When did it become legal to assassinate Americans?

For the first time, a U.S. citizen is being targeted for assassination as a terrorist. The Washington Post reports that Anwar al-Awlaqi, the New Mexico-born cleric living in Yemen, has been placed on a target list that makes him fair game for assassination by the U.S. military or CIA. One attempt has already been made, and there are bound to be other efforts to kill Awlaqi, an Al Qaeda activist linked to a Nigerian suicide bomber’s plot to blow up an American airliner last December.

Can a U.S. citizen be assassinated without due process? asks Spencer Ackerman. “If citizenship means anything, it means that a citizen can’t be killed because the government uses secret evidence to say he or she is an intolerable threat,” Ackerman writes. He makes a valid point. The Washington Post says the White House gave special approval to kill Awlaqi. But that’s not the same as due process, though I have no idea what sort of due process would be involved in authorizing the assassination of an American.

This is an issue where legality meets practicality. Practicality will win. It has to. In a perfect world, Anwar al-Awlaqi would be charged with conspiracy to commit murder, a warrant issued for his arrest, and he would be detained by law enforcement. But the Texas Rangers can’t get to Awlaqi amid thousands of heavily armed tribesmen in Yemen. Only Army Rangers can, or a Hellfire missile from a Predator drone. Call it a military strike or a covert assassination. It’s the same thing.

When a police officer shoots an armed robber, there is no due process for the robber. Nonetheless, we usually condone the officer’s action because we accept that there are situations where deadly force must be used without the luxury of a court hearing. It’s true that a premeditated assassination is not the same as a him-or-me confrontation like shooting an armed robber. But where do you draw the line? Would it be okay to send Awlaqi to Paradise on a Hellfire missile if the CIA had evidence that he planning another suicide bombing of an airliner? If Al Qaeda knows that American citizens are exempt from assassination, wouldn’t they try to use more Muslim-Americans in their operations?

One solution would be to charge American citizens engaged in terrorism overseas with treason (for which the penalty is death). But what legal defense could a terrorist offer when he does not and cannot know that he is being charged? We would end up with a Star Chamber that condemns Americans in secret.

Perhaps this is what we already have when the White House authorizes assassinations. But I don’t see any other option. Citizenship has its rights, but not the right to blow up American airliners.

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21 Responses to When did it become legal to assassinate Americans?

  1. Michael Roston says:

    My argument would be yes, Congress made an executive decision to assassinate a person identified as supporting al Qaida legal when they passed the AUMF of September 2001 following 9/11. In the memorable and saddening words of Rep. Henry Hyde, then Chairman of the house International Relations Committee, the AUMF’s intent was to ‘clear away legal underbrush’ that prevented such action. Senator Byrd lamented in October 2001 that Congress acted too hastily and should have further debated the AUMF. This is why I argue that we need a new AUMF for our ongoing battle against Qaida and related terrorists.

  2. Michael Peck says:

    Most of us assumed that Congress was authorizing the killing of non-American terrorists. At the time, I don’t think the possibility of Americans joining Al Qaeda was on anyone’s radar at the time. This is something that lawyers will argue over, though there would no question if an American-born Taliban were to shoot at American soldiers during a firefight, lethal force could be used.

    As I said, the rights of citizenship don’t include the right to join terrorist groups. However, there should at least be an explicit policy that broadly lays out the conditions under which Americans be assassinated. Does there need to be a higher standard of evidence to target an American citizen? Does the White House need to authorize each assassination?

    • Michael Roston says:

      I’m not sure how anyone’s assumptions lined up with the secret memorandum issued by Bush – I don’t know what’s in it so I don’t know if it explicitly states that only non-citizens can be targeted. But I wouldn’t put it past the Bush lawyers to do so. When you consider their points on why the Geneva Conventions are no longer applicable (i.e. al Qaida doesn’t wear a uniform, etc. so they are unlawful enemy combatants), I’m guessing their understanding would be that American citizens would be covered by the authorization to use lethal force granted under the AUMF.

  3. andylevinson says:

    Obviously, the white house leaked this…who is the leaker?

    • Michael Peck says:

      The leak could have come from a lot of sources. Perhaps the CIA leaked it so the agency could cover its ass by saying that the White House authorized killing American citizens.

  4. jake brodsky says:

    This isn’t complicated. Here’s the deal: certain activities amount to a renunciation of citizenship. One of them is joining a foreign military that fights against the US.

