Anwar al-Aulaqi

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.

The Administration’s argument:

Officials said that certain belligerents aren’t shielded because of their citizenship.

“As 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,” 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-Aulaqi’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

29 thoughts on “Anwar al-Aulaqi

  1. What annoys me about the al-Aulaqi hit is that al-Aulaqui *TRIED* to get judicial review of himself being put onto the “kill” list, and the Administration pulled the “National Security” card to quash the case, saying that any evidence that al-Aulaqui actually *was*, like, a leader of al Qaeda, would harm national security if disclosed in a court of law. Without a court hearing, all we know for a fact is that al-Aulaqi was a jerk with a web site. A nasty web site, one that like the Nuremberg Files website run by right-wing nutcase Neal Horsley advocated killing Americans, but still, that’s all we know for sure — that he was a jerk with a web site. Crap, he was even a 9/11 troofer, claiming that 9/11 was pulled off by Israeli agents and the claimed hijackers were just random Muslim names pulled off the passenger rosters. Doesn’t sound like someone who was part of al Qaeda, which was proud to claim credit for 9/11, hmm? But hey, he was annoying, and he was brown, so let’s not worry about that whole “arrest, trial, *then* execution” thingy, let’s go straight to the last, ’cause the government *never* lies and *never* makes mistakes and courts? Naw, no need for that…

    – Badtux the Rule of Law Penguin

  2. I’m unsure, too. I certainly don’t like the broad expansion of executive powers we have witnessed since Dumbya’s reign, and I care even less for it under someone who I expect to do better. I also don’t like terrorism or the encouragement of terrorism.

    That said, if Aulaqi had been in atop a tower shooting at people below, I know he would have been SWAT-teamed in a heartbeat, and the current debate over his civil rights would not have taken place. Was it a substantially different act that took place? That is the question to me.

    If Aulaqi were encouraging a shooter atop a tower, we would more likely be able to arrest him for cheerleading murder. But that would not be a war situation, and we do seem to be at war with Al-Qaeda, in a format that does not lend itself to making arrests without sacrificing soldiers. If Aulaqi’s words were such as to be inciting murder of innocents, then he was knowingly walking into conflict/danger. Are we obligated to capture and try him in the face of certain death for soldiers as a result of his clearly committed acts/speech? One of my former students was buried three weeks ago as a result of an Iraqi IED. I’m not of a mind to sacrifice another one.

  3. I’m also unsure about this, but I sure do wish that people here who make assertions would back up their statements.

  4. I don’t like it. Precedents like these always come back to bite, imagine a President Bachmann, or Perry with this power. But then, these were grown men who, presumably, made conscious decisions to commit treason and renounce the United States. They actively engaged in incitement and I would assume that they would not hesitate in pulling a trigger if they had too. Even here, in this country, not every criminal makes it to a court. A lot are killed in shootouts with police etc. No, these two knew what they were getting into and they knew the consequences.
    But then, having a president sign off on this. This is the rub, and it’s bad. Very bad and that’s the main point.

  5. Re: Authorization, I think they’re referring to the post 9/11 authorization to use force against those who attacked us. Anyone in Al Qaeda could probably be targeted using that authorization.

    I am a bit ambivalent about it. It comes down to the same thing that went on at Guantanemo. We were told that these were people captured “on the battlefield,” and they were “the worst of the worst”. We were lied to then. A lot of them were captured far from any battlefield; many were people caught up in sweeps, or were people who’d gotten turned in for a bounty.

    Well, we hope that they had more information about him than they did about people who ended up getting released from Guantanemo, but let’s face it – I assumed they had more information about biological and chemical weapons in Iraq, because *no one* would be so godawful *stupid* as to invade and possibly be proven wrong.

    Okay, but Obama is not Bush.

    But – a man is dead, and even if he wasn’t guilty of a crime, no one is ever going to care. And that’s not right.

    And… sigh.

  6. I can still see both sides here, and I still have some very mixed opinions and emotions about what happened to al-Aulaqi.

    I don’t like this for obvious reasons – he’s a US citizen, and a non-combatant who mainly was doing proselytizing and propaganda work – from what I understand, though, that point apparently is debatable.

