Anwar al-Awlaki and the Rule of Law

In a flawless, joint operation yesterday, the CIA and US Special Forces killed radical cleric Anwar al -Awlaki, a key Al Qaeda leader on the Arabian peninsula.

Awlaki’s trail of infamy is long.

He was the religious inspiration behind the deadly Ft Hood shootings that took 13 lives in November 2009, as well as the failed Times Square bomber. Awlaki was also responsible for the Nigerian underwear bomber who nearly took down a plane over Detroit on Christmas day, 2009 ,and the failed plan to place bombs on cargo planes last year.

The operation that took him down demonstrates again the highly evolved and lethal efficiency of US forces, a decade after 9-11. Indeed, in response to the unique challenges of fighting a global conflict against non-state terrorist organizations, the US military has ingeniously created an entirely different manner and tools to wage war.

With advanced drones and Special Forces, no terrorist – anywhere – can consider themselves entirely safe. It is a good bet that Ayman al-Zawahiri, Osama bin Laden’s replacement, did not have a good night’s sleep last evening.

And with the death of Awlaki, Americans are a bit safer today than they were yesterday.

But none of that changes the fact that the targeted killing of Anwar al-Awlaki represents a profound constitutional dilemma for the United States, and yet another hypocritical policy contortion for the Obama administration and the American left.

You see, Mr. Awlaki was an American. As such, he was entitled to the rights of an American citizen.

Those rights included, but were not limited to: 

The Fifth Amendment, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…nor be deprived of life, liberty, or property, without due process of law.

The Sixth Amendment, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

And the Eighth Amendment, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

It appears that in killing Awlaki, the US government violated all these rights.

And before readers jump to conclusions, this is not an argument to reform the war on terror or turn it into a toothless law enforcement activity.

However, the simple fact is that the evolution of the American way of war in fighting terror has raised new and consequential issues about targeted killings when it involves American citizens, issues that have not be considered or sufficiently thought through.

What was Awlaki’s crime?

We are obviously aware of his activities, but we don’t officially know what the US government had on him.

Why?

While Awlaki  has been on the US government’s “kill list,” since April 2010, he was never formally indicted in court.

What does that say when even Osama bin Laden and Khalid Sheikh Mohammed were both indicted.

Or, consider this contradiction.

When Awlaki was preaching at a Falls Church, Virginia mosque, federal investigators required a judge’s permission to wiretap Awlaki based on his suspected terrorist ties. But no such judicial permission was required to order to kill him.

When did the rules stop applying to Awlaki?

According to the Wall Street Journal, the Obama administration has asserted that the “laws of war” give the US government the right to target any American who joins a terrorst group or poses an imminent threat, but is out of reach of US authorities.

Indeed, a still-secret finding by the Justice Department provided the rationale for the targeting and killing of Awlaki. That would actually be an interesting document to read  and it is in the national interest that the document be declassified so that all Americans can understand the new power that we have invested in the President.

That is, of course, after the Obama administration gets through explaining the utter intellectual chaos of our policy regarding enemy combatants and detention  that the Awlaki killing puts in stark relief.

Attorney General Eric Holder was inconsolable when his determined efforts to put 9-11 mastermind Khalid Sheikh Mohammed on civil trial in NY fell apart. Holder saw the trial as a showcase for the world community regarding American rule of law, a beacon of our best selves, even though Mohammed was a non-American leader in a terrorist organization that had declared war on the United States and who, himself was the mastermind of its most successful operation.

Indeed, since Gitmo was opened, the American left has been in an uproar regarding the “lawlessness” of US detention and interrogation policy. President Obama expressly ran on a platform that he would undo these policies.

But yesterday, the US military killed an American citizen without due process and you could hear a pin drop.

What kind of upside down universe do we now inhabit that the US government can be so determined to provide legal protections to non-American terrorists, but can so casually order the death of an actual citizen?

We have some serious sorting out to do. It is simply not enough to justify Awlaki’s fate by saying he was an exception because he was a villian, a terrorist or would-be murderer. The US Constitution does not provide for a level of crime after which citizen rights are suspended or nulified. Even someone accused of treason has the right of due process.

But ultimately, this issue is not about detention policy or even Awlaki per se, about whom few tears will be shed.

It is about the power we have now invested in the President, and the consequences of it.

Jameel Jaffer, an ACLU attorney said,”It is a mistake to invest the president – any president – with the unreviewable power to kill any American whom he deems to present a threat to the country.”

Having invested the Executive with such awesome power, what are we going to do when the target is less unanimous?