Anwar Al-Awalki And Analytical Ambiguities


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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57 Responses

  1. Hey, when did you get the call-up to the big leagues? In any event, thanks for the kind words and congrats on the new (I see now, not so new — I’m a bad blog reader) internet home.Report

  2. Avatar Tod Kelly says:

    Another great post, Burt. I have no arguments nor quibbles, but I will not that this line about conservative policy:

    “One reaction to this is to rely on morality.”

    Would be the way I would have used to describe the liberal camp, and the conservatives as being “cautious” by allowing an execution without (possibly) due procedure.Report

    • Avatar Burt Likko in reply to Tod Kelly says:

      I wrestled with that taxonomy. Since partisans from all sides of the dispute would claim that they are both moral and cautious while their counterparts are not (or more charitably, are less so), some degree of irritation with whatever terms I chose seemed inevitable, so rather than be paralyzed by seeking globally acceptable semantics, I just bit the bullet, picked the words that seemed best, and hit “publish.”Report

  3. Avatar Tom Van Dyke says:

    The helpful link to the blog makes the legal case:

    (1) He has clearly been identified with a high degree of confidence using the best intelligence available and a multi-layered review process as a high-level operational terrorist leader in a group that the government reasonably regards as part of Al Qaeda (or at least cobelligerent with it) and who has actually planned attacks on behalf of that group. Critically, this intelligence, some of which has become public, is not simply about his role as a charismatic, inspirational jihadist cheerleader or as an internet propagandist, facts that would not, repugnant though these activities are, be grounds for targeting him.

    (2) Efforts to capture Al Aulaqi have clearly been made. This morning’s New York Times, for example, has a lengthy story about such efforts over a long period of time:

    So what’s the problem here exactly? I hear a lot of noise, but if it doesn’t acknowledge these facts, that’s all it remains. Surrender or die is the way of the world; al-Awalki didn’t, so he did.Report

    • Avatar Jason Kuznicki in reply to Tom Van Dyke says:

      As I’ve said before, killing him in combat is not the problem. It’s placing him on a list that declares he can be killed, regardless of whether he is in combat.

      “This is a step that can now be taken with anyone,” say the opponents and civil liberties advocates.

      “No it’s not,” say supporters of the killing. “We knew he was guilty, and he was in combat anyway.”

      “Really?” say opponents. “How did we know?”

      I’d like an answer to that last question that’s more methodically rigorous than “the CIA says so” and “the court of public opinion agrees.”Report

      • Avatar Stillwater in reply to Jason Kuznicki says:

        That’s the very important relevant context here for me as well: how is his guilt established unilaterally by the executive when a determinations of guilt – in the legal sense – can only be established by the courts. By granting the legitimacy of the request for a judicial review of evidence, but obstructing the process by invoking states secrets privilege suggests that the DOJ (or state) agreed that AA had a right to a hearing. If that’s the case, then the US government appears to be conceding that AA had legitimate rights and privileges accorded US citizens even tho he was deemed an enemy combatant on foreign soil.

        The argument put forward by the Executive, then, must be that even tho AA has certain rights and protections, they can be abrogated by other provisions. What are those provisions? Presumably, they’re contained in the AUMF, which grants broad authority to kill and capture members of AQ in a manner consistent with the AUMF’s goals and procedural requirements regardless of the citizenship of the targeted person.

        So the problem here is that a unilateral determination made by the executive based on legislation passed by congress appears to trump the otherwise rights and privileges US citizens have against actions by the US government.

        But is this so? I don’t mean that trivially, either. What provision would be cited to support the claim that the US government acted illegally in targeting AA without a trial? His right to due process, I suppose. But a) does he have that right in a foreign country, b) if so, does the AUMF grant the executive with the authority to rescind AA’s rights under a broader authority (to kill/capture enemy combatants linked to AQ), and c) if not, then his only recourse to right’s based justice is to surrender to the US or return to a location under US jurisdiction.

        I’ve seen lots of arguments and commentary pushing each line here, but they’re obviously inconsistent. The issue is a mess, and I haven’t read anything which would make it clearer.Report

      • killing him in combat is not the problem. It’s placing him on a list that declares he can be killed, regardless of whether he is in combat.

        “This is a step that can now be taken with anyone,”

        What Jason said. Because the precedent allows it to happen in the U.S., too. It allows it to happen even if he does surrender. It allows it to happen whenever the President makes the declaration.

