American Strike on American Target Revives Contentious Constitutional Issue

by admin on Friday, September 30th, 2011 | No Comments

The Obama administration had long argued that Mr. Awlaki, 40, had joined the enemy in wartime, shifting from propaganda to an operational role in plots against the United States, and last year it quietly decided that he could be targeted for capture or death like any other Al Qaeda leader. It was unclear whether the same formal determination had been made about another radicalized American who may have been killed in the same strike, Samir Khan.

Some civil libertarians questioned how the government could take an American citizen’s life based on murky intelligence and without an investigation or trial, claiming that hunting and killing him would amount to summary execution without the due process of law guaranteed by the Constitution.

With the help of the American Civil Liberties Union, Mr. Awlaki’s father, Nasser al-Awlaki, a former agriculture minister and university chancellor in Yemen, had challenged the administration’s decision to place his son on the kill list, but the lawsuit was thrown out of federal court in Washington.

On Friday, Jameel Jaffer, the A.C.L.U.’s deputy legal director, said the government’s targeted killings violated United States and international law. “As we’ve seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts,” Mr. Jaffer said.

Robert M. Chesney, a law professor at the University of Texas who specializes in national security law, said he believed the killing was legal. But he said it was “plenty controversial” among legal specialists, with experts on the left and on the libertarian right who are deeply opposed to targeted killings of Americans.

The administration’s legal argument in the case of Mr. Awlaki, Mr. Chesney said, appears to have three elements: First, Mr. Awlaki posed an imminent threat to the lives of Americans; second, he was fighting with the enemy in the armed conflict; and third, there was no feasible way to arrest him.

But critics note that the Fifth Amendment to the Constitution states that no American shall be “deprived of life, liberty, or property, without due process of law.” In ordinary circumstances, that requires a trial and conviction before government officials can order the execution of an American.

No public legal process led to Mr. Awlaki becoming, early in 2010, the first American citizen to be placed on the C.I.A.’s list of Qaeda-linked terrorists to be captured or killed. Officials said that every name added to the list undergoes a careful, if secret, legal review. Because of Mr. Awlaki’s citizenship, the decision to add him to the target list was approved by the National Security Council as well.

One complicating factor is that the precedents mainly involve the military detention of Americans who sided with the enemy during World War II, not the killing of Americans in a highly unconventional war. “What’s tricky here is that many people don’t accept that this is a war,” Mr. Chesney said. “I don’t think there has ever been a case quite like this.”

The American-educated son of an American-educated Yemeni technocrat, Anwar al-Awlaki embodied the puzzle of radicalization: How did an American citizen come to call for mass murder, in eloquent English, deftly mastering the megaphone of the Internet?

Mr. Awlaki’s eerily calm religious justifications for violence against his fellow Americans, broadcast and recycled across the Web for years, had a profound impact on a small number of young Muslims in the United States, Canada and Britain. In a score of plots since 2006, investigators discerned Mr. Awlaki as an important radicalizing influence, his written, audio and video sermons stored on hard drives, e-mailed among conspirators and treated as an authoritative clerical imprimatur for their deeds.

At least since 2009, American intelligence officials asserted, he had taken on a more significant role in Al Qaeda in the Arabian Peninsula, the Yemen-based branch of the terrorism network. Notably, they said he had helped recruit and train Umar Farouk Abdulmutallab, the young Nigerian who tried to blow up an airliner headed for Detroit on Christmas Day in 2009 with a bomb sewn into his underwear.

Whatever the details of his hands-on participation in terrorism, Mr. Awlaki left no doubts about where he stood, certainly since November 2009, when he praised Nidal Malik Hasan, the Army major accused of killing 13 people at Fort Hood, as a hero.

The latest issue of Inspire, the slick English-language online magazine that he and Mr. Khan contributed to and may have edited, promised that “coming soon” would be an article by Mr. Awlaki titled “Targeting the Populations of Countries That Are At War with the Muslims.”