    And this action was approved by the people at the WH and Obama, and was aimed at this specific individual, one who was not “directly” involved in acts of terrorism or war – now, or before. And again, the issue of “directly” is what’s open to interpretation and debate.

    If al-Aulaqi was actively fighting for the enemy on the “battlefield” and had died in the course of some other action, I wouldn’t have any problem with this – those are the risks Al-Alwaki’s taking.

    There were US citizens who actively fought against the US in both WWI and WWII. Not many, and not all willingly, but there were.
    Should we NOT have fought battles, trying to kill the enemy, if we knew there was a US citizen(s) on the other side?

    The only comparison I can think of here is Tokyo Rose.

    There was at least one US citizen, and one Canadian citizen, who did propaganda broadcasts for the Japanese (Tokyo Rose was a generic name given to English speaking women who broadcast Japanese propaganda, and not ONE or TWO specific individuals, necessarily).

    In that time, I think if either was killed in a general air attack, no one would have had any problem with it.

    I might have a problem if FDR or Truman could send a drone to specifically kill this individual.
    What was she doing? Yapping propaganda on the radio.

    As for trying to capture al-Aulaqi, I don’t think wasting lives trying to get him would have been a wise or productive move.

    In the Middle East, we’ve already wasted too much (more) good blood on the stupid idea that we can’t let the good blood already spent there go to waste.

    I think losing more good blood trying to kill bad blood is an equally huge waste.
    And we’ve had enough of that already.

    I suppose if I had to chose, I’ll say I’m against this.

    I think a reasonable rule is that if Little Boots would do something enthusiastically, you should avoid doing it, especially if you’re doing it reluctantly.

    Them’s my $0.02, in case anyone gives a crap.

    And I have been the subject of some heated abuse for my opinion – from both sides of the argument, at other sites.
    Apparently, I’m insufficiently amenable enough to allowing a more unified executive to follow recommendation from his/her “experts” who cite the law, and I’m not damning Obama enough for doing what he did as Bush III.

    I don’t like this, which doesn’t make it wrong – nor does it make it right. And I’m not naive enough to think that Obama is the first President to do something like this – and that doesn’t make it right, either.

    This is an ugly situation, made more possible by Cheney and Bush opening up the bottle and letting out this evil Genii. And I’m not sure how you put torture, and civil/human/legal rights abuses back in there.
    Maybe the fact that I’m insufficiently appalled at this should give me cause for concern. Rest assured, it does.

  7. Just wondering what the opinions would have been if the President wouldn’t have been from our side

  8. If al-Aulaqi was guilty of planning past terrorists attacks, then maybe an attack was justified. Maybe. This things are getting into truly gray areas.

    If al-Aulaqi was simply a propagandist, we may despise him, but do we really want to throw away normal law and impose the death penalty for words?

    Here’s the real problem. Nearly everything the United States has invented in the way of democracy, government, economics, law and other areas of modern life are eventually adopted by others. As just one of dozens of possible examples in today’s world, aren’t we in essence giving the Chinese an excuse to use a drone on the Dalai Lama?

  9. I’m not an attorney, but the man put himself beyond the reach or ordinary law enforcement, so I can see an argument that a military effort was all that was practical.

  10. I don’t see two sides. There is a real possibility that Republicans will take the White House someday. We’ve just yawned and said that it was OK for the president to label a US citizen a terrorist and have him assassinated.

  11. We are a country of laws, not of men or women. We have a constitution. We must live by the precepts that we preach to other countries.

    The man was not indicted, not arrested, he was just summarily executed.

    We are better than that.

    Lots of hateful people in the world. Should we unleash a Hellfire missile on the Westboro Baptist Church, because Fred Phelps says he hates gays? Tempting as the prospect is, we don’t do things that way, we punish people’s actions after they are given a chance to defend themselves.

    One American citizen blasted 168 people, including children, to oblivion. Then we tried Timothy McVeigh, and after convicting him we killed him. That is what justice looks like, no matter how despicable the crime or the criminal.

  12. I buy the administration’s argument. He gave up his right/protection of citizenship by choice.

  13. I am with Swami because I believe that this guy committed treason. Now, the worrying part is that Ann Coulter and others on the right have claimed that all liberals have committed treason; and, no one of any authority has refuted this claim. Thus, it is conceivable that a Republican President and Congress could easily run around the U.S. and shoot us all in our beds or while we are feeding our cats.

