For the first time ever, Americans learn the United States’ criteria for killing Americans abroad.
The United States’ targeting and killing of Anwar al-Awlaki — a natural-born American citizen — by unmanned drone strike in Yemen in 2011 remains one of the most controversial actions taken under the Obama administration.
It is clear that the U.S. suspected al-Awlaki of collaborating with al-Qaida — alleging that he was a “regional commander” within the al-Qaida infrastructure — and was wary of al-Awlaki’s associations with Nidal Malik Hasan, the Army psychiatrist who killed 13 and injured more than 30 in the 2009 Fort Hood shootings, and Umar Farouk Abdulmutallab, who failed to bomb Northwest Flight 253 in 2009 with plastic explosives sewn into his underwear.
While the intelligence community may have been suspicious of al-Awlaki, and while Congress actively sought to silence him by successfully petitioning YouTube to remove his videos in November 2010, as an American citizen, al-Awlaki had a constitutional right to due process that cannot be delayed or counteracted by his actions or the wishes of the state. By American legal tradition, as an American citizen, al-Awlaki should have been presumed innocent until proven otherwise by a court of law. For these reasons, the deaths of al-Awlaki and his 16-year-old son, Abdulrahman al-Awlaki, by separate Hellfire missile strikes have raised serious questions about whether the administration knowingly violated the Constitution.
On Monday, a declassified version of a memo addressing this controversy was released by the U.S. Court of Appeals for the 2nd Circuit. The New York Times and the American Civil Liberties Union had filed lawsuits under the Freedom of Information Act, challenging the Justice Department’s refusal to disclose an Office of Legal Counsel for the Department of Defense memorandum discussing the criteria for drone strike targeting.
The memo, drafted by then-acting Assistant Attorney General David Barron, relied heavily on the George W. Bush-era Authorization to Use Military Force to justify its arguments.
“[J]ust as the AUMF authorizes the military detention of a US citizen captured abroad who is part of an armed force within the scope of the AUMF, it also authorizes the use of ‘necessary and appropriate’ lethal force against a US citizen who has joined such an armed force,” Barron wrote. “Accordingly, we do not believe al-Aulaqi’s [al-Awlaki] citizenship provides a basis for concluding that he is immune from a use of force abroad that the AUMF otherwise authorizes.”
This presents a large justification problem. The Justice Department’s defense of the targeting of al-Awlaki — as reflected in statements given by U.S. Attorney General Eric Holder in 2012 — assumed that al-Awlaki was directly involved in the planning of attacks against the U.S. and American interests, necessitating an immediate response similar to a police officer using deadly force. In this scenario, due process is met.
“Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. ‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process,” Holder said.
This argument, however, relies on the assumption that an al-Qaida attack on the U.S. or American interests was imminent, that al-Awlaki could not be captured by other means, and that al-Awlaki was actively taking up arms. While a number of captured terrorist suspects had asserted that they were in contact with al-Awlaki or that al-Awlaki “inspired” them, there was little released publicly suggesting that al-Awlaki was anything more than a popular imam who grew increasingly and passionately anti-American and radical in his rhetoric.
Further, as al-Awlaki was killed in Yemen, a country not part of the Iraqi-Syrian-Afghan warzone, and as the Yemeni government is on friendly terms with the American government, a CIA-led team could arguably have extracted al-Awlaki alive — which was the assurance made by the Justice Department. In the December prior to the American strike, the Yemeni government led an unsuccessful military strike on al-Awlaki’s known location.
At the time of al-Awlaki’s death, he was not involved in any insurgency or terror-related action. This has led many to suspect that al-Awlaki was targeted more for what he said than what he did.
“He’s the most dangerous man in Yemen,” a Yemeni official familiar with counterterrorism operations told the Wall Street Journal in 2010. “He’s intelligent, sophisticated, Internet-savvy and very charismatic. He can sell anything to anyone, and right now he’s selling jihad.”
It is known, however, that al-Awlaki secured protection for al-Qaida members with his tribe, the powerful Awlakis, and served as a negotiator between the various tribes and al-Qaida.
Still, the absence of a fair hearing of al-Awlaki’s crimes has prompted accusations that the federal government violated its own rules of engagement and participated in the direct silencing of an American whose speech the federal government disagreed with. The administration’s reliance on secrecy to avoid having to address these issues publicly has given this situation an air of conspiracy and led to wide-ranging calls for increased transparency.
The most pointed example of this is the fact that it took a court order for Americans to get access to the criteria for killing Americans abroad.