        Surrender or die is the way of the world;
        And why should we let a little thing like the Constitution, or limiting the power of the government to kill its own citizens, get in the way of the way of the world? After all, it’s not like the Framers wrote it to limit our government from following the normal ways of the world or anything.Report

        • This just illustrates the absurdity of treating terrorism as civil crime. As a military operation [which is the only defensible rubric for the Obama Administration], there’s zero problem here.

          As for the rest of the above argument, it elides too many of the actual facts to fruitfully engage. Dude would be alive right now enjoying due process if he’d surrendered. He’s dead instead, but that was his choice.Report

          • Dude would be alive right now enjoying due process if he’d surrendered.

            Where’s that in the Constitution?

            Terrorism, when committed by a U.S. citizen, is a civil crime. You’ve said nothing that demonstrates it’s not. I think the absurdity is declaring that we’re “at war” with terrorism. It sounds good, all full of Ramboey gung-ho-ness and flag-waving kill-the-ragheads patriotism, but at the end of the day, terrorist acts are far more like normal crimes than they are like war. Terrorists don’t line up on a battlefield and go after our soldiers. They sneak around and bomb things–pretty much like anti-abortion activists bombing clinics or animal-rights folks setting fire to ski resorts. We don’t declare war on them and say they’re outside the scope of the law. We treat that stuff as a crime and proceed accordingly.

            If an animal rights person killed someone in an mink-liberation operation, then scurrried across the ocean and from there propagandized about killing everyone who wears leather, and killing the people in government who allow the horrible enslavement of animals to continue, we wouldn’t send a death squad after them.

            Somehow “this” terrorism is supposed to different, but it’s not really. All saying so does is glamorize the terrorists, giving them more legitimacy, and excusing new advances in unchecked executive power.Report

          • Avatar Mad Rocket Scientist in reply to Tom Van Dyke says:

            Kinda hard to surrender to a drone strike.Report

  4. Avatar BSK says:

    How necessary was it to stop Awalki? Exactly what threat did he pose going forward?

    If the action was taken because of previous actions, I think that is more troubling than if it was taken to prevent future actions.Report

    • Avatar Scott in reply to BSK says:


      Have you been paying attention to the news about the different people and plots he has been connected to?Report

      • Avatar BSK in reply to Scott says:


        No. I wasn’t trying to be obtuse about the matter. I’ve really only heard the, “We killed a citizen,” and “He was a goddamn dirty terrorist,” narratives. So I don’t know the details.Report

        • Avatar Bruce Webb in reply to BSK says:

          There was not a lot of inference required. This guy was the video face of al-Qaeda, and repeatedly produced and distributed material not only declaring his acts of treason but actively promoting treason by others, including at least one documented case of his giving advice to the Ft. Hood mass murderer.

          So the essential guilt at least in respect to the treason charge is not in doubt, and treason is a capital offense.

          Which doesn’t in itself abrogate due process and I would suppose lead the press to dutifully put the words ‘alleged’ in front of his name while he was actually under trial. But then the same was true of John Dillinger, another criminal that if anything went out of his way to admit his crimes while taunting the authorities. That is the tactics Obama is endorsing here are not that much different than the ones J. Edgar Hoover used against notorious bank robbers in the 30s.

          al-Alwaki could have been taken into custody, even with what little we know it was clear he was under continuous physical observation for two weeks before the strike and that Predator didn’t just get lucky. In fact an even better parallel than Dillinger was Bonnie and Clyde, who equally could have been captured on that road that day. Instead the decision was made to summarily execute them. And in that case on American soil.

          When it comes to extra-judicial murder America has a long history of letting circumstances alter cases. And not just limited to bank robbers and avowed traitors, a look at some of the bloodier pages of anti-union efforts before and after WWI show that pretty clearly. Which obviously doesn’t make it right or even legal, but the current case has many historical precedents. BTW the Guardian has a good piece on this.Report

      • Avatar James Hanley in reply to Scott says:

        Have you been paying attention to the news about the different people and plots he has been connected to?

        Oh, yeah, I’ve heard all the government propaganda run through its media lapdogs.

        If there’s really so much damned evidence, it shouldn’t have been hard to indict him, and, if necessary, try him in absentia. It’s the eagerness of our government and many of our citizens to avoid even that simple step that chills me to the bone. It’s my own people saying, “Fuck the Constitution!”Report

        • Avatar BSK in reply to James Hanley says:

          To me, the attack was justified if it was intended to stop an impending threat. Similar to a cop shooting a criminal who is himself firing a gun. But if the attack was to punish for his past crimes and we had ample evidence of his past crimes, then this evidence should have been used to try him in court and, if convicted, used to justify the death penalty.Report

  5. Avatar James K says:

    This is a good post Burt, I think it frames the issue well.

