Was the U.S.'s Lethal Attack on Al-Awlaki Legal?
Over on a thread started this morning, there's some debate over the question of whether the attack executed against Anwar al-Awlaki represents the killing of an American citizen by executive order without due process.
An American citizen who makes the mistake of joining the enemy is not legally inoculated from military attack. What is important is not whether someone is an alien or a citizen, but whether they are a member of an enemy conducting hostilities against the United States. Here are three historical pieces of authority:
1.The Civil War. Every confederate soldier was a U.S. citizen, especially under Lincoln's theory that secession was constitutionally impossible. If one could not kill American citizens who had joined the enemy without some kind of judicial hearing or due process, the Civil War would have been unwinnable.
2. Ex Parte Quirin (1942), where the Supreme Court upheld the detention, trial, and execution of German saboteurs, one of whom was an American citizen. The Supreme Court said: “Citizenship in the United States of an enemy belligerent does not relieve him from the consequences.” One of those consequences, of course, is being subject to attack. In World War II, many Americans returned to Germany, Italy, or Japan to fight on the side of the Axis. The courts never required some kind of due process for them.
3. Hamdi v. Rumsfeld (2004), where the Supreme Court upheld the military detention of a Saudi Arabian caught fighting during the Afghanistan invasion of 2001. The Saudi had happened to be born in Louisiana, but left as an infant. “A citizen, no less than an alien, can be part of or supporting forces hostile to the United States or coalition partners and engaged in an armed conflict against the United States.”
- Comment (36)
- · Quote
- · UnfollowFollow (4)
- Pages:
- 1
- 2
Comments:
Jul '10
Re: Was the U.S.'s Lethal Attack on Al-Awlaki Legal?
John Yoo:
1.The Civil War. Every confederate soldier was a U.S. citizen, especially under Lincoln's theory that secession was constitutionally impossible. If one could not kill American citizens who had joined the enemy without some kind of judicial hearing or due process, the Civil War would have been unwinnable.
And you still like Lincoln?
Lincoln thought secession was constitutionally possible; he didn't want it to happen under his watch.
Mar '11
Re: Was the U.S.'s Lethal Attack on Al-Awlaki Legal?
I am glad to hear that aliens and citizens have equal hellfire targeting rights.
Oct '10
Re: Was the U.S.'s Lethal Attack on Al-Awlaki Legal?
Curious, is it not, that the same political party who kills "American citizens" using military drones, fought tooth and tong against the Bush administration for "intercepting" phone calls from the very same "American citizens", and if Awlaki had been captured before January 2009, would have wanted him tried as a civilian in New York.
It's hard to digest the hypocrisy of the left. They are simply unfit to be considered Americans themselves.
Re: Was the U.S.'s Lethal Attack on Al-Awlaki Legal?
On this issue, John and I are as one. The key point to note about the constitutional protections afforded under the due process clause is that they all apply to persons, which clearly include aliens. If we owed some kind of judicial process to Anwar al-Awlaki, then we owe it to those who are not citizens, which means that we can only run missions that capture with a view toward civilian trials, which is unheard of anywhere in the history of war. Nor should we regret this conclusion. Al-Alwaki has taunted the United Statse at every turn and has sworn destruction. Surely it would not be unreasonable to say, if it mattered, that he forfeited any protection that his citizenship status conferred on him.
What should be done here is to congratulate everyone from President Obama on down for not losing sight of the central consideration in these cases. We are not sworn enemies of al-Quada. They are sworn enemies of us. Were they to renounce force, we should, and would, renounce it instantly as well. But the deadly game of war cannot be conducted under two sets of rules.
One only hopes that the same logic would apply with respect to Hamas, Iran and Israel.
Edited on October 1, 2011 at 12:20amRe: Was the U.S.'s Lethal Attack on Al-Awlaki Legal?
I think the strongest precedent would be the Civil War, in that while the U.S. didn't officially declare war or even recognize the CSA, it killed many citizens.
The second isn't the same at all in that we're talking about a trial, which we did not give al-Awlaki. In fact, that's the major point of contention.
The third is about discovering -- in the midst of battle -- that someone is a U.S. Citizen. In the case of al-Awlaki, it was about authorizing a targeted drone strike.
But that first case is compelling -- and I've been arguing the other side. I'm curious whether there's anything more than precedent for defending the al-Awlaki strike.
Also, I'm extremely worried at a sliding definition of what constitutes "enemy." I'm a bit jittery after having been called treasonous by members of Congress this year.
Re: Was the U.S.'s Lethal Attack on Al-Awlaki Legal?
Why?
I was under the impression that citizenship conferred certain privileges ...
Mar '11
Re: Was the U.S.'s Lethal Attack on Al-Awlaki Legal?
