Killing Anwar Al-Awlaki: What’s the basic argument?

Authored by:  Daniel T. Murphy

It’s not easy to find a concise lay-person’s un-biased description of the competing arguments regarding the legality of Awlaki’s killing.  So, here it is . . .

Anwar al-Awlaki was an American-born Al Qaeda cleric who was killed in Yemen on Sept. 30, 2011 by a Hellfire missile fired by a US drone.  He was an advocate of violent jihad against the United States.  US and British intelligence agencies linked Awlaki to multiple terrorist plots in the United States, Britain and Canada.  He had allegedly advised Fort Hood shooter Maj. Nidal Hasan and underwear bomber Umar Farouk Abdulmutallab, and had (at least) inspired Times Square bomber Faisal Shahzad.

The Justice Department claims Anwar Al-Awlaki was taking part in a war between the United States and Al Qaeda and therefore posed a significant threat to Americans.  In a 50-page memo, DoJ argued that he was an enemy combatant, that Yemeni authorities were unable or unwilling to stop him from participating in combat operations, and that he could not be captured.  He had evolved from merely being a propagandist to playing an operational guiding and planning role in Al Qaeda’s efforts to carry out combat operations against US forces and terrorist attacks in the US.  Awlaki was the first American citizen to be deliberately targeted and killed by American forces in the Global War on Terror.

The two most significant questions regarding the killing of Awlaki were: (a) Did the US government violate Awlaki’s Fourth Amendment right to not be unreasonably seized by the government? (b), Did the US government violate Awlaki’s Fifth Amendment right to not be deprived of life “without due process of law?”  The ACLU, Congressman Ron Paul, and others have argued that, as an American citizen, Awlaki had the right to a trial in a US court, and that it was a violation of the Constitution for our government to order his assassination.  DoJ argued that Awlaki was not a criminal, but an enemy combatant.  Thus, the Fourth and Fifth Amendments don’t apply.  They cited cases that had allowed American citizens who had joined enemy forces to be detained or prosecuted in a military court alongside other enemy combatants.

DoJ argued that, while Executive Order 12333 bans political assassinations, it does not prevent the killing of a lawful target in an armed conflict.  They argued that a federal statute prohibiting Americans from murdering other Americans abroad, did not apply either, because the killing of a lawful target in an armed conflict is not “murder”.  According to DoJ, even if the act was committed by a non-uniformed CIA drone operator, there is nothing expressly prohibitive about that under international law.