    The problem here is that if al-Qaeda was a proto-state, its bid to coalesce into a real state with geographic borders and nationalistic sentiment failed and we have by now defeated it.

    This captures the big problem I have with the whole “War on Terror” analogy. Wars have very clearly defined participants and start / end conditions. A war starts with one party declares war on another and ends with an armistice or some other surrender. But “terror” is not a country. It has no authorities that can declare a war, nor surrender. Thus the war on terror is a war that cannot be won by the US, the only options are defeat (which is highly unlikely in any feasible scenario) or eternal stalemate i.e. war forever. Furthermore, since “terror” has no borders or territory there are no geographic boundaries for the war either. Finally, it is not always clear who is a terrorist (it’s one if you’re talking about someone shooting an AK at you while yelling “Derkha derkha Mohammed jihad!“, but that’s just a small fraction of terrorism) and who isn’t so unlike a regular war you still need some way of separating hostiles from civilians.

    All of that means that if this is a war it’s a very unusual one that necessitates different rules (ones that are more solicitous of people’s rights) than a normal war.

    But even treating this as a shooting war, I don’t think killing Anwar Al-Awalki was right. Now, I’m actually a proponent of assassination as a military tool, but only if such killings are limited to legitimate military targets: soldiers and members of the civilian command and control apparatus. But if you treat Al Qaeda as a country then Al-Awalki wasn’t a general, he wasn’t even Minister of War, he was more like Minister of Propaganda. That doesn’t strike me as a military target. The fact that the US just summarily executed one of its own citizens without charge, trial or hope of judicial review only makes the situation more problematic.Report

    • Avatar Michael Drew in reply to James K says:

      Just as we can’t say that the administration’s claims that he played a far more operative role in AQAP than that of a civilian Minister of Propaganda are well-founded since they haven’t offered any evidence, I’m not quite sure on what basis we might think that we know that that is the best description of the role he played. Keep in mind, nearly every military has extensive uniformed information operations units, which if involved in a war are/can be legitimate military targets. This is not to meant advance this analogy, but just to argue it out, since you chose to do the same.Report

    • Avatar Katherine in reply to James K says:

      I agree that “war on terror” is a very sketchy and undefined way of describing this conflict. But “war against al-Qaeda” makes some kind of sense.Report

  6. Avatar George T says:

    Well, as I see it, as a US citizen Al-Awalki had the right to life, liberty, and the pursuit of happiness. But by joining Al Qaeda and waging war on us, he certainly gave up his right to liberty, and possibly to life, as any court proceeding would have found. The only thing he had left was the pursuit of happiness, and becoming a martyr and getting 72 virgins was the only thing that was going to give him that sense of fulfillment. Our government, in its wisdom, compassion, and benevolence, helped him attain that goal.

    When our enemies want to die and we want to kill them, it’s easy to reach a mutually satisfactory arrangement, so we won’t get a good case around which we can make good law, or draw a clearer line between civil and military spheres.

    Perhaps we’d have a better case if Julian Assange was a US citizen on the run, posing a clear threat to national security while not being a terrorist, and Obama still had him assassinated. But there’s no chance of that happening unless Assange gets hold of Obama’s college transcripts, so we are left with the Al-Awalki outcome which, according to a recent poll, only 8% of Americans disagree with.Report

    • Avatar James Hanley in reply to George T says:

      Well, as I see it, as a US citizen Al-Awalki had the right to life, liberty, and the pursuit of happiness. But by joining Al Qaeda and waging war on us, he certainly gave up his right to liberty, and possibly to life, as any court proceeding would have found.

      Then have the fucking court proceeding! The only good reason for not having it is if we’re afraid that in fact the court proceeding might not find out that he is guilty.

      I’m absolutely chilled at this, “we know he was guilty so we don’t need to hold a trial” attitude. That is way too generalizable for me to understand why any citizen would be comfortable with it.Report

      • Avatar Stillwater in reply to James Hanley says:

        See, that’s what bothers me about it too. Even if the government is sitting on evidence to confirm that he’s guilty of x, y or z, the fact that they refused to charge him with anything, on the one hand, and obstructed the request for a hearing by citing states secrets on the other, suggests – to me anyway – that they want to establish a precedent which expands unilateral executive authority. Which is … worrisome.Report

      • Avatar George T in reply to James Hanley says:

        But we know he’s guilty. Just look at them beady little eyes, the crazy-man beard, and that turban on his head. What more proof do you need?

