American Jihadist’s Haven May Be U.S. Courtroom: Ann Woolner
If any American deserves to be killed by his own government when far away from a traditional battlefield, it is the U.S.-born radical cleric Anwar al-Awlaki, assuming certain allegations are true.
Known for English-language Internet sermons urging jihad on Americans, al-Awlaki has crossed the line from propagandist to become a leading al-Qaeda operative, authorities say.
They see his hand in the failed airline bombing in Detroit last Christmas and in the murderous shootings six weeks earlier at Fort Hood in Texas. They have linked him to the would-be Times Square bomber and say he advised and helped 9/11 hijackers get money and shelter.
“Mr. Awlaki is a terrorist who’s declared war on the United States,” CIA Director Leon Panetta said in a television interview in June.
President Barack Obama’s administration earlier this year authorized his killing, according to news reports, by adding his name to a secret list of military enemies of the U.S. He is one of the first if not the first American citizen to make the list.
So somewhere over remote areas of Yemen, where he is believed to be hiding, U.S. Predator drones are searching for al-Awlaki, an American born in New Mexico.
The U.S. Constitution grants citizens certain rights including one so essential it shouldn’t need repeating: officials can’t take your life without first charging and trying you. Do all constitutional rights follow you wherever you go, whatever you do? Some do, some don’t.
Americans Abroad
Does an American abroad, who isn’t on a battlefield fighting fellow Americans, have the same protection as he does at home not to be killed by the government? Under what circumstances would such a killing be legal? Who gets to draw up the rules?
Those are the questions posed by a lawsuit filed this week by two civil liberties group on behalf of the cleric’s father against Obama and other administration officials.
“Outside of armed conflict, both the Constitution and international law prohibit targeted killing except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury,” the suit says.
It asks the court to declare illegal the targeted killing of U.S. citizens except under those narrow circumstances and to enjoin the government from pursuing that step against al-Awlaki.
If al-Awlaki were on U.S. soil, the government could try him for treason and, after winning conviction, execute him.
Dual Citizenship
But he isn’t here and isn’t under indictment, unless there’s one under seal. At any rate, Yemen officials have said they wouldn’t extradite him even if he were charged in the U.S., as al-Awlaki also holds Yemini citizenship.
Nor is he in a combat zone, unless the whole world is a battlefield. (More on that in a minute.) The U.S. and Yemen aren’t at war. American troops aren’t fighting the enemy there. Yemen officials say they are looking for al-Awlaki, too, and would try him domestically for any crimes.
So the question this poses is whether the Constitution protects American citizens allegedly engaging in treason from being killed by their own government when outside the U.S. and outside official combat zones. Can they be shot down in the streets of Paris?
Extra-judicial killings are presumed illegal under federal and international law. You can’t do it to punish someone for past conduct, however murderous or treasonous.
You can’t do it to stave off a future threat unless the danger is imminent, the American Civil Liberties Union and the Center for Constitutional Rights say in the suit they filed on behalf of al-Awlaki’s father.
Secret Rules
And you can’t pick people for targeted killing according to secret rules written by the executive branch alone, with no legislative involvement, the suit says.
After the attacks of Sept. 11, 2001, Congress did authorize the use of military force “against those nations, organizations, or persons” who, in the view of the U.S. president, aided in them.
That’s the authority the Obama administration claims allows it to engage in targeted killing, presumably even of a U.S. citizen. Obama agrees with George W. Bush that the world is our battlefield.
If the court agrees, the government wins the case as well as the green light to target American citizens for death anywhere in the world based on intelligence reports that may or may not be accurate.
‘Great Care’
“Great care is taken” in the use of unmanned drones against al-Qaeda targets “to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum,” U.S. State Department legal adviser Harold Koh said in a speech last spring.
Chances are that the al-Awlaki legal challenge won’t survive initial procedural hurdles. The government can invoke the state secrets doctrine to kill the case. It could challenge the father’s right to sue.
But the case raises tough and important questions worthy of public debate and more openness as to the criteria for becoming a human target.
In the meantime, the CIA will presumably keep up its search for al-Awlaki.
If he wants to be safe, he’d be better off back in the U.S., at least for a while. Here, the government would have to prove his treason to jurors, convince them he deserves to die and then win appeals before putting him to death.
If what authorities say about him is true, and if they’ve got the goods to prove it, he’d still end up dead.
But at least we’d know the rules were followed for an American citizen.
(Ann Woolner is a Bloomberg News columnist. The opinions expressed are her own.)
To contact the writer of this column: Ann Woolner in Atlanta at awoolner@bloomberg.net
To contact the editor responsible for this column: James Greiff at jgreiff@bloomberg.net
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