  14. At least with Obama I feel like he’s acting with honesty and in good faith..Not like Bush where you couldn’t trust a word out of his mouth. I can’t recount all the lies and deceptions that were fed to the American public within the last decade. The Bush administration partied through credibility to the point where nothing could be relied on as truthful.

    Obama is in a situation where no matter what decision he makes he’s in direct conflict with a theoretically correct answer that’s in conflict with reality..Sort of damned if you do and damned if you don’t.. There is no proper solution. So the best I can do to try to understand whether his actions are right or wrong is to watch to see that he doesn’t alter the facts to explain his actions or attempt to manipulate my understanding.. Remember Jimmy Jeff?

  15. Swami & Bonnie,

    All the info any of us have is that which has been fed to us by the government. If he committed treason, at least indict him.

    I realize that he was in a place where it was impossible to arrest him and bring him to trial.

    But, I stand by my previous statement that we are a nation of laws.

  16. I think anyone living in the Middle East or Africa has got to be pleased to have one less member of the terrorist Al Qaeda syndicate out of commission, and the fact drones are way cleaner than B-52’s. People forget how much misery Al Qaeda and the Taliban inflict on regular, law abiding Muslims in the 3rd World.

  17. Craig – adopt them? Won’t need to. We’ll gladly sell them as many as they can afford to buy – weapons are, after all, one of our primary and most lucrative businesses.

    Drones, unlike more conventional weapons, can be controlled from thousands of miles away – right now, there’s a bunch of people sitting in the Nevada desert doing just that. There’s a lot of desert in the Middle East. We may find ourselves looking back on today’s terrorism as the ‘good-old-days.’

  18. Just wondering what the opinions would have been if the President wouldn’t have been from our side

    I find any targeted assassination of a private citizen troubling for the exact same reasons no matter which “side” the President is on. On the one hand, it’s lawful to kill an enemy soldier on the battleground, and it’s lawful to use lethal force to prevent a criminal suspect from fleeing if the suspected crimes are sufficiently grave. But, this was not a battleground kill, nor was he offered a chance to surrender.

    A better question would be how we’d respond if a foreign power assassinated someone on US soil using air power. We’re engaging in a lot of acts that I think are based on the assumption that no one can complain because our military is too big.

  19. “A better question would be how we’d respond if a foreign power assassinated someone on US soil using air power. ”

    Almost happened last week– the guy with the radio controlled planes.

  20. We were once a country that respected law, those days are gone.
    If Bush was the president,rage from the left would be deafening.
    This practise of extra judicial killing is beyond simply bad.
    Turley has it right, and I’m disgusted by this direction Obama has taken.

  21. Give me a break on “we are a nation of laws” bit. When we start adhering to our laws in a more consistent manner, I will believe it. Also, I am an American Indian and I know how the laws of this country were written to make it okay to murder my ancestors and take my land. I have a high regard for Professor Turley’s opinion; and, I wish he were one of Obama’s advisors. But, he’s not. Nevertheless, I am not going to get overexercised over this situation.

  22. Even Osama bin Laden was indicted, first in 1998, in anticipation of his being captured. The raid in which he was killed was ostensibly a capture or kill raid. Now we don’t even bother with that. The argument that we CAN TRUST OBAMA more than future Republicans with the unilateral power of life and death is irrational and self deceptive. I can understand the argument that Obama at his worst is better than any of the opposition, but it really doesn’t get worse than this.

    Oh wait, it does get worse. We on the left have to pretend that this is an issue that merits thundering silence, or a little off hand commentary, rather than an issue that defines us as a society. Read Dwight Eisenhower’s statement denying clemency to Julius and Ethel Rosenberg (the atomic spies) in 1953 to see what we at least used to think and talk about before executing people.

    • Oh wait, it does get worse. We on the left have to pretend that this is an issue that merits thundering silence, or a little off hand commentary, rather than an issue that defines us as a society.

      Actually, we on the left have discussed it pretty robustly, I would say.

  23. Pretty robust, all right: “maybe some future Congress should come up with something”. There is something: the due process clause of the Fifth Amendment to the Constitution.