        Seriously though, in his case his constant Internet recruiting videos alone would’ve been enough to hang him as far as the intelligence community was concerned, and that’s why he makes a bad test case.

        Most terrorists aren’t advertising their activities and existence year after year. Most are going to be acting like spies and sleeper agents where evidence against them is scant, dubious, questionable, and often tainted.

        Yet if we have a handful of such evidence, the Maverick missiles will still fly. We do it all the time against targets in Waziristan and elsewhere, and at some point one of the people targeted will be a US citizen. It’s probably already happened a time or two and we just lacked enough information to crow about it, or the person was collateral damage in a strike on some other Al Qaeda higher-up, or we didn’t realize Muhammed ibn Al-Muhammed was actually Ricky Smith from Detroit.Report

  7. In other words, we cannot say with any degree of precision whether the killing of Al-Awalki was lawful because the law has not armed us with sufficient analytical tools to sort out which regime — law of crime or law of war — is to be used in this situation.

    I think statements like this trip up non-lawyers like me because there’s an ambiguity in what we (people in general) mean when we say lawful or not lawful. This statement is about precedent, and there is not well-established precedent to lead us definitively to how the US should and may act, or at least that is how I read the first part of Mr. Likko’s argument. At the same time, people in general tend to think of lawful and unlawful as the way things should be–the US should (or should not) be able to act thusly in this case or that case.

    I realize the law has complications and that there are never or almost never absolutes, but there is something in the language of law that suggests issues are resolved only when a consensus is reached or when some authority (e.g., the Supreme Court) decides, and that consensus or that decision might need to be supplemented by subsequent demonstrations of consensus or subsequent decisions, the upshot being that 10 years later lawyers can look at the new precedents and say, “well, that action was lawful/unlawful.” In the meantime, life goes on.

    I don’t mean any of this as a criticism of the post or of lawyers, but it is something I’m struggling with when I read what lawyers have to say on the blogs that I read (and when I read legal history done by academics, which I do not often but occasionally). There seems to be (what might uncharitably be called) an idol of “Precedents” in such discussions.Report

    • Avatar Bruce Webb in reply to Pierre Corneille says:

      As noted above the case of the extra-judicial murder of Bonnie and Clyde was strikingly parallel. We had avowed public enemies traveling in vehicles along a road that could have been blocked and captures effected. Not without danger, which fact I am sure informed the final decision, but achievable.

      But saying that AA wasn’t an enemy combatant is close to saying that Meyer Lansky was after all just an accountant and casino operator. Who just happened to be business partners with lots of people who killed people.Report

      • I’m not sure I disagree with anything you said. But I actually was trying to address what I see as a challenge in the way lawyers talk about whether something is or was illegal. When there isn’t a consensus or precedent, we only “know” (in the lawyer’s way of knowing, which, by the way, is perfectly fine for its own sphere, because that’s what lawyers do) something is illegal or legal when it is finally decided on.Report

  8. Avatar trizzlor says:

    Mr. Likko, what do you think of the possibility of legal recourse for the al-Awalki incident, perhaps a family member or some organization bringing this to the supreme court to be settled? I’m not a lawyer, but I imagine there would be an issue of standing as there was prior to the assassination. If so, how else do you see these issues actually getting resolved?Report

  9. Avatar Stillwater says:

    If you’ll permit me to cheat a bit … a cut and paste from a comment (with some additions) on the Balloon Juice thread yesterday:

    On another supposition, killing him was a form of preventative defense, along the lines of preventative war. This justification would require an evidential burden – not one that the state would or ought to share with us – that active schemes and plans were being implemented to harm us. Surely there is a plausible argument that AA was plotting and planning to harm the US. So the killing could be justified on grounds consistent with the war on terror. Fair enough.

    But here’s the problem: the US government has succeeded in lumping a US citizen in with non-US citizens and expected the AUMF and Patriot Act to cover US military actions against both groups equally. But why think the AUMF has that power? Just because AA was on foreign soil when he was killed? Because the limits of right’s protections of US citizens against actions by the US government end at the boundaries of US sovereignty?

    So in effect, the broad powers granted by congressional legislation authorizing the federal government to kill or capture ‘enemy combatants’ takes precedence over the constitutionally guaranteed rights of US citizens. And that’s not to say that a clear way of reconciling the tension is apparent or even easy. It’s just that now, given this precedent, the lines are sufficiently blurred that clearing it up won’t be made any easier.

