A few days ago, Charlie Savage wrote an article for the Times reporting on a sub-rosa 50-page U.S. legal memorandum drafted in 2010 justifying the execution of a U.S. citizen without a trial.David Barron and Martin Lederman, the drafters of the memo and both decisive lawyers in the Office of Legal Counsel then, posit that the killing of a U.S. citizen that has never been found guilty by a court of law is compatible with the character of the Constitution if the individual constitutes an eminent lethal threat to innocent Americans and the conditions for his arrest are prohibitive. While no one will dispute that al-Awlaki was the instigator of terrorist attacks against the U.S., I would argue that his arrest in Al Jawf province in Yemen’s northern desert would have been less tasking on a Special Forces unit with air support than fast roping into a fortified multimillion dollar mansion a short distance from a Pakistani military academy in the swanky Abbottabad neighborhood, home to retired senior Pakistani military officers and Internal Security Service agents.
The memo explains that Anwar al-Awlaki, since he’d pledged allegiance and given an operational advantage to a terrorist organization that is actively waging war against the U.S., has abdicated his rights to due process. This argument is supported by numerous interpretations of existing U.S. laws. Immigration and Nationality Act: Act 349, 8 USC 1481 states that a “person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts: attempting by force to overthrow, or bearing arms against, the United States, engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them.”The Constitution authorizes the suspension of habeas corpus in cases of rebellion and when public safety may require it. It wouldn’t be a stretch for the Obama administration to assert that al-Awlaki’s activities amount to a rebellion. The Obama administration can also cite the Authorization For Use Of Military force against terrorists, a resolution passed by congress on September 18, 2001 granting the president the power “to use all necessary and appropriate 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”Still, the judicial process was compromised and the decision to kill al-Awlaki was taken behind the closed doors of the executive branch, unchallenged by public scrutiny. And even if the question were raised to a public debate, and the president consulted with congress, the killing of U.S. citizens based on a self-serving memorandum written by an office that squarely falls within the sphere of influence of the Executive branch would be unbecoming outside of a due process that grants the right to discovery, legal counsel, and a review by a jury of peers.
Al-Awlaki and Samir Khan, also a U.S. citizen, were targeted by two drones remotely operated by the CIA and the Joint Special Operations Command. The death of al-Awlaki, whom the U.S. government paints as a potent propagandist and a linchpin of al-Qaeda operations in the Arabian Peninsula, wraps up years of DoD and CIA clandestine and covert anti-terrorism operations. According to federal law enforcement officials, al-Awlaki was directly linked to Nawaf al-Hazmi, Khalid al-Mihdhar, and Hani Hanjour, three 9/11 hijackers from Saudi Arabia, Umar Farouk Abdulmutallab, the 2009 Christmas day failed underwear bomber, Major Nidal Malik Hasan, an Army psychiatrist who shot and killed thirteen soldiers in Ft. Hood, Texas, and Faisal Shahzad, the failed Time Square bomber. Strangely enough, al-Awlaki also has connections to the U.S. Department of Defense. Shortly after 9/11, he was spotted at the Pentagon. The DoD strongly denied the information when it surfaced. When the 2009 Ft. Hood shooting happened and the pictures of al-Awlaki and Major Nidal were broadcast side by side on national television networks, a low level Pentagon employee recognized him and called the FBI. When it finally admitted to al-Awlaki’s presence in the Pentagon, DoD officials explained that it was part of an unofficial outreach program designed to connect with “…with leading members of the Muslim community.” And therein lies the casuistry. Of all the moderate “leading members of the Muslim community” in the nation, the Pentagon found no better representation than al-Awlaki. In early 2010, the Obama administration added him to a secret “capture or kill” CIA list.