    My thinking is that, given that Anwar al-Awlaqi has joined with Al Qaida and coordinated attacks against this country, he has renounced his citizenship. This means that any expectation of due process in a civil court of law is moot. If he is targeted on the battlefield overseas, so be it. If he is captured, he can face a military tribunal as an enemy combatant.

    The Obama administration has every legal reason to target this traitor. He is not a US citizen any more.

  5. Gotta love the real world huh? On impulse I hate it. Assassination just doesn’t mesh with the moral high ground we as Americans are so quick to claim. At the same time I understand the concept of dirty hands, dangerous people, and unusual circumstances. For me, what it has to ultimately boil down to is how much I trust national security and law enforcement organizations to make the right choice every time. Our government is as capable of lying and other underhanded schemes to push an agenda as any other. I don’t trust them, and I definitely don’t trust them with the power of life and death over American citizens. Due process is thee for a reason.

    • Michael Peck says:

      Good point, Shawn. If the American government has a policy of assassinating American citizens, then sooner or later there will be a mistake. Perhaps a Muslim-American will visit his relatives in Pakistan and be classified as a terrorist. Mistakes like that shouldn’t happen, but they do. It’s not the first assassination that concerns me, because everyone takes extra care to do it right. It’s the 20th or 50th assassination, when it becomes routine, that concerns me. Still, I don’t see much of an alternative.

  6. Mr. Peck,

    1) With all due respect to Mr. Ackerman, citizenship is completely irreverent to the issues at hand. The sixth amendment says nothing about citizenship. It says…

    “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

    The key term is “the accused”. There is no limitation to that right based on citizenship. Even non-citizens enjoy this right.

    2) The key point is that everyone assumes that Mr. Awlaqi is in fact a terrorist and guilty of these crimes. The simple fact of the matter we have no idea if he has done anything at all along these lines. Remember “Weapons of Mass Destruction” and how Saddam Hussein was an ally of Al Qaeda? What about the infamous “Yellow Cake” that “proved” that Saddam Hussein was attempting to build nuclear weapons? How is any of this any different from any of that? The prosecution made its case to the National Security Counsel. Was there a defense? Of course not.

    One again we have the false dichotomy of surrendering civil liberties for illusionary security.

    • Michael Peck says:

      I agree that the Constitution doesn’t explicitly address the right not to be blown up by a Hellfire missile. But the key point is whether an American citizen can be killed without due process. In that sense, the question of whether Awlaqi is a terrorist is almost irrelevant, since we’re not privy to whatever intelligence the U.S. government has that says he’s a terrorist. If there were due process, then we could see the evidence. But is it practical to conduct a trial for someone in the Yemeni highlands? We can chant “Bush lied about WMD” until we’re blue in the face. But it doesn’t change the fact that there are foreign groups who are out to blow up American airliners. I’m not sure that I’m giving up civil liberties if the U.S. government stops them.

      • Mr. Peck,

        I beg to differ. The question is; can the United States government kill anyone, citizen or not, outside of a state of war, without due process. I would note that there is no state of war currently as Congress, the only duly authorized authority with that power, has not made any such claration.

        Yes, there are foreign groups that are attempting to cause harm to the US. The relevant question is not do these groups exist but has Mr. Awlaqi himself committed any crimes. I could just as well argue that there domestic groups intent on causing harm right here in the United States (e.g. Hutaree Militia). Does that fact give the US Government the authority kill you? Is there any evidence that you belong to the Hutaree Militia, that you actually participated in any of the alleged conspiracies of this group, or that even of all of the above were true, you could be killed without due process.

        The Hutaree Militia members were arrested and charged in court with all due process. No Hellfire rocket was fired at them. Evidence was accumulated, warrants issued, lawful arrests made, and court hearings held. No one fired a Hellfire missile at their Militia HQ.

        You asked; “But is it practical to conduct a trial for someone in the Yemeni highlands?” However your headline reads “When did it become legal to assassinate Americans?”. The question that your raised is legality not practicality. Of course it is not practical (or legal) for the US government to conduct criminal hearing in a foreign country. Lack of practicality does not establish legal authority, the two issues are unrelated.