    I still haven’t heard a good answer to this. Personally, I don’t think the 14th Amendment answers the question since it’s primary purpose (in the relevant section) is to establish right’s claims for person within US jurisdiction. It says nothing about the extension of those rights claims against government when outside US boundaries.Report

    • Avatar Stillwater in reply to Stillwater says:

      Adding: it wasn’t clear above, but I wrote the pasted comment.Report

      • Avatar Jaybird in reply to Stillwater says:

        Stillwater, let me say that you are very eloquent and I enjoy reading your work.

        Now, that said, let me say this:

        I found myself making rote defenses of Dumbya during Gulf War II because of the various inclinations roiling in my sub-self. Around 2005ish, I realized what various parts of myself I had sold off due to these inclinations.

        So I’ll ask you this: Pretend that Dumbya had just done the exact same thing. Let’s say that he did it to yet another #3 of Al Qaeda… except this #3 happened to come from Cincy instead of from some country nobody has ever had to remember ever having heard from. Let’s say that some memo that Ashcroft or Yoo wrote after being consulted was involved. Would you remain this phlegmatic? (Or is it sanguine? I can never keep my humours straight…)Report

        • Avatar Stillwater in reply to Jaybird says:

          Ya know, when I wrote the add saying it was me, I was afraid that someone would misinterpret it as an expression of pride or vanity rather than an attempt to take responsibility for the views I was endorsing (because I had written them, ya know?).

          I just didn’t think you’d be the one getting confused about that, what with your clarity and perspicacity and all.

          Other than that … have you been drinking?Report

    • the US government has succeeded in lumping a US citizen in with non-US citizens and expected the AUMF and Patriot Act to cover US military actions against both groups equally. But why think the AUMF has that power? Just because AA was on foreign soil when he was killed?

      That’s an aspect of it, that he was purposefully evading US authorities. If he wanted the due process of noncombatants he needed to surrender and take his case up through the courts – he had at least from January 2010 to do so. By December 2010 the US government had made clear the steps he could take to surrender, “peacefully presenting himself at the U.S. Embassy in Yemen and expressing a desire to vindicate his constitutional rights in U.S. courts.” (pdf).

      Also, der Spiegel says,

      In January 2009, Anwar al-Awlaki supposedly had a chance to get out. According to information obtained by SPIEGEL ONLINE, Yemeni government intermediaries had secretly conveyed an offer to the jihadist hate preacher granting him amnesty if he only said a single sentence: “I do not belong to al-Qaida.”

      At the time, al-Awlaki had already been hiding in the vast Yemeni desert for a while. But he refused to say the sentence. Since then, the 40-year-old has been hunted by both the Yemeni military and the United States.


      • Avatar Stillwater in reply to Creon Critic says:

        I think this is the point where confusion sets in. The suggestion that US military action against him was justified by his refusal to return to US soil to exercise his constitutional rights presupposes that he had no rights, claim or expectations against the US government just so long as he wasn’t on US soil.

        That’s the issue I’m wondering about, since surely a US citizen who was the victim of illegal US government action in a foreign country would be entitled to redress by US courts.

        Or is that not the case?Report

        • If he’s a combatant then his suite of rights is far more restricted (though he still has some rights, like the right to be free from torture). If he’s a non-combatant then he’s entitled to a much broader range of rights. For this particular case, if he thought he was mistakenly labeled a combatant, there was an avenue for him to contest the label. It isn’t that he didn’t have rights, claims, or entitlements. There was a process, but he needed to engage with it. He could not engage with the “I’m a non-combatant” process while simultaneously hiding from the authorities.Report

          • Avatar Stillwater in reply to Creon Critic says:

            Good. So the argument, then, is that the broad authority granted the US executive under the AUMF isn’t in conflict with AA’s otherwise existing rights as a US citizen, but rather a) that he failed to avail himself of his guaranteed rights by refusing to return to US jurisdiction and contest the charge against him in court, and b) short of that, a kill order based on the determinations of the executive was justified under the AUMF authorization to kill/capture members of AQ.

            Is that about right?Report

            • Yes. In light of the hostage analogy at Lawfare, the SWAT team analogy George T presents below, and the resulting discussion of “imminent threat” I’ve been thinking about who decides imminence and it appears it’s the President with the aid of Congress. The discussion reminds me of the argument that the President and Senate can circumvent any constitutional limits on federal power with treaties (Missouri v. Holland). Essentially, it’s up to the conscientiousness of the presidency and Congress to craft a system that doesn’t end up in a death squad/police state dystopia.Report

      • All this “evidence” that’s being presented is an effort to try him in the court of public opinion, and justify that as equivalent to being tried in a court of law. It ain’t equivalent, and there’s a reason we don’t allow that as a substitute for due process.

