of our country and has severely eroded the power of the judiciary.  The ACLU filed a lawsuit last year challenging the constitutionality of adding an American citizen to the targeted killings list. The lawsuit was dismissed and the federal judge noted that Awlaki had shown no interest in pursuing a claim in a U.S. justice system “he despised.” However, these conflicting views on the legality of the targeted killing of Americans has not been limited to the parties involved in litigating the preceding laws.

Presidential candidate Ron Paul has even expressed skepticism. He stated U.S. leaders must analyze “assassinating American citizens without charges” even if they do have strong terrorist ties and affiliations. Individuals with similar views of Ron Paul and the ACLU argue that there is no nexus between Awlaki’s actions and superseding the constitution. It is clear that he was implicated in various terrorist acts around the world, but Awlaki never was convicted in an American courtroom. It is this point that is fueling the debate. The critics of the killing argue that the Fifth Amendment requires a trial and conviction in court in order to kill any American citizen.

A quick resolution to this debate seems bleak since no real precedent exists.  Members of the legal community have tried to compare it to the detention of Americans who sided with our enemies in World War II. The precedent established by the actions taken in that point in history is unlikely to gain popularity because a lot of people do not accept America’s conflict with al-Qaeda as a real war. Robert Chesney, a law professor at the University of Texas who specializes in national security law, said that he does not believe “there has ever been a case quite like this.” With that said, most people opposed to Awlaki’s killing are not contentious about the circumstances surrounding his death. These people understand that he was a radical man and did not view America in the best light. However, they are worried about the slippery slope his placement on the targeted list has created.

Nevertheless, the Obama administration has heard the critics and has taken a position to rebut them. The Obama administration claims they were justified in placing Awlaki on the CIA’s targeted killing list because of his shifted focus and subsequent actions. They claim he went from a role of propagandist to operationally active during wartime. They point to Awlaki’s influence within the al-Qaeda sector in the Arabian Peninsula and his role in al-Qaeda in developing terrorist plots against America. The administration focused on three elements to support their argument when they rebutted ACLU’s lawsuit. First, they established that Awlaki was an imminent threat to American citizens. They produced evidence of his participation in plots to blow up specific American based airliners and cargo planes. Next, the administration relied upon the fact Awlaki was fighting with the enemy in armed conflicts against American forces. This was said to further his direct threat against America. Finally, and most importantly, the administration pinpointed the fact that they could not find a feasible way to arrest him. Awlaki’s dual citizenship, allegiance of followers, fleeing ability and pure determination to avoid capture made him “a hard target.” A hard target that was inevitably hit.

“If you’re a terrorist, you’re a terrorist,” exclaimed Secretary of Defense Leon Panetta when commenting on Awlaki’s killing. Anwar al-Awlaki was a terrorist.  He was a threat to anyone in this country and anyone whose religious and cultural views did not align with his. His preaching of violence and hate was heard around the world and became more threatening every day. He was just one man, but his influence inspired countless. My views support the officials around the globe acknowledging a safer world without him in it. A stereotype of the al-Qaeda network does not lead me to believe this way. My reasoning comes solely from the words out of his mouth. Awlaki’s destructive words and slant towards violence against America is unacceptable. And I fully agree with the Obama administration legal justification.

It is the federal government’s duty to protect the sovereignty of our nation and provide safety from threats.  Awlaki’s influence and his own hands were an immediate threat to American citizens. He preached for our deaths and took up arms against our troops. His actions were a direct threat against every citizen in the United States and considered treason in the U.S. Constitution (Article 3, §3). The Constitution further signifies that treacherous behavior is punishable by death.  Although Awlaki was not convicted of treason, his words and admittance to crimes made his traitorous stance clear. Furthermore, he was a wanted man and could have turned himself in to clear his name. Awlaki made the choice to elude law enforcement and forgo the judicial process.  America gives any citizen charged with a crime an opportunity to turn themselves in. Clearly, rectifying actions have to be taken when a charged party neglects this right, especially when federal organizations classify this party as a threat. It is true, Awlaki was not given a trial and this seems to cut against the Fifth Amendment. However, the Constitution has to be read and interpreted in the aggregate when the situation warrants. We know of at least three constitutional arguments that arise from Awlaki’s killing. His killing was executed without the exercise of the judicial process. Awlaki was thought to have committed treason. And it is the federal government’s duty to protect its citizens from foreign and domestic threats.

