Why Is It Legal to Kill Anwar al-Awlaki?
In February, the director of national intelligence, Dennis Blair, told a congressional panel that there were certain counterterrorism cases that could involve killing an American citizen. That, he cautioned, required a special process through the National Security Council — for safeguards.
Anwar al-Awlaki is an American citizen, born in New Mexico, and now residing in Yemen, where he repeatedly issues exhortations to murder his fellow Americans. Any court would find him guilty of incitement. He has nebulous connections to al-Qaeda. What a court would say about those connections is uncertain, but courts have tended to give the government the benefit of the doubt in terrorism cases since at least 9/11. But al-Awlaki’s American citizenship entitles him to due process of law should the government seek to deprive him of life, liberty or property. When I asked Karen Greenberg of NYU’s Center on Law and Security whether al-Awlaki could be lawfully assassinated last month, she scoffed, “They can’t do this with al-Awlaki. He is an American citizen, born in New Mexico. They can’t take away his citizenship.”
The Obama administration begs to differ, according to Reuters, The Washington Post and The New York Times. Anonymous administration officials cite secret evidence to say that al-Awlaki’s connections to al-Qaeda affiliates have passed from the incitement phase into the operations phase, and so the CIA has marked him for death. Nowhere in those pieces does the Obama administration explain the legal basis for revoking al-Awlaki’s most basic constitutional right. As I wrote in my piece last month, not even John Yoo made a claim that radical while serving under the Bush administration:
In June 2002, John Yoo, then a lawyer for the Justice Department’s Office of Legal Counsel, assessed that U.S. citizenship was no obstacle to the government detaining a suspected terrorist and providing him with a trial before a military commission. “[T]he President’s authority to detain an enemy combatant is not diminished by a claim, or even a showing, of American citizenship,” Yoo wrote. But even Yoo did not consider the more radical claim of stripping American citizenship from a suspected terrorist for the purpose of legally killing him; and President Obama formally annulled Yoo’s memorandum in an executive order within days of taking office.
The administration may very well be making the correct evaluation of the threat al-Awlaki poses. But 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. Al-Awlaki is certainly exploiting his American citizenship. But CIA spokesman Paul Gimigliano told the Post’s Greg Miller, “This agency conducts its counterterrorism operations in strict accord with the law.” We at least have the right to know the legal basis the Obama administration reached to order the extra-judicial killing of an American citizen, and so I’ll be spending my morning filling out FOIAs.