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”

    • Jesse Levine — brave words. So if some meth-addled psychopath has a knife to your throat, and the SWAT guys had a clear shot that would kill the perp and save your life, would you yell “don’t shoot! He has a right to a Grand Jury”? I think not.

      Now that we’ve established there are exceptions, we need to clarify what circumstances justify making an exception. Reasonable people are going to disagree where to draw that line. As someone who was in lower Manhattan on 9/11, I appreciate that terrorist attacks really happen in real life, and are not just something that happens on television, and they are very bad. I might be inclined to draw that line in a different place from someone who hasn’t had that experience.

      So, let’s say hypothetically I’m the President, and I know as certainly as anyone can know anything that a U.S. citizen is operationally involved in planning terrorist attacks in the U.S. and poses a genuine threat to many lives, but there is no way take this person into custody without risking the lives of a lot of soldiers, if at all. We might call a grand jury or even try this individual in absentia. But what if doing so would require revealing information that would jeopardize other intelligence operations or even put covert agents at risk? The only people who can see this information must have the highest security clearance.

      I’m not saying that’s what happened with Anwar al-Aulaqi, because such information is not public. Maybe the scenario above doesn’t apply at all. However, if I’m the President, and such circumstances were presented to me, I might order the drone to take the guy out, too. Someone else might not. Anyone who thinks that decision would be easy is a fool. Someone who thinks there is no circumstance ever in which such an order might be a public service, or necessary to national security, is also a fool.

      So, that’s why I’m saying that at the very least someone independent of the White House, but with high security clearance, should review the “hit list” and determine whether the hit is justified. Make it a panel of someones, if you like, and say the decision to go ahead with the hit has to be unanimous. That should satisfy national security needs while seeing to it the President is not misusing his authority to just off people he doesn’t like. It isn’t something that should happen often.

  24. Well, as a long time observer watching our guaranteed sacred inviolable Constitutional rights, and the effects that the war on drugs and the war on terror have had upon them, I’ d be inclined to say that maybe our Constitutional rights should be considered more of a goal to shoot for rather than kid ourselves into believing we’re standing on a foundation of immutable rights.

    Why even a guy looking to score some action with a street walker will have his vehicle/property confiscated without due process. I’m not defending johns, I’m pointing out that a strict interpretation( to the letter) of the Constitution like the founding fathers might have intended has become somewhat of an historical relic.

    If they want you, they’ve got you. Forget about your effing rights!

  25. Yes, brave words written by brave men. You must really recognize the weakness of your argument to build such a flimsy strawman. No one disputes the right to use lethal force to stop a crime in progress or to kill an American citizen on the battlefield.

    You don’t get any street cred from me for being in lower Manhattan on 9/11. As a middle management City employee I helped evacuate City Hall and the Municipal Building. I then worked 20 hour shifts in the Emergency Command Center and went to Incident Command meetings and heard the threat assessments. Later I went to the NYC Law Department where I was Deputy Chief of The World Trade Center Unit. I interviewed witnesses, prepped witnesses for the 9/11 Commission and listened to the unredacted 911 calls for help from victims trapped in the towers. I know better than you the full horror of 9/11. So what? that doesn’t give me any more credibility on this issue than you.

    Your hypothetical is just a regurgitation of the security state talking points and you admit you have no idea of the facts in this case.

    I guess you’re happy with leaving decisions like that in the hands of wise, omnipotent leaders with secret evidence. Of course, all evidence is secret now, since Obama has gone far beyond Bush in using the State Secrets doctrine to deny all access to courts.

    You’re just pretending that there would be an”independent review board” with sufficient security clearance to vet theses actions in advance or that any President would listen. President Perry will love your analysis.

    • Your hypothetical is just a regurgitation of the security state talking points and you admit you have no idea of the facts in this case.

      I wasn’t writing about the Anwar al-Aulaqi case specifically; I was trying to lay out both sides of the argument and consider a real-world solution that balances the needs of national security, which do sometimes require secrecy — you should remember that from the Valerie Plame scandal — with the need to respect the rights of citizens. However, in the Anwar al-Aulaqi situation it appears the only realistic choices were the drone, or nothing.

      Without knowing the facts I can’t say if I would have made the same decision. However, I still say you are a fool to think the decision was easy.

      President Perry will love your analysis.

      Cheap shots get you banned from my site. Goodbye.

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