The Obama administration fulfilled their duty by adding Awlaki to the targeted killing list and executed their agenda. Taking away a President’s authority to order someone placed on the targeted killing list would not make America safer. I believe it would impede the national government’s duty to keep its citizens safe. Extreme measures are needed when time is of the essence and threats are imminent. The country elects our leaders to make the hard choices and sometimes they have to be made for our protection. It is a fallacy to demand constitutional protection from threats as an American citizen but chip away at the weapons used to protect us. I am sure the administration would have loved to minimize the Awlaki threat in a more judicially sound way, but CIA drones do not carry handcuffs.











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3 thoughts on “Obama Administration Justified in Targeted-Killing

  1. Mike Rich October 4, 2011 at 7:50 pm Reply

    I am disturbed that a person can be marked for death by government fiat, and that people think this amounts to due process of law. The framers of the Constitution did not envision a scheme in which mere accusation of a crime without the opportunity to hear and rebut the charges against you could lead to a death sentence.

    it is ironic that you mention treason, as treason is the only crime mentioned in the constitution that requires a specific level of proof. Who were the two witnesses who testified against al-Awlaki, and why was he not afforded his constitutional right to confront his accusers? When did al-Awlaki confess in open court. The Constitution defines the crime of treason in Article III. What Article III tribunal heard the charges against al-Awlaki?

    You argue that al-Awlaki could have turned himself it at any time and evaded capture. I ask you if you’ve turned yourself in for every crime you’ve ever committed, and whether your failure to self-report downloading an album illegally entitles the President to mark you for death or imprison you by fiat? The Constitution does not allow our government to gun down a fugitive from justice who poses no immediate threat (arguably met), particularly unless it is necessary for capture (no showing here).

    I can accept as true that al-Awlaki at the very least gave aid and succor to our enemies. I can also accept that in a battlefield situation, the strictures of due process don’t exist. This was not a battlefield situation: this was an execution. al-Awlaki has been convicted of no crime.

    • Karthik Subramanian October 11, 2011 at 12:45 am Reply

      You say “[i]t is the federal government’s duty to protect the sovereignty of our nation and provide safety from threats.” I don’t remember that being defined anywhere. I do remember the oath that President Obama took (and re-took because of CJ Roberts’ flub): “I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” (nb: one can use “affirm” instead of “swear” above. I think only one previous president has done so though, and this has nothing to do with anything.)

      President Obama (and every other Federal Officer’s) duty is not to protect the United States. It is to “preserve, protect, and defend the Constitution of the United States.” As Mike said above, al-Awlaki was not convicted of anything. Furthermore, he was not even indicted on any charges.

      The most maddening thing about this is the circular logic espoused by both the author of this post and the Obama Administration: “If you’re a terrorist, you’re a terrorist!” What does that even mean?

      How about we try the following? “If you’re a terrorist, we will open an investigation, and then we will empanel a grand jury, we will try to get them to indict on 18 USC § 2331, and then we will have a trial. If he is then convicted of terrorism, the judge will sentence him – with input from the (crappy) federal sentencing guidelines – according to 18 USC § 2332, which may include the death penalty. He then will be afforded the same post-conviction rights as any other defendant, including appeal and habeas petitions. He then will be executed by lethal injection.” See Timothy McVeigh for an example of this justice system in action. If al-Awlaki was never captured or arrested, he could not be tried. But honestly, if we could drop a drone bomb on him, we could drop Seal Team Six on him for a forced extraction. See the international legal principle of male captus, bene detentus for justification that even an “illegal” CIA operation to pick up al-Awlaki to bring him home would still make the arrest/arraignment/trial all kosher. Or halal, if you will.

      al-Awlaki gets no appeal. Hell, he never even got to find out _why_ he was on the targeted execution list. He was in a “terrorist” organization that did not exist when the AUMF was passed. He got a f***ing bomb dropped on him by a remote control plane while he was eating lunch. Also, the other guy in the car with him was also an American citizen. These guys were not in the act of firing weapons at American troops or taken out on the battlefield (unless you believe the entire world is a battlefield and anyone anywhere can be taken out at any time for any reason).

