I’ve been holding off a bit about commenting on the killing of Anwar al-Aulaqi, waiting for more details and also pondering how I felt about it.
Officials said that certain belligerents arenâ€™t shielded because of their citizenship.
â€œAs a general matter, it would be entirely lawful for the United States to target high-level leaders of enemy forces, regardless of their nationality, who are plotting to kill Americans both under the authority provided by Congress in its use of military force in the armed conflict with al-Qaeda, the Taliban, and associated forces as well as established international law that recognizes our right of self-defense,â€ an administration official said in a statement Friday.
I assume the “authority provided by Congress” is the 2003 Iraq War resolution, unless there’s another one I’m forgetting. So I have questions about the legitimacy of that authority.
This guy Robert Chesney, who is a law professor at U of Texas-Austin, says that al-Aulaqi is an operational leader of al-Qaeda involved in planning and directing potential terrorist plots against the U.S. Chesney says even if this is true, he doesn’t see that this strips al-Aulaqi of his 5th Amendment rights.
However, Chesney says,
Rather, I suspect that their view was that deadly force was only compatible with the 5th Amendment in this setting because al-Awlaki was located, purposefully, in a place where neither the host-state government nor the United States had a plausible opportunity to capture him (combined with his asserted operational role and the resultant premise that he posed an imminent threat to life).
Hold on, the civil libertarians might say. We don’t know anything about him except what the government tells us. He should still have been captured and brought to trial. He should be allowed to answer charges brought against him.
To which I might say, if an attempt to capture him would likely cause some of those sent on that mission to lose their lives, then what do you do? If the facts are as they are being presented to us — and I’m not necessarily saying they are — then sending in a drone to take al-Aulaqi out was not necessarily an unreasonable decision. However, was it legal?
Jonathan Turley takes the administration’s argument apart in finer detail. He is not at all happy about this, as you might imagine. Here’s how he says it works:
Because of his high-visibility status, we were informed of al-Aulaqiâ€™s killing. However, nothing in this policy requires a president to be informed of such assassinations and the congressional oversight committees are widely viewed as rubber stamps for intelligence operations. It is not simply a question of whether a president can order such a killing of a citizen (which Bush also previously ordered), but the circumstances under which such an order can be given. Obama put al-Aulaqi on a hit list many months ago. There is no process, however, to secure any judicial review or to satisfy any showing despite over a year of such targeting. These questions remain unanswered because the Obama Administration has been successful in blocking public interest lawsuits seeking judicial review of his assassination list.
I assume the list is secret because the administration doesn’t want to tip the targets off that assassins are coming. At this point, the arguments are circling around each other a bit.
Here’s where I’m coming out — this particular killing may not have been unreasonable. However, I shudder to think of a future President Rick Perry given the same authority. Half the country would have to start living in bunkers.
At some point I’d like to see Congress (although not necessarily the current one) come up with some procedure for independent judicial review of the “hit list,” at the very least. A permission slip from the Justice Department doesn’t work for me.
See also Steve Benen.
Update: Two more opinions at the Guardian —
Against — Michael Ratner
For — Wesley Clark