The Obama administration’s decision to assassinate American citizen Anwar al-Awlaki without any shred of due process sets a very dangerous precedent for executive power in the United States, and is further evidence of President Obama’s complete disregard for both domestic and international law.
How ironic that a former Harvard professor of constitutional law so egregiously and openly defied the U.S. Constitution. The Fifth Amendment explicitly states that “no person shall be […] deprived of life, liberty, or property, without due process of law.” The Sixth Amendment dictates that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State.”
The action may be defended under the controversial Authorization to Use Military Force Against Terrorists, passed right after the 9/11 terrorist attacks, but this resolution is irrelevant in this case, since it only works against people who “planned, authorized, committed, or aided” the 9/11 attacks. There is no evidence that Awlaki was involved with 9/11, and his organization, al-Qaeda in the Arabian Peninsula (AQAP), did not even exist yet in 2001.
And if the justification for the lack of trial is the fact that Awlaki wasn’t in the country, and could not have been extradited, then why not at least have a trial in absentia? He could have been indicted, and if he refused to appear in court, he would have waived his right to habeas corpus.
According to Marjorie Cohn, a professor at the Thomas Jefferson School of Law, “Targeted assassinations violate international law […] even in armed conflict.” The United Nations prohibits intentional, premeditated targeted killings during peacetime. Even during wartime a targeted killing is only legal when it is “militarily necessary,” and directed against a fighter who “directly participates in hostilities.” There is absolutely no evidence that Awlaki has ever participated in or planned any military operations whatsoever.
Top Yemen scholar Gregory Johnsen wrote that “Contrary to what the Obama administration would have you believe, [Awlaki] has always been a minor figure in Al Qaeda,” and is merely “a midlevel religious functionary who happens to have American citizenship and speak English.” Johnsen also wrote that “no one should remain under the mistaken assumption that killing Mr. Awlaki will somehow make us safer” and that he doesn’t think that Awlaki’s death “will in any way be debilitating for the organization.”
Before Awlaki was assassinated, leading Middle East scholar Fawaz Gerges wrote that he “has few followers in Yemen and the wider Arab world,” and that “killing him, in addition to the moral and legal questions involved, would not substantially disrupt Al Qaeda. In fact, it would transform the fugitive preacher into a martyr and would likely further poison Yemeni public opinion against the U.S.”
NYU Law professor and former U.N. Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions Philip Alston said in August, 2010 that the U.S. “has claimed a broad and novel theory that there is a ‘law of 9/11’ that enables it to legally use force in the territory of other States as part of its inherent right to self-defence” and that this “does grave damage to the international legal frameworks designed to protect the right to life” and “threatens to destroy the prohibition on the use of armed force contained in the UN Charter.” Alston points out that “If other states were to claim the broad-based authority that the United States does, to kill people anywhere, anytime, the result would be chaos.“
Journalist and lawyer Scott Horton similarly asks the question: “if it’s okay for the United States to kill al-Awlaki in Yemen, then why wouldn’t it be okay for the Russians to plant a car bomb in a vehicle used by a Chechen leader in London or Vienna, or for the Chinese to drop a bomb on a Uighur in Istanbul or Athens?”
Since there’s no evidence that Awlaki had any sort of operational role within AQAP, he was presumably targeted for his recruitment role. However, as journalist and constitutional lawyer Glenn Greenwald points out, the incredibly robust First Amendment actually gives Awlaki the right to speak out against the United States government, and even to call for violence against Americans. As he writes, “the First Amendment not only protects the mere ‘attending’ of a speech ‘promoting the violent overthrow of our government,’ but also the giving of such a speech. The government is absolutely barred by the Free Speech clause from punishing people even for advocating violence.” A 1969 judicial decision concluded that free speech was allowed unless it calls for “imminent lawless action,” or in other words, giving a specific date and time in the near future, such as inciting a mob to attack a nearby building right then and there. Since none of Awlaki’s distributed videos called for specific, imminent attacks, he was in fact protected by the First Amendment.
Another sad irony is that President Obama, who promised to create “an unprecedented level of openness in Government,” and who campaigned against Bush’s expansion of executive power during the War on Terror, has created a secret panel which clandestinely, exclusively, and without public scrutiny decides which American citizens will be assassinated for their alleged role in terrorism. He has also refused to disclose an alleged Justice Department legal opinion that justifies the killing of Awlaki based on the fact that he had assumed an operational role in AQAP. If there is such robust evidence to justify such an unlawful act, why aren’t they releasing it?
And why are Obama’s so-called “progressive” supporters turning a blind eye to his complete disregard for due process? Didn’t these same people decry the Bush Administration for their expansion of executive power and lack of transparency and accountability? Don’t they turn their noses up and cluck their tongues when Rick Perry brags about how many prisoners he’s executed? Why is this particular disregard for both domestic and international law so different? Would we like to see a President Perry able to exercise such overarching powers, able to kill any American citizen that he and a few advisors deem to be enemies? It’s certainly something to think about.