        For god’s sake, when Eric Rudolph went on the lam, we didn’t say, “well, he had a chance to give himself up and stand trial and didn’t, so I guess the government has unlimited authority to seek him out and kill him before a trial.”Report

        • James, he got the process that was due a combatant. After Eric Rudolph’s bombing the normal police apparatus of the state was mobilized. After 9/11 by contrast, NATO invoked Article 5; NATO members agreed the attack constituted an attack on all the members of NATO. The level of threat al-Qaeda and its affiliates posed was judged to be orders of magnitude above that of a lone bomber. The military threat framework wasn’t just a figment of the US imagination. Multiple nations assented to this conceptualization of al-Qaeda and affiliates as far more than just a criminal group. Also, I think there’s a very strong presumption in favor of using law enforcement means in the US (Posse Comitatus Act), hiding in Yemen, out of reach of both US and Yemeni authorities, is an important distinction.

          Also, it wasn’t unlimited authority to seek and kill him. The US government agreed that were he to surrender peacefully “legal principles with which the United States has traditionally and uniformly complied would prohibit using lethal force or other violence against him in such circumstances” (same pdf as above).Report

        • James, on reflection, I think I’d add that I share the concerns you expressed – my fist sentence at 7:07pm sounds more definitive than I actually feel about this. There are elements of guilty until proven innocent to this, combatant until proven otherwise, and I’d welcome a firmer footing that included the judiciary in the process. And I can also see that this process – which some view as no process at all – is ripe for abuse. I can think of a number of complicating factors. Suppose Julian Assange were targeted in this manner, as numerous outraged commentators called for his assassination, or suppose the designation was entirely secret, without any opportunity for the targeted person to surrender themselves, or the instance you brought up, what about on US territory, can the president authorize targeted killing within the US?

          I think my answer is the one I offered at 1:54pm, we’re dependent on the conscientiousness of the presidency and Congress to use these powers in a fixed set of circumstances. Barring that, whistleblowers in the bureaucracy who object to the US not living up to standards you’re holding as decisive here.

          This could also just be an instance of the adage hard cases make bad law.Report

          • Creon,

            A thoughtful reply. I’d only note that I don’t think NATO’s article 5 supersedes constitutional procedures, and of course as a libertarian I’m not at all comfortable depending on “the conscientiousness of the presidency and Congress” in any circumstances!

            I will concede that it’s a somewhat harder case than I have let on, as a legal matter. Nevertheless, I think following the established due process procedures would be simple enough–I guess that’s what Burt called the “cautious” approach.Report

  10. Avatar Michael Drew says:

    The real problem is judicial review. There is simply no domestic judicial review of who gets targeted by the U.S. in war. I don’t know if an argument can be made about a legal basis by which courts might undertake such review (obviously the 5th Amendment comes to mind), but that is neither here nor there, because they never will. For them, it is the ultimate political question. That goes for the question of Americans citizens who are (designated) enemies in such war and thus become targets. If we are at war, Congress and teh president will decide who are at war with and who can be targeted among them.

    This means that the precise role, circumstances, etc. of any individual lethal action in a war are never going to be examined by courts. Not a targeted killing like that of Mr. al-Awlaki, any more than an unplanned killing of an American citizen dressed in the uniform of another state with which we are at war, who our soldiers find shooting at them. What this means is that there is actually no novelty to the handwaving around the president’s claim that he could order this citizen killed pursuant to his role as the equivalent of a soldier in an enemy force without judicial review(!!!!). Because such a specific order within a war would never in any case have received judicial review. If the administration, as was suggested in the previous thread, had concocted evidence to the effect that Awlaki had been engaged in active hostilities with our forces when he was killed, that might have satisfied a number of people’s hankerings as to their view of the factual legalities as they see them in this case, but it wouldn’t have remotely altered their fundamental procedural objection to this claim of power to direct the use of force in war including against citizens the president claims were belligerents against us, because that objection was (or had been) that he could do so without any judicial review, which is seen as a necessary condition for due process to have been given. and even had those conditions been invted and presented to the public, or even been true, the action still wouldn’t have been reviewed (and certainly not before the fact) by a court. It still would have just been a story the president was telling. Would we accept that he can do this if simply goes on TV and gives a speech with what seems like convincing evidence that facts obtained that make us feel better about this? No, the point, the claim, was due process, specifically due process involving judicial sign-off. And that is never going to be part of the process of determining de=iscreet actions in war.

