Wired: Danger Room
written by Spencer Ackerman
Friday September 30, 2011
It’s still not confirmed that the U.S. killed Anwar al-Awlaki, the American citizen who spread al-Qaida’s message on YouTube and who bit the dust on Friday in Yemen. But it’s more likely than not. And that raises the question of whether the Obama administration illegally assassinated an American citizen, taking his life without due process of law. Short answer, according to the nation’s leading experts on the law of war: It’s complicated.
Charlie Dunlap says that Awlaki’s American citizenship — he was actually a dual U.S.-Yemeni citizen — isn’t a shield against an attack. Dunlap comes with major credentials: Not only was he the Air Force’s top Judge Advocate General before retiring in 2010 as a two-star general, he coined the term “lawfare” to conceptualize the idea of viewing legal action on a continuum with war, not a departure from it.
“If a U.S. citizen overseas presents an imminent threat, or is a participant in an organized armed group engaged in armed conflict against the U.S. — as the administration seems to be alleging is the case with al-Awlaki — the mere fact that he may also be accused of criminal offenses does not necessarily give him sanctuary from being lawfully attacked overseas as any other enemy belligerent might be,” Dunlap, now a law professor at Duke University, tells Danger Room.
Dunlap’s friend Mary Ellen O’Connell disagrees. And her credentials are just as impressive: She’s the vice chairman of the prestigious American Society of International Law, as well as a professor at the University of Notre Dame. Her argument doesn’t rely on Awlaki’s American citizenship.
“The United States is not involved in any armed conflict in Yemen,” O’Connell tells Danger Room, “so to use military force to carry out these killings violates international law.”
O’Connell’s argument turns on the question of whether the U.S. is legally at war in Yemen. And for the administration, that’s a dicey proposition. The Obama administration relies on the vague Authorization to Use Military Force, passed in the days after 9/11, to justify its Shadow Wars against terrorists. Under its broad definition, the Authorization’s writ makes Planet Earth a battlefield, legally speaking.
But the Authorization authorizes war against “nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” It’s a stretch to apply that to al-Qaida’s Yemen affiliate, which didn’t exist on 9/11. But when House Republicans tried to re-up the Authorization to explicitly bless the new contours of the war against al-Qaida, the Obama administration balked, fearing the GOP was actually tying its hands on the separate question of terrorist detentions.
“It is only during the intense fighting of an armed conflict that international law permits the taking of human life on a basis other than the immediate need to save life,” O’Connell continues. “In armed conflict, a privileged belligerent may use lethal force on the basis of reasonable necessity. Outside armed conflict, the relevant standard is absolute necessity.”
So did al-Awlaki represent an “absolute” danger to the United States? President Obama, in acknowledging Awlaki’s death on Friday morning, didn’t present any evidence that he did.
Still, Dunlap cites two legal precedents in defense of the government’s leeway to kill Awlaki. First is a 1942 Supreme Court case about Nazi saboteurs, known as Ex Parte Quirin.
In that case, the Court found that “U.S. citizenship of ‘an enemy belligerent does not relieve him from the consequences of a belligerency,’” Dunlap says. “In this instance, that ‘consequence’ is being targeted like any other enemy,” regardless of citizenship.
The other is far more recent. Last December, the D.C. federal district court dismissed a lawsuit brought by Awlaki’s father and the ACLU (where, full disclosure, my wife works) to get Awlaki removed from the CIA and the military’s terrorist targeting list. The lower court found that Awlaki did retain an option for due process of law: He could turn himself in and seek to adjudicate his fate at trial. But since Awlaki wasn’t availing himself of the courts, the government had exhausted its reasonable efforts to avoid killing him.
Plus, the court doubted its own ability to properly intervene.
“The court found that the ‘political question doctrine’ — in which the courts refuse to adjudicate certain kinds of issues — applies to al-Awlaki, even though he ‘happens to be a U.S. citizen,’” Dunlap explains. “The court explicitly found that ‘there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is constitutionally committed to the political branches and judicially unreviewable.’”
But shouldn’t Awlaki’s American citizenship count for something? If nothing else, doesn’t it oblige the government to at least disclose why it asserts it can kill an American citizen?
“There may be a political argument for doing so, but it is not presently a legal requirement,” Dunlap says. “As the DC court lays out very well, judges do not see their role as adjudicating who should — or should not — be attacked in an armed conflict. Among other things, they do not see themselves as competent to make essentially military and political judgements of such things as to the adequacy of the supporting intelligence data, the wisdom of the timing of a particular strike, the risk to noncombatants, and so forth. Moreover, I think that no government would want disclose what may be very sensitive material as it might compromise sources and methods.”
Of course, that serves as a very convenient shield for the government.
None of it satisfies O’Connell. “If the U.S. is really in a worldwide armed conflict that began on 9/11, there is no need to defend the killing of individual combatants on the basis of self-defense,” she says, referring to the administration’s interpretation of the Authorization to Use Military Force. But some, including top Obama counterterrorism adviser John Brennan, assert that the U.S. also retains the right to attack outside of a “hot battlefield” because of the United Nations Charter’s recognition of the right of self-defense.
Balderdash, says O’Connell. “That basis does not help either because the Charter permits self-defense against a state that has launched an armed attack on the U.S., and Yemen has not done this,” she says. Her bottom line: “Law enforcement methods are the lawful ones and ultimately the effective and moral methods.”
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