        It is no argument to say “There is a group attempting cause harm to the US so let us kill that one particular man over there”. The Constitution does not give the government that authority. If you want discuss the practical matters of killing people in foreign countries where the US is not at war that the US government has decided it does not like, start an title a different blog about that.

  7. Michael Peck says:

    I’m not sure what you’re saying. Are you arguing that the U.S. cannot conduct target individuals with military force, or that the U.S. cannot use military force without a declaration of war? The former is debatable, but the latter is certainly untrue.

    Were I a member of the Hutaree Militia, this would be a simple arrest by domestic law enforcement. That’s not an option in the Yemeni highlands. Furthermore, the Yemeni government is also fighting Al Qaeda (or at least pretending to), so declaring war on Yemen as a prelude to attacking Al Qaeda in Yemen wouldn’t make much sense.

    Legality and practicality are not the same, but practicality is a factor in making law. I’m not sure whether the government has the legal authority to assassinate Americans. But I also don’t believe they will be successfully challenged on this. Congress authorized the use of force against those involved in the 9/11 attack, and Al Qaeda fits that description. The legislative – and especially the judicial – branch have traditionally given the executive branch wide latitude to protect the common defense (unlike Uncommon Defense, of course!).

    • Mr. Peck,

      You asked a question in your initial blog that went “When did it become legal to assassinate Americans?”. My answer was “no”. I explained that citizenship is irrelevant to the topic and that the constitution protects all people from unlawful actions by the US Government.

      You keep responding to me saying “Well it is not practical for the US to use lawful methods to apprehend Mr. Mr. Awlaqi. Simply because it is no practical use lawful methods does not make unlawful methods legal.

      If you want to debate “Is it a good idea for the United States Government to illegally kill people in other countries even if they are US citizens”, well then that is the topic of different blog isn’t it? However, the topic you yourself raised is *legality* not *practicality*.

      • Michael Peck says:

        Okay, I see what you’re saying, David. No, I do not believe – though I am not certain of this – that assassinating American members of Al Qaeda is unlawful. I cite practicality because I believe any legal challenge to this will fail because the courts will acknowledge the impracticality of applying due process against Americans waging (or allegedly waging) war against the United States from foreign countries. I could be wrong, but the executive branch has always been given wide powers for using military force.

        I wonder if this argument is moral rather than legal?

      • Mr. Peck,

        No this is very much a legal argument. The Rule of Law does go “Obey the law unless it is inconvenient.” The constitution does not authorize the use of unlawful methods when lawful methods are “impractical”. Laws are not in place when they are practical and to be ignore when impractical.

        The acid test is the “Shoe on the Other Foot” test. If the government of Yemen decided that you were a threat to them, and their version of the NSC came to a “lethal finding” on you, how would you feel about them coming here and killing you without due process or probable cause? That is the basis for all international law. If we can kill people in someone else’s country, why cannot they kill people in ours?

    • John Stewart says:

      Practicality can’t be our only consideration. It was probably practical for plantation owners in the old south to rely on African slaves.
      It is just a terrible precedent for Obama to authorize executing an American citizen without due process. The last time the federal government executed anyone for treason was the Rosenbergs back in the 50s.
      I suppose if Osama bin Ladenn was an American citizen, he could be convicted in absentia and a dead or alive warrant could be issued for his arrest.

  8. ideysach says:

    I enjoyed the post but, I take issue with the final assertion in the post, “Citizenship has its rights but not the right to blow up airliners.” The logic behind that statement seems to be that a citizen gives up his right to due process by committing a heinous crime. Constituional rights are not allotted on that basis. We all have the desire to get rid of the “legal underbrush” in order to reach a just result. But that legal underbrush is why legal results in the US mean something. When the executive branch targets a human for killing without due process, there will always be doubt about whether that killing was just. That doubt plays into the hands of our enemies. Affording someone due process who is hiding in the highlands of Yemen may be difficult or impractical, but I believe it is necessary, moral and constitutional.

    • Hello ideysach,

      I agree with everything you have written. I would add that no one actually knows what crimes Mr. Awlaqi is alleged to have committed much less that there is any evidence to support such allegations. This is straight out of Kafka, there are no charges, evidence, or legal process but Mr. Awlaqi has been found guilty and now faces execution.

      This is of course assuming that this whole thing is not some huge “disinformation” campaign by the US, trying to play some sort of mind games with Mr. Awlaqi and / or Al Qaeda.

