Imam Anwar al-Awlaki was not, at least by my own narrow and idealistic definition, a “good man”. Among other plots, he was indirectly responsible for the death of 13 American soldiers at Fort Hood, and was very nearly responsible for the death of scores of civilians through his involvement in the infamous but failed “underwear bomb” incident of Christmas 2009. Due to an American government that, like me, considers him not a “good man”, Awlaki was killed by American forces in Yemen on 30 September, 2011. Or rather, Awlaki was killed in Yemen by American civilian operatives who were elsewhere. A Predator drone, piloted by a CIA agent on the other side of the planet, fired a hellfire missile and destroyed a vehicle carrying Awlaki, as well as Mr. Samir Khan, also a self-described jihadist. There is no doubt that both Awlaki and Khan belonged to al-Qaeda. But more significantly, they both belonged to a much larger, more privileged club – they were American citizens.
Awlaki was dangerous not only because of his ideas, but also because of his ability to spread his ideas in fluent, native English. This made him an attractive voice to the marginalized extremists living in the West – it is no coincidence that he has also been linked to the 2005 bus bombing in London. Following his birth in New Mexico, a childhood in Yemen, and a university education in Colorado, it was apparently a visit to Afghanistan in 1993 led to increasingly radical views. Upon returning to the United States, he allegedly began to raise funds for terrorists and terrorist organizations.
He had been in Yemen since perhaps 2004, where he gained an increasingly higher profile as a radical through his learned use of online media, including social networking. After being on the run for some seven years, he has finally met his seemingly inevitable fate. Reaction to his killing has been mixed; there is no doubt he was a dangerous man and practical arguments can be made for his capture, but how can the United States Administration legally justify killing him remotely, without any option for surrender?
The ability to conduct extrajudicial killings remotely is the most terrifying characteristic of the so-called War on Terror – the war that has redefined the enemy and how they are engaged. The Predator drone is efficient, cost-effective, and relatively foolproof. That is, while it can be shot down like any other piece of military hardware, there is no associated complication of the potential capture or death of a human pilot; the existence of a drone that is downed can be easily denied. Without this relatively new technology, the choice by a state to execute an individual would be markedly more complicated. The ease by which such an execution can now take place makes defining its legality that much more important.
The decision to authorize the CIA to capture or kill a small number of high-value al-Qaeda targets was made after 9/11 by President Bush, and its justification has continued to this day. In March of 2010, the Legal Advisor to the US Department of State, Mr. Harold Hongju Koh, stated that “[t]he United States agrees that it must conform its actions to all applicable law. As I have explained, as a matter of international law, the United States is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defense under international law. As a matter of domestic law, Congress authorized the use of all necessary and appropriate force through the 2001 Authorization for Use of Military Force (AUMF). These domestic and international legal authorities continue to this day.” The AUMF to which Mr. Koh refers is decidedly and unnervingly perfunctory. In its main operational paragraph, it states that “the President is authorized 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.”
It takes a great leap of politically-flavoured logic, and an elephantine dose of assumption, to make the link between al-Qaeda operatives based in Yemen in 2011, and those persons who “planned, authorized, committed, or aided” the 9/11 attacks. It has been argued that Awlaki was in contact with the 9/11 conspirators while he was living in Virginia around the turn of the millennium, but even despite the chillingly broad language of the AMUF, such allegations of casual contact between extremists are a flimsy basis for such use of force. Further, by invoking both the AUMF and international rules of war, the American administration is conveniently covering all of its bases – if it is an individual or a non-state actor, then the AUMF applies. If it is a nation (such as Afghanistan) then it is a matter of traditional war, governed by international norms and treaties such as the Geneva Convention, and the Charter of the United Nations.
Upon receiving the Nobel Peace Prize in 2009, President Obama, arguably elected for his idealistic and inclusive rhetoric, stated that “the world must remember that it was not simply international institutions – not just treaties and declarations – that brought stability to a post-World War II world. …[T]he instruments of war do have a role to play in preserving the peace.” This statement, although debatably true, cannot justify negating and ignoring those same institutions due to the necessity of the instruments of war. That is, it is such instruments of war working in combination with such international institutions that have a role to play in preserving the peace.
In a speech last month, Assistant to the President for Homeland Security and Counterterrorism John Brennan argued that “[s]ome have suggested … we prefer to kill suspected terrorists, rather than capture them. This is absurd … We cannot – and we must not – succumb to the temptation to set aside our laws and our values when we face threats to our security, including and especially from groups as depraved as al-Qaeda.” He further stated that “President Obama has directed that all our actions—even when conducted out of public view—remain consistent with our laws and values.” Finally, he argued that it was lawful to kill “those individuals who are a threat to the United States, whose removal would cause a significant – even if only temporary – disruption of the plans and capabilities of Qaeda and its associated forces.”
This is all fine and good as a statement of counterterrorism policy, but begins to look suspicious and even fall apart when the obvious questions are asked. To what laws were Mr. Brennan referring? To the AUMF? Does that justify the extrajudicial killing of a suspect, let alone an American citizen? To the Constitution, which states that “no person shall be … deprived of life … without due process of law”? Conforming to a law that is patently unconstitutional, or unjust, does not therefore make an action lawful. The execution of any al-Qaeda non-combatant stands upon shaky legal ground. But the execution of Awlaki, an American citizen with a constitutional right to due process was undoubtedly, and simply, illegal.
For those of us who welcomed the election of President Obama, it’s disheartening. For he has set a precedent by which future Presidents may justify increasingly arbitrary actions. As eloquently stated by Jameel Jaffer, deputy legal director of the ACLU “[t]he powers claimed by this President may be used by the next one… and he might be someone less trustworthy.”
(Feature photo courtesy of Defence Images/Flickr, other photos courtesy of Wikimedia Commons)