    There is a question, though, that I believe the courts would/could/might/should review, namely: are we at war? If we are at war, are we at war with the organization that the president asserted was a military force in which the citizen he ordered targeted was an active belligerent? If we are not at war with that organization, then as a general matter, ti would seem to me, the court might find that the president cannot order citizens killed for being an operative part of it. And I think there would ample international law basis to find that we are not involved in a war with AQAP, whatever the 2001 AUMF has to say about who else we ay be involved in a war with. (See Mary Ellen O’Connell’s work on this, specifically: I’m very sketchy on how, exactly, the international legal definitions of states of armed conflict incide on our domestic law of powers in war.) The “problem” (if you see this as a problem) is, finding that the war the president claims he is directing the particular actions in is not actually a war, the court might (I’m still thinking about this) be unable to find a way to disallow the killing of an American citizen without also disallowing all other uses of force the president claims to be able to engage in pursuant to same war. Bummer, I know.

    Now, it seem to me highly likely (based on my vast experience in this area…) that just about every federal court is likely to also regard each on of those issues as also political questions. But I think it’s still vastly less certain that they will so find than that they’ll find a role for themselves in reviewing individual targeting decisions (because some may involve targeting Americans) in an… endeavor… which they acknowledge to be a war for the purpose of the Commander-in Chief power. From all I have read, the probability that courts would intervene in warmaking decisions at thatlevel of particularity is as close to a universally-understood 0.00% as there is in the court-predicting business.

    So as far as judicial review goes on a case-by-case basis, I think the notion that this action could be taken without judicial review is about the furthest thing from a shocking idea given how courts see their role. If there is to be a judicial role here, it will be in defining generally how we know whether we are in a state such that president can issue such particular orders which, in war, will always be unreviewable, or at least go unreviewed, by courts.

    That’s my understanding of the law and jurisprudence at play here. However, I. A. N. A. L. If there is any setting straight to be done, I am all ears.Report

    • Avatar Michael Drew in reply to Michael Drew says:

      teh. heh.Report

    • Avatar Michael Drew in reply to Michael Drew says:

      …disallow… while at the same time allowing… (not a second disallow).Report

    • Avatar Burt Likko in reply to Michael Drew says:

      Just so. If we use the intellectual and legal regime of war to address these sorts of issues, then there is not, will never, and ought not to be judicial review of decisions about who, what, where, when, or how particular targets are taken out.

      But if the AUMF were a proper declaration of war it would have been titled a “declaration of war” and a specific enemy would have been identified within it. The AUMF comes close to that and we have generally assumed that it is a declaration of war or its functional equivalent.

      So given that we are not in a proper war, nor properly at peace, but rather somewhere in between, we need to devise some means of dealing with appropriate checks to prevent abuse of power while still allowing that power to be effectively exercised when appropriate to do so. Schraub’s article points me to thinking that neither the criminal law nor the law of war provides satisfactory means of achieving those safeguards.

      Perhaps, as you suggest, some form of judicial review is the way to get there — maybe not like the judicial review involved in getting search warrants, but rather like the wiretapping review done in the Foreign Intelligence Surveillance Court.Report

      • Avatar Patrick Cahalan in reply to Burt Likko says:

        > So given that we are not in a proper war,
        > nor properly at peace, but rather somewhere
        > in between, we need to devise some means
        > of dealing with appropriate checks to
        > prevent abuse of power while still allowing
        > that power to be effectively exercised
        > when appropriate to do so.

        How much of this is a “have cake and eat it too” problem, and how much of it is real?

        We have a legal mechanism for one, and for the other. Do we need to have a third, or perhaps ought we instead to fish or cut bait?

        If we want to be at war with non-state actors who are hiding inside some nation’s borders because we want to use the rules of war to deal with them, doesn’t it behoove us to just declare war already? Or walk up to the country in question and say, “Look, we’re done screwing around, here. You’ve got a choice. Either really cooperate with us in a peaceable state to get rid of these guys, or we’re throwing down, and we’re going to blow up that mountain range and everybody that’s hiding in it.”

