The al-Alwaki Assassination and Due Process

by Jamelle Nelson

On Friday, September 30, Anwar al-Awlaki, a radical Muslim cleric and leading figure in Al-Qaeda in the Arab Peninsula (AQAP), was killed in a CIA drone strike in Yemen. According to U.S. officials, Mr. al-Awlaki, a native of New Mexico, was linked to several attacks in the U.S., including a 2009 attempt to attack a Detroit-bound flight. Samir Khan, also an American citizen working with Al-Qaeda, was unintentionally killed in the attack. Mr. al-Alwaki’s death was praised by President Obama as a “major blow” to AQAP and a tribute to the intelligence community. Mr. al-Alwaki was an influential preacher of jihad, and his online sermons are said to have inspired the attack at Fort Hood and Times Square bomb plot among others.

While the White House has touted Mr. al-Alwaki’s killing as its biggest counter-terrorism achievement since the death of Osama bin Laden, the government’s operation has generated a whirlwind of responses, both supporting and denouncing, the use of lethal military force by American officials against an American citizen. Among the most prominent legal issues has been whether Fifth Amendment guarantees of due process were violated by the govenment in Mr. al-Awlaki’s killing.

Many libertarians, like Republican presidential candidate Ron Paul, have denounced Mr. al-Awlaki’s killing. While Mr. Paul’s criticisms arise from his dissatisfaction with the lack of evidence provided by the government to prove the specific crime he committed, many civil libertarians have claimed that the killing violated Mr. al-Awaki’s due process rights protected by the Fifth Amendment.

Last year, the ACLU filed a suit on behalf Mr. al-Awlaki’s father Nasser al-Awlaki in federal district court challenging the U.S. government’s authority to target American citizens for killing outside of clearly defined battlefields and without an imminent threat to lives of American citizen’s. The ACLU claimed, inter alia, that the government disregarded the Fifth Amendment, which prevents citizens from being “deprived of life, liberty, or property without due process of law.” Judge John Bates dismissed the case under the political questions doctrine. Judge Bates ruled that courts were not in the position to rule on whether a person was a terrorist whose activities threatened national security and against whom deadly force could be justified.

Somewhat shockingly, even AQAP has released a statement claiming that the U.S. acted unconstitutionally in killing its American members. Of the killings of Mr. al-Awlaki and Mr. Khan AQAP wrote, “[The U.S.] did not prove any crime they committed, they never presented any proof against them from their laws or unjust freedom. Where is the freedom, justice, human rights, and respect of freedoms they boast of?”

An editorial by the New York Times elucidates some of the specific due process flaws many critics find with the killing. These criticisms include that the decision was made entirely within the Executive Branch and that a memo written advancing specific legal arguments in support of killing Mr. al-Awlaki was never presented to Congress or reviewed by an independent judge or panel of judges. The editorial requests some form of independent judicial review, perhaps similar to the Foreign Intelligence Surveillance Court, before an American citizen, or anyone for that matter, is put on an “assassination list”.

Despite the deluge of voices claiming the government violated Mr. al-Awlaki’s Fifth Amendment due process rights, some scholars have argued that no such violation occurred; that the U.S. had legal justification and authority to kill Mr. al-Awlaki. The domestic origins [1] of this claim to authority arise from the Authorization for Use of Military Force (AUMF) a Congressional resolution passed soon after 9/11 that authorizes the President to “use all necessary and appropriate force” against, among others, persons and organizations that aided in the September 11 terrorist attacks. The legality of the U.S.’s action gains further support, according to Kenneth Anderson at Opinio Juris, from its decision to declare Mr. al-Awlaki an operational leader of an Al-Qaeda affiliate that had been involved in plotting terrorist attacks on U.S. soil. The rationale is that this classification permits the U.S. to target Mr. al-Awlaki because he has now entered into an operational role with a group engaged in an armed conflict with the U.S. Mr. Anderson contends that historically, the fact that an American citizen was fighting with a group in an armed conflict against the U.S. has not been relevant.

As far as violations of Mr. al-Awlaki’s Fifth Amendment due process rights, many raise questions as to what exactly due process requires. Benjamin Wittes at Lawfare Blog says, “One must specify what process is due to someone being targeted in a particular circumstance before one concludes that targeting violates due process.” Robert Chesney says that the U.S. might argue that lethal force was compatible with the Fifth Amendment only in this situation because Mr. al-Awlaki was purposefully located so as to make it implausible for Yemen, the host state, or the U.S. to capture him.

Government officials, former and current, say that there is a process by which enemies are placed on the kill or capture list. They claim the approval process involves a subset of members from the National Security Council and lawyers that investigate the review the situation with military input. Of course, this does little to alleviate the problem critics have with the whole process occurring within the Executive Branch.

Recently, the New York Times revealed information it received concerning a legal memo written by the Office of Legal Counsel (OLC) with legal rationales supporting the killing of Mr. al-Awlaki. In regards to the Fifth Amendment’s due process requirements, OLC cites Hamdi and Ex Parte Quirin, to claim that “what was reasonable, and the process that was due, was different for Mr. al-Awlaki than for an ordinary criminal.” The memo also cites several cases that find it constitutional for the police to act in ways that might put a suspect in serious risk of death in order to prevent imminent risk to innocent people. The document goes on to aver that imminent risks include those posed by an enemy leader that continually plots to attack the U.S., even if he is not in the process of launching an attack at the precise moment.

How the many legal issues surrounding Mr. al-Awlaki’s killing will be resolved remains unclear. So far, the White House has refused to officially release the OLC memo explaining its legal rationales justifying the killing, and the courts will likely remain unwilling to submerge themselves into the morass of legal issues surrounding this episode. What is clear is that Mr. al-Awlaki remains as controversial a figure in death as he was during his life.

[1] I specify domestic origins here because the U.S. also justifies its actions using international law, specifically the doctrine of self-defense. This justification stands on somewhat more shaky ground. For present purposes, it is unnecessary to consider the validity of the international justification.