Was Killing American al Qaeda Cleric Anwar al-Awlaki Legal?

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Ho New / Reuters

The killing of al Qaeda leader Anwar al-Awlaki is another big counter-terrorism triumph for a President once derided for “palling around with terrorists.”  Even by the time SEAL Team Six dispatched Osama bin Laden, the notion that Obama wasn’t up to fighting al Qaeda had, of course, proven comically wrong. (With pals like Obama, who needs Dick Cheney?) Thanks to the awesome power of our unmanned drones, the U.S. has ravaged al Qaeda’s senior leadership in Pakistan, and is now training its sights on offshoot groups in northern Africa and the Arabian peninsula. But the killing of Awlaki, a U.S. citizen, along with another American allegedly involved with al Qaeda, spotlights the way drone strikes may be outpacing our legal, moral and strategic thinking about them.

It’s clear that Awlaki was an avowed enemy of the United States, actively inciting others to inflict harm on Americans, and perhaps inspiring at least one mass killing on our soil. But as civil libertarian absolutists like the Salon blogger Glenn Greenwald note, the government can’t simply execute someone for exercising his Constitutionally-protected right of free speech. Moreover, all U.S. citizens enjoy due process under the Fifth Amendment, and Awlaki was never charged in a court of law. Obama, Greenwald argues, acted as “judge, jury and executioner.”

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Few Americans are likely to share this view, of course, just as no almost one seemed troubled by the bullet to Osama bin Laden’s head in circumstances that arguably did not require his death. But Obama officials are deflecting that complaint today, dishing about classified intelligence which they say shows Awlaki was not just a YouTube inciter but also an operational planner for al Qaeda’s dangerous Yemen branch. And experts on targeted assassination make a strong counter-argument that the Obama administration did not deprive Awlaki of his due process because we had no plausible way of capturing him (and Awlaki chose not to surrender after he was publicly identified as a targeted terrorist last year).

Regardless, the possibly unprecedented assassination of a U.S. citizen by his own government spotlights the grey areas of America’s global campaign against suspected terrorists, which has rapidly expanded beyond Afghanistan and Pakistan to countries like Somalia, Libya and Yemen. That has provoked a legal debate within the Obama administration about the limits of what are, in effect, summary executions based on not-always-reliable intelligence. The State Department’s top lawyer, Harold Koh, has reportedly argued that the U.S. may only act out of clear self-defense, targeting people actively plotting to hit us and whose host nations can’t or won’t do the job for us. His Pentagon counterpart, Jeh Johnson, believes that the members of any group aligned with al Qaeda are fair game, even without evidence of their specific near-term plans to hurt Americans, and if the governments in their home countries aren’t on the case.

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That debate may not bear so directly on the Awlaki killing, which presents a (hopefully) rare set of questions about presumed terrorists who also happens to be Americans. But it’s an occasion for Washington to debate some basic questions about our targeted killing campaign. Maybe it’s time, as  John Bellinger argues, to revisit Congress’s September 2001 authorization of military force in response to the 9/11 attacks and provide clearer legal guidelines for our ongoing counter-terror campaign. And what about the argument that drone strikes, on balance, make us less safe? As the country cheers the demise of a hateful anti-American, it’s worth pausing to consider the implications of America’s high-tech hunt for enemies around the globe.

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