The legal argument about eliminating Awlaki

Scott Shane in today’s Times discusses the controversy over the targeted killing of Anwar al-Awlaki:

The administration’s legal argument in the case of Mr. Awlaki appeared to have three elements. First, he posed an imminent threat to the lives of Americans, having participated in plots to blow up a Detroit-bound airliner in 2009 and to bomb two cargo planes last year. Second, he was fighting alongside the enemy in the armed conflict with Al Qaeda. And finally, in the chaos of Yemen, there was no feasible way to arrest him.

We also learn that Awlaki was born in New Mexico in 1971, lived in Yemen from age 7 to age 19, then returned to the U.S. for university studies, then left the U.S. for London in 2002, and shortly thereafter returned again to Yemen. Thus 21 of his 40 years were spent abroad, and of the 19 years of his life spent in America, seven of those were in early childhood. If we count his life from the onset of the age of reason, seven, he spent 21 years abroad, all of them in Yemen except for a brief stay in London, and 12 years in the U.S., mainly as a young imam preaching jihad. This is the person that civil libertarians on the left and right call an “American.” In reality, he was never an American, but a member of Dar al Islam who happened to pass part of his life in America.

However, what I’ve just said, while challenging the common description of Awlaki as an American, is irrelevant to the legal issue that is at stake here. If a person’s whole life had been lived in America, and then he started waging terrorist war against the United States from foreign soil, he would be properly treated as an enemy combattant.

Here is the article, to which I’ve added my bolded comments:

September 30, 2011
Judging a Long, Deadly Reach

WASHINGTON—The killing of Anwar al-Awlaki, an American citizen struck on Friday by a missile fired from a drone aircraft operated by his own government, instantly reignited a difficult debate over terrorism, civil liberties and the law. [LA replies: excuse me, but the U.S. government wasn’t “his own government”! This was a man at war with the United States.]

For the Obama administration, Mr. Awlaki, 40, had joined the enemy in wartime, shifting from propaganda to an operational role in plots devised in Yemen by Al Qaeda in the Arabian Peninsula against the United States. Early last year, officials quietly decided that his actions justified making him a target for capture or death like any other Qaeda leader.

But a range of civil libertarians and Muslim-American advocates questioned how the government could take an American citizen’s life based on secret intelligence and without a trial. They said that killing him amounted to summary execution without the due process of law guaranteed by the Constitution. [LA replies: So clearly the “arrest and try Awlaki, don’t kill him” school is part of the “terrorists are criminals, not enemies waging war against us” school.]

That argument was pressed unsuccessfully in federal court last year by the American Civil Liberties Union and Mr. Awlaki’s father, Nasser al-Awlaki, a former agriculture minister and university chancellor in Yemen. A federal judge threw out their lawsuit, noting that the younger Mr. Awlaki had shown no interest in pursuing a claim in an American justice system he despised. [LA replies: Right. Awlaki did not regard himself as a U.S. citizen, but as an enemy of the U.S.]

On Friday, Jameel Jaffer, the A.C.L.U.’s deputy legal director, said that the drone strike, which killed Mr. Awlaki and another American, Samir Khan, 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 that the killings were legal. But he said it was “plenty controversial” among legal specialists, with experts on the left and on the libertarian right deeply opposed to such targeted killings of Americans. [LA replies: again I dispute the premise that Awlaki should be seen as an “American” when he had abandoned America and was at war with it.]

The administration’s legal argument in the case of Mr. Awlaki appeared to have three elements. First, he posed an imminent threat to the lives of Americans, having participated in plots to blow up a Detroit-bound airliner in 2009 and to bomb two cargo planes last year. Second, he was fighting alongside the enemy in the armed conflict with Al Qaeda. And finally, in the chaos of Yemen, there was no feasible way to arrest him.

Critics noted that the Fifth Amendment to the Constitution states that no one shall be “deprived of life, liberty, or property, without due process of law.” In ordinary circumstances, a trial and conviction would be required before government officials could order an execution.

No public legal process led to Mr. Awlaki’s becoming 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 underwent 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.

The legal debate is complicated by the fact that precedents 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 against terrorists.

“What’s tricky here is that many people don’t accept that this is a war,” Professor Chesney said. “I don’t think there has ever been a case quite like this.” [LA replies: Exactly. I ask VFR readers who oppose the killing of Awlaki to state whether they think al Qaeda is an enemy waging war against the U.S., or, as extreme liberals and libertarians insist, a group of criminals who should be tried and punished as criminals. And if, as I expect, they say that al Qaeda is an enemy, then why should Awlaki, who is part of al Qaeda, be treated any differently?]

It was, of course, Mr. Awlaki’s very American qualities—his fluency in the language and culture of the country where he spent half his life—that made him such a dangerous radicalizing force.

The American-educated son of an American-educated Yemeni technocrat, Mr. Awlaki embodied the puzzle of radicalization: How could an American citizen reach the point of calling in eloquent English, via the megaphone of the Internet, for the mass murder of his fellow citizens? [LA replies: There go those libs again, always “puzzled” by simple reality when it contradicts liberalism, in this case the simple reality, known to all sentient persons for the last 1,400 years, that Islam commands aggressive war against non-Muslims.]

His eerily calm religious justifications for violence, 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 influence—his written, audio and video sermons stored on hard drives, e-mailed among conspirators and treated as a clerical imprimatur for their deeds.

Mr. Awlaki was born in 1971 in Las Cruces, N.M., where his father was a graduate student in agricultural science. He moved to Yemen with his parents at the age of 7 and attended school in the conservative Muslim country, where he later told friends he had been thrilled by tales of Yemeni men fighting the Russians in Afghanistan.

At 19, he was sent back to the United States to attend Colorado State University. He completed an engineering degree, but by then had discovered his knack for preaching. He became the imam in mosques in Denver, San Diego and the Virginia suburbs of Washington, and collections of his sermons became best sellers on CD. He showed a moderate face to the public; the nature of his contacts with at least two of the future Sept. 11 hijackers remains a mystery.

Though Mr. Awlaki denounced the Sept. 11 attacks, he was angered by the government investigations of Muslim organizations that followed. He moved to London in 2002 and eventually to Yemen, where he was imprisoned in 2006 and 2007.

After his release, he created an English-language Web site, blog and Facebook page that drew tens of thousands of visitors, putting out a message that grew steadily more approving of anti-Western violence. He first came to broad public attention in November 2009, after he praised as a hero Nidal Malik Hasan, the Army major accused of killing 13 people at Fort Hood in Texas.

Unlike Osama bin Laden, whose convoluted Arabic-language Web messages struck many Western Muslims as foreign and strange, Mr. Awlaki’s unaccented English, sprinkled with colloquial Americanisms, often hit its mark. He leaves an ineradicable electronic legacy, on CD and on the Web, and for those drawn to jihad, his death in an American missile strike may give his story a new gloss of martyrdom.

Posted by Lawrence Auster at October 01, 2011 09:15 AM | Send

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