      “America gives any citizen charged with a crime an opportunity to turn themselves in.” He was never indicted. He was never convicted. He was never charged. He was just branded a terrorist in the media.

      Without an indictment, let alone a conviction, this looks to me like the Obama Administration dropped a bomb on an American citizen for exercising his First Amendment rights (to say heinous things). The same rationale used by the Obama Administration could be used to drop bombs on the Phelps Westboro Baptist Church (we can only hope), the KKK, the Tea Party, the Occupy Wall Street people, the protesters outside the DNC or RNC every 4 years, the protesters outside the G(n) summits (where n is a positive integer including but not limited to 7, 8, 20).

      How do we “know” al-Awlaki is a bad guy? Apparently it’s because “if you’re a terrorist, you’re a terrorist!” That’s the wrong answer. How do we know someone is a terrorist? The right answer is “because he was indicted, convicted, and sentenced under 18 USC § 2331 et seq.” Any other answer is wrong.

      Even if you trust the Obama Administration to put only really bad terrorists on the kill list, would you trust a Rick Perry Administration to do so? (To be clear, I do not trust the Obama Administration to do this: I only trust the grand jury system and the criminal trial system because that’s what it’s there for.) Would you trust the George W. Bush Administration to wield this power responsibly? Sadly, though I’d trust him with little else, I would trust only Ron Paul to wield this power responsibly – because he would not wield it at all.

      Here’s your concluding paragraph. “[1] The Obama administration fulfilled their duty by adding Awlaki to the targeted killing list and executed their agenda. [2] Taking away a President’s authority to order someone placed on the targeted killing list would not make America safer. [3] I believe it would impede the national government’s duty to keep its citizens safe. [4] Extreme measures are needed when time is of the essence and threats are imminent. [5] The country elects our leaders to make the hard choices and sometimes they have to be made for our protection. [6] It is a fallacy to demand constitutional protection from threats as an American citizen but chip away at the weapons used to protect us. [7] I am sure the administration would have loved to minimize the Awlaki threat in a more judicially sound way, but CIA drones do not carry handcuffs.” [I know this should be block quoted as it is over 50 words, but I don’t feel like HTML tagging my comment, so deal with it.]

