He's Dead, But Is It Legal?

By William Fisher

Now that U.S.-born Islamist cleric Anwar al-Awlaki, a member of Al Qaeda in the Arabian Peninsula, has been killed by a drone strike in Yemen, human rights groups and legal experts are again debating the central question: Was it legal?

And today, as was the case in previous discussions of this question, the answer seems far from unanimous.

Most of the major human rights groups condemned the killing as an affront to the U.S. Justice system and the values underlying it.

Jameel Jaffer, Deputy Legal Director of the American Civil Liberties Union (ACLU), said, "U.S. airstrikes in Yemen today killed an American citizen who has never been charged with any crime."

He added, "The targeted killing program violates both U.S. and international law. As we've seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts. The government's authority to use lethal force against its own citizens should be limited to circumstances in which the threat to life is concrete, specific and imminent. 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."

Vincent Warren, executive director of the Center for Constitutional Rights (CCR), which had previously brought a challenge in federal court to the legality of the authorization to target U.S. citizen Anwar al-Awlaki in Yemen, agrees.

He said, "The assassination of Anwar al-Awlaki by American drone attacks is the latest of many affronts to domestic and international law. The targeted assassination program that started under President Bush and expanded under the Obama administration essentially grants the executive the power to kill any U.S. citizen deemed a threat, without any judicial oversight, or any of the rights afforded by our Constitution. If we allow such gross overreaches of power to continue, we are setting the stage for increasing erosions of civil liberties and the rule of law."

A prominent national Muslim civil rights and advocacy organization reiterated that the calls to violence made by Anwar al-Awlaki, "have been firmly rejected by American Muslims."

In a statement reacting to al-Awlaki's death, the Washington-based Council on American-Islamic Relations (CAIR) said:

"As we have stated repeatedly in the past, the American Muslim community firmly repudiated Anwar al-Awlaki's incitement to violence, which occurred after he left the United States. While a voice of hate has been eliminated, we urge our nation's leaders to address the constitutional issues raised by the
assassination of American citizens without due process of law."

Law professors we contacted are not quite so unanimous.

For example, Marjorie Cohn a professor at the Thomas Jefferson law school, told us, "Targeted assassinations violate international law. Sometimes called political assassinations or extrajudicial executions, they are unlawful and deliberate killings carried out by order of, or with the acquiescence of, a government, outside any judicial framework. They are unlawful, even in armed conflict."

She noted that a 1998 United Nations report concluded that "extrajudicial executions can never be justified under any circumstances, not even in time of war."

Professor Francis A. Boyle of the University of Illinois College of Law described the killing as "a real body blow against the United States Constitution by the Obama administration -- the murder and assassination of a U.S. citizen in gross violation of the Fifth Amendment: 'No person shall ...be deprived of life, liberty or property without due process of law.' The fact that this Mafia-style 'hit' on a U.S. citizen was authorized by President Obama, who is a graduate of Harvard Law School and used to teach constitutional law at the University of Chicago Law School proves how degraded and bankrupt legal education at such elite institutions has become."

But Prof. Peter M. Shane of Ohio State law school takes a different view. He told us, "I don't think there's much real doubt that the killing was lawful. The right to use military force for national self-defense is recognized by Article 51 of the United Nations Charter. The Authorization to Use Military Force enacted in the wake of 9/11 explicitly authorizes the President to use "all necessary and appropriate force against those . . . organizations . . . he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, . . . in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

He concluded: "There is no question that this authorization allows the use of military force against al Qaeda, and it likewise seems beyond dispute that al-Awlaki sought out and played a leadership role in al Qaeda or a co-belligerent organization, continuing to both plan and call for attacks against the United States and Americans. As a citizen of the United States, al-Awlaki may well have been entitled to some form of 'due process' in the determination that he was actually at war with the United States; I imagine that what due process requires in cases like his, however, is a course of fact-finding within the executive branch that is stringent in its rigor and intensity. I would be surprised to learn that such fact-finding had not taken place, especially since the facts justifying his targeting seem clear."

But some of the most forceful rejections of Prof. Shane's position came from two journalists, both of whom are lawyers.

Scott Horton, Contributing Editor of Harper's Magazine, told us that "the manner of Al-Awlaki's death raises a series of important questions about U.S. policies concerning targeted killings or extrajudicial executions."

He continued: "The broader problem is this: if it's okay for the United States to kill al-Awlaki in Yemen, then why wouldn't it be okay for the Russians to plant a car bomb in a vehicle used by a Chechen leader in London or Vienna, or for the Chinese to drop a bomb on a Uighur in Istanbul or Athens? The conditions in Yemen and the dysfunctionality of the criminal justice system there would be critical points for a distinction--and it is therefore extremely important for the White House to speak up and explain itself. Covering everything with the curtain of "covert action" only serves to undermine our security in the end if it makes us look capricious or foolish."

And Glenn Greenwald, writing in Salon.com, was even more unshakable in his view that the US had committed an egregious error that would come back to haunt the nation for years to come. He declared, "The due-process-free assassination of U.S. citizens is now reality."

He wrote, "It was first reported in January of last year that the Obama administration had compiled a hit list of American citizens whom the President had ordered assassinated without any due process, and one of those Americans was Anwar al-Awlaki. No effort was made to indict him for any crimes (despite a report last October that the Obama administration was 'considering' indicting him)."

He continued: "Despite substantial doubt among Yemen experts about whether he even has any operational role in Al Qaeda, no evidence (as opposed to unverified government accusations) was presented of his guilt. When Awlaki's father sought a court order barring Obama from killing his son, the DOJ argued, among other things, that such decisions were "state secrets" and thus beyond the scrutiny of the courts. He was simply ordered killed by the President: his judge, jury and executioner."

Greenwald added, "The U.S. thus transformed someone who was, at best, a marginal figure into a martyr, and again showed its true face to the world. The government and media search for The Next bin Laden has undoubtedly already commenced. What's most striking about this is not that the U.S. Government has seized and exercised exactly the power the Fifth Amendment was designed to bar ("No person shall be deprived of life without due process of law"), and did so in a way that almost certainly violates core First Amendment protections (questions that will now never be decided in a court of law). What's most amazing is that its citizens will not merely refrain from objecting, but will stand and cheer the U.S. Government's new power to assassinate their fellow citizens, far from any battlefield, literally without a shred of due process from the U.S. Government."