I agree with both Professors that an American citizen who has taken up arms against his country has forfeited any protections and needs to be eliminated.
However, I wonder if there is a fixed definition for what constitutes an enemy combatant, or is the decision solely the discretion of the executive? While this case seems fairly clear-cut (although Kevin Williamson disagrees), there certainly seems to be room for mischief if no legal standard exists for killing American citizens without due process.
Sep '10
Re: Was the U.S.'s Lethal Attack on Al-Awlaki Legal?
Seems to me these three cases are slightly off the point. Soldiers in the Civil War were killed on the battlefield during armed conflict: almost all of us would accept that participants in warfare are liable to be killed. The German saboteurs and Hamdi were captured: many of us are uncomfortable with the killing of captives without some kind of process, although the nature of that process may be different in wartime.
But Al-Awlaki presents a different case. He wasn't captured at all. The question is whether or not he should be treated as those Confederate soldiers were, as if he was on the enemy side during a shooting war. The nature of the current conflict is what makes the difference. If you accept we're in a war, and if you accept that Al-Awlaki's role in that war is as combatant, not civilian, then it seems to me inescapable that his assassination is lawful. I do accept both premises, and I'm happy we got him.
Mar '11
Re: Was the U.S.'s Lethal Attack on Al-Awlaki Legal?
Bruce in Marin:
But Al-Awlaki presents a different case. He wasn't captured at all. The question is whether or not he should be treated as those Confederate soldiers were, as if he was on the enemy side during a shooting war. The nature of the current conflict is what makes the difference. If you accept we're in a war, and if you accept that Al-Awlaki's role in that war is as combatant, not civilian, then it seems to me inescapable that his assassination is lawful. I do accept both premises, and I'm happy we got him. · Sep 30 at 3:27pm
Agree completely.
The difficulty I see is this: if our enemy is no longer a state but a loosely-defined, non-state entity, at what point does an American citizen "don their uniform"? Pointing a gun at an American soldier is obviously treason, but does writing an email to Al-Qaeda requesting membership suffice?
Edited on October 1, 2011 at 2:58amDec '10
Re: Was the U.S.'s Lethal Attack on Al-Awlaki Legal?
“One of the most important aspects of the Geneva Convention is the distinction between lawful combatants and unlawful combatants.”
“Unlawful Enemy Combatant” means:
(A) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces);
Unlawful combatants are by definition a few steps ahead of the law. When the current administration entered office, Holder and our historic first Islamic apostate president were hell-bent on entangling their predecessors in a war crimes snare. As a result, they have accomplished nothing in catching up, from a legal point of view, with the innovations of warfare against nationless armed forces comprised of unlawful combatants, whose known country of birth should provide no better of a shield than unknown.
MAJ Nidal Malik Hasan, an al- Awlaki acolyte, arguably stripped himself of Geneva Convention protection the morning of his terrorist attack and while shouting "Allahu Akbar," and firing his FN Herstal Five-seveN pistol was an unlawful combatant disguised in a US Army uniform.
Re: Was the U.S.'s Lethal Attack on Al-Awlaki Legal?
I have a question- when I see the year 1942, I think of FDR. When I think of FDR and the Supreme Court... I get a bad vibe.
Was the Supreme Court's decision in 1942 solid or was it as unprecedented as some other decisions in FDR's reign?
Re: Was the U.S.'s Lethal Attack on Al-Awlaki Legal?
Mollie Hemingway, Ed.
Why?
I was under the impression that citizenship conferred certain privileges ... · Sep 30 at 3:25pm
Citizens do have more rights (and a few more obligations, e.g. draft and trial for treason). But the key differences are these:
This case is on the personal liberty side, and if the alien can be struck down, so too the citizen. It is one of those odd quirks of late that the due process says not a word about war time conditions. Habeas is directed to that issue, but that privilege does not apply to combatants, whether citizens or no.
Oct '10
Re: Was the U.S.'s Lethal Attack on Al-Awlaki Legal?
Let's assume al-Awlaki had been captured, brought back to the U.S., and charged for his crimes. As a U.S. citizen, having never lost his U.S. nationality under 8 USC 1481 he would be vulnerable to prosecution by the IRS for not having filed U.S. income tax returns for all of the years he resided outside the limes of the imperium. Alone, among serious countries, the U.S. regards their citizens as property, and asserts the right to audit and tax all of their income even if they reside abroad and have no financial connection whatsoever with the U.S.
So, I find it rather odd that folks claim that al-Awlaki somehow lost his citizenship and was thus eligible to be murdered by an order of the executive while, under the U.S. code, he remained not only a citizen but a (presumably delinquent) taxpayer.
Edited on October 1, 2011 at 1:25amJun '10
Re: Was the U.S.'s Lethal Attack on Al-Awlaki Legal?
