The killing of two Americans by a U.S. drone strike in Yemen has reignited a debate about whether targeting U.S. citizens — even terrorists — is legal under the rules of war or constitutes an extrajudicial execution that ignores their rights.
The Obama administration contends that U.S.-born radical cleric Anwar Awlaki was a legitimate target because he played an "operational" role in Al Qaeda, alleging that, among other plots, he directed a 2009 Christmas Day plan to blow up a Detroit-bound jetliner.
"Awlaki was the leader
of external operations for Al Qaeda in the Arabian Peninsula," President Obama said Friday. "In that role, he took the lead in planning and directing efforts to murder innocent Americans."
But some human rights advocates and legal scholars said the administration had never produced evidence to back up that claim. They said the 40-year-old cleric was an influential recruiter and motivator, but there was little evidence to directly link him to belligerent operations against the United States.
The attack also killed Samir Khan, 25, a U.S. citizen and anti-American propagandist who ran an
Al Qaeda-linked website that called for attacks on the United States.
Diane Marie Amann, a University of Georgia law professor who has monitored terrorism trials for the National Institute of Military Justice, said the debate over whether Awlaki's killing was legal hinges on whether the war against Al Qaeda is an armed conflict or an international police action.
"Viewed through the lens of ordinary criminal justice, for the government to kill a suspect rather than put him on trial is summary execution, clearly forbidden by U.S. and international law alike," Amann said. "Viewed through the lens of armed conflict, the result is different, however: The laws of war permit a state to kill its enemies."
An array of international law experts defended the legality of the airstrike, illustrating the conflicting interpretations of law in the fight against terrorism.
"There is strong linkage between Awlaki and the Christmas Day bomber," said Duke law professor Scott Silliman, a former Air Force staff judge advocate, referring to the young Nigerian reportedly groomed by Awlaki before his botched attempt to detonate explosives smuggled aboard the plane in his underpants.
"We do know there were also some email links between Awlaki and Maj. [Nidal Malik] Hasan at Ft. Hood," Silliman said, in reference to the U.S. Army psychiatrist accused in the Nov. 5, 2009, shootings that left 13 dead at the U.S. military base in Texas.
"When you put that together, and with some indications in the intelligence community that he was the head of or at least very active in the leadership of Al Qaeda in the Arabian Peninsula, I think it was clear he was more than just a propagandist. That type of activity puts him in the category of a legitimate target."
Amos Guiora, a University of Utah law professor and author of a forthcoming book on targeted killings, said U.S. military and intelligence agencies were within their rights to eliminate Awlaki. He said the operation appeared to have been carried out with appropriate preparation and care to avoid civilian casualties, despite the ostensibly unintended killing of Khan, who was with Awlaki at the time.
"This attack appears to have met the criteria of proportionality, military necessity and the absence of alternatives to be in full accordance with a state's right to aggressive self-defense," said Guiora, a former Israel Defense Forces legal advisor involved in targeted killing decisions in the Gaza Strip in the mid-1990s.
Constitutional rights advocates have clashed with that point of view throughout the so-called war on terrorism pronounced by President George W. Bush after the Sept. 11, 2001, terrorist attacks.
The killing of Awlaki was "the latest of many affronts to domestic and international law," said Vince Warren, executive director of the Center for Constitutional Rights, disparaging the claimed executive power to kill any U.S. citizen deemed a threat.
Ben Wizner, national security litigation director for the American Civil Liberties Union, argued that lethal force beyond the battlefield is lawful "only as a last resort to counter an imminent threat of deadly attack."
Much of the legal and ethical dispute festers because the administration has invoked state secrecy to prevent disclosing to either the public or judiciary the evidence it says it holds pointing to Awlaki's operational involvement.
Micah Zenko, a Council on Foreign Relations fellow on conflict prevention, said the known evidence linking Awlaki to Al Qaeda operations is slim but that the intelligence agencies and military special forces involved in such a strike would be unlikely to disclose any detail that could compromise intelligence gathering and future targeted killings.
Then-Defense Secretary Robert M. Gates made that position clear in a federal court filing a year ago, when he asserted a state secrets privilege in urging a federal judge to dismiss a suit brought by Awlaki's father, Nasser, seeking a court injunction against any attack on his son. U.S. District Judge John D. Bates dismissed the elder Awlaki's case, saying it wasn't the court's role to intervene in military operations.
Awlaki's U.S. citizenship didn't entitle him to any special right of due process beyond what a foreign terrorism suspect would have, the legal analysts said.
A 1942 Supreme Court decision upholding the war-crimes convictions and death sentences of Nazi infiltrators caught attempting to sabotage East Coast defense operations rejected special consideration of one saboteur who claimed U.S. citizenship. The justices found all eight men to be "enemy belligerents" subject to the prosecution and punishment allowed under the law of war.
In Ex parte Quirin, the justices found all eight men to be "enemy belligerents" subject to the prosecution and punishment allowed under the law of war.
"The constitution guarantees due process for every 'person,' not just for citizens, and the laws of war do not preclude the possibility of one state's citizen taking up arms against his own country," said David Glazier, a national security law professor at Loyola Law School.
"From the U.S. government's perspective, that's the real beauty of treating [the fight with Al Qaeda] as an armed conflict," Glazier said. "Both U.S. national and international law are in agreement that the nationality of the target doesn't matter."