  9. Eric Kugler says:

    This is why we are doomed to fail.

    The US is in two wars, with concepts rather than foreign governments. I have said this before, and I will keep saying it until people start listening. You cannot be at war with the taliban, or with al Qaida or with drugs.

    War is a diplomatic state between nations. It is decidedly violent and nasty, but it is a form of negotiations.

    The US is trying to desperately fight a war against what essentially amounts to a bunch of clubs or fraternal organizations.

    Back to the main point, dropping bombs on people we are at war with has a long and quite successful track record in US warfare. Assassinations are not something that the US should engage in, period. They are against the rules of war, and against our rule of law.

    The Constitution (and the Bill of Rights) was written specifically to keep death squads from descending on US citizens who disagreed with the government, no matter how crazed. We are promised certain liberties and freedoms by that document. But it also provides limits and protections against an active government. For over fifty years (since Truman dropped the bomb), we’ve seen a steadily increasing power of the supreme executive, and for 150 years (since the “War of Northern Agression”) we’ve seen a steady rise in the power of the federal government.

    If this man can be captured, he should be tried in an open courtroom and then be hanged for treason. If this man is blown up while hanging around a bunch of militants, problem solved. But by putting his name on an official “Shoot him” list, we make his case stronger and diminish ourselves. If our rule of law is so weak that it can be threatened so much by this one man that we must kill him, we should be reexamining the concept of the rule of law. And if on the other hand, the rule of law is strong enough to take whatever this man is throwing at it, then we need to examine why the government thinks that it can do this.

    Either way, it should not be done. We should not have anyone on any official kill him list, except possibly Osama bin Laden, but even then, I would rather see him tried for 3,000 counts of conspiracy to commit murder and 3,000 counts of murder, not to mention a host of other federal crimes.

    • jake brodsky says:

      “The US is in two wars, with concepts rather than foreign governments.”

      I think you missed the point of military operations: It IS about concepts. There is always some concept both sides seek to implement. It is open warfare when both sides have well defined territories and then decide to use force to achieve those goals. War, as it is classically known, is a diplomatic state as you say.

      However, you’d have to be daft not to realize that there is a continuum of military activities. For example, our country has fired upon pirates on the high seas to defend US interests. It was not against a country. It was to defend US interests. We had goods that we were shipping and they wanted to take those goods by force. Yes, it probably cost us at least as much to shoot these vermin as it would have cost to pay the ransom for the captain of a US ship. However, there is a long term view that by doing this we will deter future operations against US flagged vessels. I believe that most would agree that it was worth the price.

      In a diplomatic sense, the Taliban is not a country. However, it is a military force. Saying that it isn’t a country and that we can not therefore be at war with them is a very feeble argument. Our government has a duty to defend its citizens. What should we do differently? Fight them and not call it war? I think that’s pretty much what has happened.

      Is there a diplomatic component to this? Sure! They want to destroy this country because their religion says we’re evil. I’m not making this up, it comes from their own propaganda published on YouTube. There really isn’t much room to negotiate here, unless you’d like to see this whole country enslaved by their utterly pre-medieval religion.

      And so we’re left with little alternative but to to use military force. I wish it were different. I wish there were room to negotiate. But if we do not take action against the Taliban, they will continue to conduct operations against US interests and territories.

      Our government has a right and a duty to take action against those who attack us. Saying that it is not war and that it must come from a country in order to fight it completely misses the point.

      Oh, and by the way, if you do not understand why it is completely ethical and legal for the President to target a high profile traitor such as Anwar al-Awlaqi, please read my comment above. Mr. al-Awlaqi, by his own initiative and his own actions is no longer a US citizen. Taking him to court would be as ridiculous as taking Kim Jong-Il to court. It’s not going to happen, even if the courts do think they have jurisdiction.

  10. Rob Bickel says:

    Absolultely illegal. The constitution protects US citizens from military force. And the CIA technically cannot assassinate people anyways, and in any exception they cannot assassinate an american becuase of the us constitution.

    as far as saying he waived that when he joined a foreign military.. we threw that out the windows when we called them all unlawful combatants so we could detain and torture them.

    the only recourse here is to address what this is… Treason, and treat it as such.

    Sorry for the lack of jokes, there really isnt anything funny here. Although I am reminded of my Macroeconomics professor prattling on about guns vs butter

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