Perhaps because he was a known direct threat to national security and his relationship with one terrorist emboldened him to kill 13 innocent people at Fort Hood and wound 29 others. Al-Awlaki was also encouraging an airline employee in the UK to plant explosives on an airline destined for the United States or see if the individual could arrange for a passenger (with explosives) to board the plane with the intent of causing the destruction of the aircraft presumably over U.S. air space.
And perhaps risking the lives of American servicemen to capture this piece of excrement, who was no doubt surrounded by armed supporters, was considered too high a price for America to pay.
If you're engaged in active war against your own country then you risk being a casualty and you forfeit any rights that law-abiding citizens have...in my most humble, non-legal, non-expert opinion.
Edited on October 1, 2011 at 1:36amMay '10
Re: Was the U.S.'s Lethal Attack on Al-Awlaki Legal?
(1) I see no indication in Professor Yoo's post that he believes Awlaki "lost his citizenship." To the contrary, he is very clear that even citizens are lawful targets of military action when they engage in hostilities against the U.S.
(2) Regarding your concern over Awlaki's tax bill, consider this question: what is to prevent us from both killing him and collecting unpaid taxes from him (or now his estate, I suppose)? He is a citizen after all, and subject to certain obligations (among them paying taxes and refraining from hostilities against the country). Granted, I'd rather spit on his grave than accept any of his property, but I'll take what we can get....
Feb '11
Re: Was the U.S.'s Lethal Attack on Al-Awlaki Legal?
A bad man was killed. Necessary but not something to brag about. Except to discourage the others.
I hope Obama will not make taking out Bin Laden and Anwar al-Awlaki major campaign issues. Obama did his job. Good for him. And now we get to see who takes the place of those two men.
My bet is that there will be others equally bad in the near future.
The war goes on.
Re: Was the U.S.'s Lethal Attack on Al-Awlaki Legal?
I think Bruce hits it on the head by distinguishing the Civil War as a situation where citizens were killed on the battlefield. But I disagree that the less formal nature of the war on terror means that any terror operative is fair game for assassination. Both Bush and (reluctantly) Obama have accepted "war" as the paradigm for the struggle against terror. If it's a war paradigm, then we have to distinguish killing on the field of battle from other sorts of killing. And if we are in a war, and if the Treason clause of the Constitution does not apply to a US citizen who is aiding the enemy, then when would the Treason clause ever apply? The careful requirements in article III for establishing treason would be a nullity if the president could summarily execute anyone he suspects of treason. Let us remember that the Left is obsessed with a narrative that our country is endangered by right wing militia groups, posse comitatus, etc. If the Al-awlaki assassination is lawful then what is to stop Obama from targeting any right wing leader who he considers capable of committing (or even inspiring) violence?
Edited on October 1, 2011 at 3:53amSep '11
Re: Was the U.S.'s Lethal Attack on Al-Awlaki Legal?
I've commented on a couple of other threads, but it's worth repeating.
Pancho Villa.
He was conducting a guerilla war in Mexico--but in 1916, low on funds, he crossed the border and raided the town of Columbus, New Mexico. The Army sent General John Pershing to hunt him down--Pershing spent nine months pursuing Pancho Villa, although he did not capture him. (Pancho Villa was subsequently assassinated in political violence in Mexico.) The Wikipedia article is here.
He was not subject to the Geneva Convention--he was not a member of the uniformed military or navy of a recognized foreign power. He was not a criminal--he was not indicted by a grand jury. Further, he was pursued by the Army--not the U.S. Marshals Service. The Army cannot be used to enforce the law.
Pancho Villa was a brigand--an outlaw. If Pershing had caught him, he'd have killed him. That was the idea.
(It is worth reflecting upon the fact that the Gunwalker scandal essentially involves providing guns to the 21st century successors to Pancho Villa, operating in exactly the same part of Mexico. But I digress.)
Re: Was the U.S.'s Lethal Attack on Al-Awlaki Legal?
What is the standard of proof to declare someone an enemy allowed to be summarily killed?
Is there a tribunal that decides, or is it a deferential standard given to the commander in chief?
May '10
Re: Was the U.S.'s Lethal Attack on Al-Awlaki Legal?
Mendel
The difficulty I see is this: if our enemy is no longer a state but a loosely-defined, non-state entity, at what point does an American citizen "don their uniform"? Pointing a gun at an American soldier is obviously treason, but does writing an email to Al-Qaeda requesting membership suffice? · Sep 30 at 3:36pm
Edited on Sep 30 at 05:58 pm
Article III, Section 3, US Constitution: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort
Works for me...
Oh, by the way, he was doing a lot more than any civilian in Japan or Germany during Allied bombing campaigns. I'm not arguing against the policy of strategic bombing...just saying...
Edited on October 1, 2011 at 4:36am