Was it legal to kill al-Awlaki without due process, courtesy of drone?
Some will say “who cares? Good riddance.” But they are ignoring the importance of the issue and the possible danger of the precedent, while those who question the mission’s legality are asking a question that is necessary to confront: under what circumstances can a president order the liquidation of an American citizen (or possible former American citizen) without any courtroom procedure, even a military tribunal?
I have some respect for those on the left who were vocally against Bush’s extra-judicial treatment of terrorists and who also are criticizing Obama for his actions. At least they display an admirable intellectual consistency, although I think they’re wrong.
Here’s why, from Kenneth Anderson at the law blog Volokh. Anderson writes:
The government has maintained throughout all this that Al-Aulaqi was deemed a lawful target not on account of his expression of opinions, including calls to violence against the United States and its citizens, but instead on account of his operational involvement in AQAP, in ways going to leadership of an associated force terrorist organization and operational and planning involvement. My view of this targeted killing is straightforwardly, congratulations, Mr. President. What has been visible publicly leaves little or no doubt in my mind that Al-Aulaqi was deeply involved in AQAP in operations, and indeed at the highest levels…
Who? As an international law matter, is Al-Aulaqi a lawful target? The US government sees him as taking part in hostilities, part of the operational leadership of an associated force with Al Qaeda, the AQAP. So, yes, he can be targeted with lethal force — and targeted without warning, without an attempt to arrest or apprehend as a law enforcement matter.
Where? Does it matter that he was in Yemen, and not an “active battlefield” in a conventional hostilities sense? The US government does not accept the idea that the armed conflict with Al Qaeda — or armed conflict generally — is confined as a legal matter to some notion of “theatres of conflict” or “active battlefields” or related terms that have been used in recent years by academics and activist groups. As I understand the US government position, it sticks by the traditional concept of “hostilities,” and that where the hostiles go, the possibility of armed conflict goes too… So the fact that he was present in Yemen does not make him beyond targeting, because he is not present in some “active” battlezone such as Afghanistan.
There’s more in the essay, much more—and I highly recommend reading the entire thing—as well as this draft of an article by Robert Chesney, written before the killing. It all dovetails considerably with my own thought process on the subject (which I wrote before reading any of the legal discussions), here:
Al Qaeda is a foreign-based international terrorist group that has declared war on the US and put its money where its mouth is. So for al-Awlaki, he’s got a combination of factors that distinguish him: member of foreign terrorist organization that declared war on US, foreign residence for years, and participant in killings.
I will add that it is disturbing and troubling that a US citizen (whether or not he effectively although informally renounced his citizenship some time before that) was summarily killed by a drone. But the arguments are strong that in this sort of case it is legally acceptable to have done so, and the practical arguments also make it clear that there was no other way to prevent further attacks on this country by this person. In his draft, Chesney writes on the latter subject (again, his piece was written before the killing):
(i) there is substantial evidence that [al-Alwaki] is planning terrorist attacks, (ii) there is no plausible opportunity to incapacitate him with non-lethal means, and (iii) there is not good reason to believe that a plausible non-lethal opportunity to incapacitate him will arise before harm to others occurs. A second question then arises, however. Must al-Awlaki be linked to a specific plot to carry out a particular attack, or is it enough that the evidence establishes that he can and will attempt or otherwise be involved in attacks in the future without specificity as to what the particulars of those attacks might be? The former approach has the virtue of clarity, yet could rarely be satisfied given the clandestine nature of terrorism. The latter approach necessarily runs a greater risk of abuse and thus perhaps justifies an especially high evidentiary threshold, but in any event it is a more realistic and more appropriate approach (particularly from the point of view of the potential victims of future terrorist attacks).
Fighting international terrorism presents us with a different kind of war. That does not mean we can do whatever we want. But it does mean that the rules need developing and clarifying. I’ll finish with Anderson again:
As to the due process claims, as Robert Chesney notes at Lawfare, the US government does not appear to be taking a blanket position that a US citizen deemed to be a targetable participant in a terrorist group has no due process rights outside of the US in any sense, on the one hand, but neither does it appear to take the position that the vindication of whatever those due process rights are entitles the citizen to merely being subject to an attempt to arrest, including in a remote location in Yemen, and to warning before using lethal force. I don’t think the US government has a worked out position suitable for every case — as seems to me quite appropriate. It is in the process of working out something that is only partly like straight-up armed conflict law and something that is gradually, inchoately emerging as a sort of “state practice” of covert intelligence operations. The working out of those positions is proceeding case by case.