      I really want to take issue with every sentence in this paragraph, so I will:
      1 – There should not even BE a targeted killing list. There should be a “we need to capture this dude right now” list, and then after extracting them from Afghani-Yemen-Iraqistan, we indict them on 18 USC § 2331 terrorism charges, we convict them if we prove them guilty beyond a reasonable doubt, and then we sentence them under 18 USC § 2332. That’s what preserving, protecting, and defending the Constitution of the United States looks like. It’s not easy. You follow the Constitution even if it’s the hard thing to do. You let the Phelps clan say what they want. You let al-Awlaki make horrible youtube videos about America the Great Satan. You let the neo-Nazis march through Skokie, Illinois. You let the KKK burn a cross in the middle of downtown Cincinnati. You let people burn flags, even though good men and women died fighting for their rights to burn that flag. You let people make “crush porn” videos that depict horrible acts of animal cruelty. You let You follow the Constitution because it’s the hard thing to do and because it’s the American thing to do. The only time we should kill someone is if the soldiers are following the rules of engagement and have the go ahead to fire. Every other time, we capture, not kill. That’s what we do. Even if they act “primitive” or “savage,” we don’t lower ourselves to their level. We don’t wipe our feet on the Constitution like it’s a doormat. We are *better* than that.
      2 – Why not? Assuming there should be a targeted killing list at all, should there not be oversight or an appeals process to remove oneself from the list or at least to double check? What if they put the wrong Mohammed Atta on the list? Last I checked, Mohammed (or one of its variations) is the most popular name in the world. What ever happened to checks and balances? Should there not be oversight? Even our secret courts have secret appeals – see FISA and the FISC: FISC appeals are appealed to FISCR. Why shouldn’t our secret targeting lists also have oversight and an appeals list checker?
      3 – I don’t really care what you believe. You haven’t given me a whit of proof to make me believe what you believe. I want to know WHY targeting and killing al-Awlaki has made us safer (or not targeting and not killing him with a drone made us less safe).
      4 – What imminent threat was averted? This sounds like “terrorism” as bogeyman to allow the government to do anything. “Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.” – Ben Franklin
      5 – The harder choice would have been to follow the rules and the Constitution. (See my criticism of 1, above.) We elect people to do the right thing in the face of hard times. And dropping a bomb on a guy who said lots of mean things about America on the internet while said fellow was out to lunch (with another American) was not the hard choice. The hard choice would have been to say “our soldiers are fighting for al-Awlaki’s right to say these heinous things. That being said, we are trying to prove his connection to the Fort Hood shootings and the underpants bomber. Once we do, game on.”
      6 – It is only a fallacy if you set your choice up wrong. You are saying that either we can fight terrorism or we can observe the Constitution. That is wrong. We observe the Constitution. Hands down. That’s it. We can fight terrorism within that framework. See 1993 World Trade Center Bombing, the Blind Sheik, Timothy McVeigh and Terry Nichols, Zacarias Mossaoui, the Somali pirate (once he gave up and dropped the gun, we stopped shooting), the Underpants Bomber, the Shoe Bomber, the Fort Hood Shooter as examples of how the Constitution has not gotten in the way of fighting terrorism. We need not choose between fighting terrorism and embracing the rule of law. Anyone who says we have to lacks both imagination and a knowledge of recent history.
      7 – “…CIA drones don’t carry handcuffs…” That’s cute. I guess what you’re saying is that we shouldn’t have used CIA drones and instead should have dropped a Seal Team on him?

      I’m just not sure how much more I can say other than that it’s very easy to justify this if you’re not willing to tell people that there is a hard choice, and the administration eschewed taking it.

      One more thing. Don’t forget that, post 9/11, Anwar al-Awlaki was looked at as a moderate Muslim who could show us the difference between Muslims and their crazies. That’s neither here nor there, but for someone who everyone loved immediately after 9/11 as a relatable English-speaking Muslim who made us only scared of al-Qaeda (and not Islam in general) to have ended up where he did, he must have done something REALLY bad, right?

      Please get back to me when you figure out what that was that he did and have enough proof to indict him. Honestly, if we can indict a ham sandwich without even trying, how little did we have on him other than that his videos were “anti-American?” I don’t know what’s more anti-American than firebombing a guy who currently was shown to have done nothing more than rhetorical (and probably actual) flag burning.

  2. Jared Miller October 30, 2011 at 2:13 am Reply

    Thanks for the input. I really appreciate the ideas and thoughts raised. I will keep my response extremely short because I do not feel as though progress or real understanding can be accomplished on a legal blog consisting of personal beliefs, underlining political elements, the law, a death and opinionated commentary.

    @Mike.. You asked me if I have turned myself in for every crime I have ever committed, and you used illegally downloading albums as an example. The answer is no, I have not turned myself in for every crime I have ever committed. You are right, I would not self incriminate myself for things such as running a stop sign or copying a album. However, I also have not been on the FBI’s most wanted list for these petty crimes. I feel that the context of your argument is misguided based on you comparing illegally downloading albums to working with terrorist organizations and being sought by the federal government. If all crimes were looked at as exact or producing the same repercussions things such as sentencing guidelines and the fluency of plea agreements would not exist. In America the subsequent punishment or situation that criminals find themselves in is directly attributable to the crime they have committed or are implicated in. When the time comes that I am sought by the FBI for running a red light I will surely turn myself in, as Awlaki should have.

    @Karthik…As I was reading your thoughts I came across the sentence “I don’t really care what you believe,” in your critique of my blog post. Well sir, that critique made my feeling towards your post rather mutual.

    Thanks again for the input guys!

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