Khan, on the other hand, was not a high value target for the CIA and his death in the operation targeting Awlaki is considered “collateral” by government officials; he was nothing more than the chief-editor of al-Qaeda’s “Inspire,” an English written magazine that accepts contributions from schizoaffective psychotics with an anti-U.S. penchant. While living in Virginia, he was investigated by the FBI for his radical views, but his activities were protected by the First Amendment; he was never charged with a crime. Both individuals, being fluent English speakers, targeted an American audience in an attempt to promote the growth of a U.S. and British homegrown radical Islamic terrorist threat.
There are clear distinctions between Obama’s measured and result-driven strategy against al-Qaeda and Bush’s disastrously unfocused approach. While George W. Bush dismantled Alec Station, a CIA unit specifically tasked to collect on al-Qaeda operations and eliminate its operatives, Obama used the full extent of his authority to mobilize resources and allocate funds to allow the CIA to effectively target the terrorist group and foil its operations. Since he became president, the CIA has achieved “significant milestones;” it has surgically eliminated al-Qaeda key leadership and facilitators and greatly handicapped its capability to project mayhem. But after the killing of al-Awlaki and Khan, there is no denying that a continuum of executive overreach and total disregard for the rule of law between the two presidents is factual. David Barron and Martin Lederman are Obama’s version of Bush’s John Yoo, the drafter of an 81-page paper known as the “torture memo” legalizing the use of torture on detainees. Ironically, during his presidential campaign, Obama advocated the prosecution of terrorists “within the constraints of our Constitution” as an effective tool against al-Qaeda. In an ABC News interview, he commented that the anti-terrorism strategy the Bush administration adopted had “destroyed our credibility when it comes to rule of law all around the world, and given a huge boost to terrorist recruitment in countries that say, ‘Look, this is how the United States treats Muslims’.”
It is incontrovertible that al-Awlaki and Khan actively sought ways to inflict grave harm on innocent civilians. The presumption of innocence in their case would be naive. I concede that global terrorism introduced conditions that fundamentally challenge our laws; it is apparent that our legal system is ill-equipped to deal with terrorists whose criminal activities have been reported by corroborated intelligence collection using sources and methods that should be kept secret in order for them to be effective. But it seems that adding U.S. citizens to a “capture, but mostly kill” list and executing them solely on the imprimatur of the Executive has thrown the nation’s institutions off-kilter. It has set a precedent and gives people the impression that at the whim of a few lawyers, operating within the same secretive grey bubble the Bush administration was so harshly criticized for, the summary execution of a U.S. citizen could be carried out. It’s a slippery slope. Some wonder why we should worry about a legal process at all; the government should drag Major Nidal Malik Hasan and his fellow terrorists, Robert Hanssen, Aldrich Ames, and other traitors out and execute them much like we did al-Awlaki and Khan. If the U.S. government is loath to grant due process to U.S. citizens in such a glancing fashion, unwilling to make an effort to provide security without taking shortcuts and compromising the values of its citizenry, then it should applaud despotic regimes that routinely execute their citizens citing threats to their national security.
The Obama administration needs to focus on reforming the judicial system and prepare it to address cases such as al-Awlaki’s in the transparent fashion we’ve grown to be accustomed to. The American people need to readjust their idea of what it means to be a U.S. citizen. It is more than an administrative status bestowed upon some by virtue of birth and granted to others at the conclusion of a lengthy immigration process. To be a U.S. citizen, to me at least, means to embody the spirit of the constitution and the principles upon which this country was founded, to nurture civic virtue and ensure that our actions are driven primarily by the well-being of our communities and the upholding of our institutions, to guarantee fair and impartial administration of justice for all Americans, to dissent, but to abide by the law and respect the process. It is after all our laws and democratic processes that make us feel special. President Obama, during his address at the CIA headquarters, expressed it best: “What makes the United States special and what makes you special is precisely the fact that we are willing to uphold our values and our ideals even when it’s hard, not just when it’s easy; even when we are afraid and under threat, not just when it’s expedient to do so.” Amen!
A. T. B. © 2011