The Legal Rationale for Whacking Awlaki Is Flimsy

Although the Obama administration’s legal rationale for killing suspected terrorist Anwar al-Awlaki remains classified at a high level, administration officials, under media pressure to justify killing an American citizen without a trial, finally have leaked most of it to the press. Although this is an improvement, unfortunately, this action will probably sate the media’s main interest in any such episode, which is to force whatever administration is in power to say “uncle” and release information so that the media has a story. Whether the actual legal rationale holds water or is preposterous matters less than that some sort of legal rationale exists for yet another chief executive’s usurpation of power and unconstitutional and lawless behavior.

Even a flimsy legal rationale serves the purpose of the major media outlets, which are always beholden to government officials for access to both classified and unclassified government information for their daily stories and therefore must not stray too far from the mother ship in their criticism. The best example of this phenomenon is the media’s refusal, during the George W. Bush administration, to use the words “illegal wiretapping” or “torture” when the policies of that administration blatantly violated U.S. law in the former case and widely accepted domestic and international definitions and law in the latter case.

If the media holds true to form, now that they have uncovered the secret rationale, no matter how specious, for whacking Awlaki, the story will likely slip to the back pages of the papers. Yet what should be big news is that the administration’s legal reasoning is a real stretch.

According to the New York Times, a June 2010 legal memo by the Justice Department justified Awlaki’s killing (with apparent verbal approval by the department’s lawyers in December 2009), despite an executive order banning assassinations, a federal law against one U.S. citizen murdering another, and protections in the U.S. Constitution’s Bill of Rights. The memo evidently asserts that Awlaki was covered under Congress’s post-9/11 authorization to use military force against al-Qaeda. Based on the “war against al-Qaeda” rationale, the memo then apparently dismisses these other annoying legal nitpicks one by one.

According to the administration’s reasoning, the ban on assassinations applies only to killing political leaders during peacetime, not an enemy’s leaders during war. The killing was not “murder” for the same reason: “There’s a war on, for God’s sake!” As for the Fifth Amendment’s restriction on depriving people of life “without due process of law,” the legal reasoning also implies the war justification. The memo said that Awlaki was not entitled to the same due process as a person accused of a crime would have. It evidently cites past court cases that allowed U.S. citizens who joined an enemy’s forces to be tried in military tribunals, just like non-citizen enemies. (The Constitution requires criminal trials for all offenses, including treason [of which Awlaki might be guilty], with the only exception listed for courts martial of U.S. military personnel during war or time of danger; thus military tribunals of the enemy appear to be unconstitutional anytime.)

The problem with all of the above is that the U.S. is not legally at war with Awlaki or his organization, al-Qaeda in the Arabian Peninsula. The post-9/11 congressional resolution authorized the president to use force “against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” However, it has never been alleged that Awlaki had anything to do with the 9/11 attacks, and he is not even a member of al-Qaeda. He is a member of an al-Qaeda affiliate in Yemen that has only a loose association with the main trunk of the group and has not been accused of complicity in the 9/11 attacks.

Neoconservatives, muscular liberals, and even many realist conservatives will then fall back on their tired slogan: “The Constitution is not a suicide pact.” True, but the original conception of the Constitution’s framers, clearly indicated by the debates at the Constitutional Convention, did cover emergency situations when the nation was under imminent attack. Under that rare scenario, the framers clearly envisioned that the president could act in self-defense without getting congressional authorization, but he should ask for that authorization as soon a practicable. All other scenario required prior congressional authorization for the use of force.

Of course, the administration tries to argue that Awlaki was an imminent danger to the United States and cites cases in which the Supreme Court ruled as constitutional actions by the police that put the life of a suspect in danger to reduce imminent danger to innocents — for example, high-speed car chases and shooting a fleeing suspect. Yet the legal memo that justified killing Awlaki was written about 16 months before his death, and the Justice Department’s verbal approval was apparently given almost two years before he was whacked. This belies the government claim that he was an imminent danger requiring emergency action on the part of the executive branch. In fact, many terrorism experts allege that the administration overstated the threat that Awlaki posed to the United States.

Finally, even the memo apparently justified killing a citizen only if he could not be captured alive. Yet American officials waited to strike Awlaki until he was on a road distant from populated areas, thus making a commando raid, such as the one used against Osama bin Laden, much safer to execute. In reality, the administration would probably rather kill suspected terrorists, even U.S. citizens, than bring them to the United States for trial — and Republican criticism — in a year when President Obama has an uphill fight to get re-elected.

A classified kill list based on secret criteria and justifications has no place in a republic, especially America, and is more at home in a dictatorship. Innocent people could eventually be put on such a list without good evidence or recourse. Thus, allowing this presidential usurpation of power to go unchallenged endangers the rights of all Americans.

Author: Ivan Eland

Ivan Eland is a senior fellow at the Independent Institute and author of Recarving Rushmore: Ranking the Presidents on Peace, Prosperity, and Liberty.