        How much of this is an artifact of the problem that some of these guys are hiding in Pakistan, and we don’t want to throw down with Pakistan?Report

  11. Avatar Katherine says:

    Roughly the same conclusion that I came to, but you did it far more analytically and your explanation is excellent.Report

  12. Avatar Lyle says:

    Let me pose a historical analogy: Take Tokoyo Rose who was an american that broadcast propaganda for the Japanese in WWII, would it have been appropriate to bomb the studio where she was broadcasting?

    I am not sure but there are lots of rumors of wanted dead or alive posters in the old west but its not clear if they are real. In many respects the law enforcement situtation in failed states is sort of like that in the west in the 1860s and 1870s. Perhaps that is an analogy to look at.Report

    • Avatar Burt Likko in reply to Lyle says:

      I think we’re far from a failed state when the effectiveness of our military is an unquestioned given at home and abroad, and within our citizenry we have an ongoing and likely to be efficacious debate about how to use that military consistently within the rule of law.

      Tokyo Rose is a good analogy, though — the difference being one highlighed in Michael Drew‘s thoughtful comment above — in WWII, we had a proper declaration of war against the Empire of Japan. Tokyo Rose was working as an agent of the Empire of Japan actively subverting the war effort and so under the law of war (which unquestionably applied given the Congressional declaration of war) was a legitimate target. Anwar Al-Awalki was not at all unlike Tokyo Rose, the difference being the modified legal background to his death at the hands of the American military and quasi-military.Report

  13. Avatar George T says:

    Well, let’s remove the foreign soil and war aspect and suppose we had a unabomber type holed up in Montana in a compound so ingeniously designed that we couldn’t get anyone inside to arrest him, but snipers could see him walking around with his iPhone detonator that could set off bombs in UPS packages scattered across the US.

    Would it be legal for law enforcement to tell the S.W.A.T. team snipers to put a bullet through his head, without a court order or judicial review? If so, then taking out Al-Awalki was similarly legal,, without the confusion over war powers and jurisdiction.Report

    • Avatar Stillwater in reply to George T says:

      Would it be legal for law enforcement to tell the S.W.A.T. team snipers to put a bullet through his head, without a court order or judicial review?

      Only if it was a response to a legitimate, perceived imminent threat to safety and security. If the threat was/is not imminent, then courts have to get involved.

      But the US government isn’t justifying the killing of AA on the grounds of imminent threat (or they haven’t yet, so far as I know). Rather, they’re justifying it under the broad powers granted by the AUMF.Report

  14. Avatar Stillwater says:

    In other words, we cannot say with any degree of precision whether the killing of Al-Awalki was lawful because the law has not armed us with sufficient analytical tools to sort out which regime — law of crime or law of war — is to be used in this situation.

    So I’ll ask the question the other way: Does the AUMF accord the US government the power to unilaterally determine who can be targeted with the use of lethal military force? Eg, being a member of AQ appears to be a sufficient condition for the state’s justified use of lethal force independently of citizenship. If so, then why isn’t this a settled issue?

    If not, then what provisions from other existing laws would make the killing an unjustified use of lethal force?

    I mean, I’m very sympathetic to the framing of the dilemma Straub puts forward, but is the dilemma one that is legally sustainable? Surely government would say that the broad powers accorded the executive under the AUMF justify this action. What specific provisions – other than the claim of a right to due process (a claim which government would reject in any event based on the AUMF) – would justify the claim?

    So my question goes the other way here: why think that the apparent tension between the rights entailed by citizenship conflict with the authority granted to government is actual rather illusory?Report

  15. Avatar Jaybird says:

    This ain’t the extreme at the margin of what we can do… it’s the new baseline.Report

  16. Avatar George T says:

    What’s ironic is that Bill Ayers must be wondering who he’d been working beside all those years. Ayers also ran a terrorist organization bent on bringing down the American government, set off bombs in the Capitol, was also a US citizen, and now he finds his close friend has no qualms about having such people assassinated. Not even Richard Nixon went that far.

    Perhaps long ago they had a discussion about the powers of the President regarding terrorists.

    Bill Ayers: I am Bill. Bill I am.
    Obama: That Bill-I-am. That Bill-I-am. I do not like you, Bill-I-am.
    Ayers: Would you kill me here or there?
    Obama: I would kill you here or there. I would kill you anywhere.
    I do not like you, Bill-I-am. I would kill you, Bill-I-am.
    Ayers: Would you kill me on the phone. Would you kill me right at home?
    Obama. I would kill you on the phone. I would kill you with a drone.
    I would kill you in your house. I would kill you like a louse.
    I would kill you here or there. I would kill you anywhere.
    I do not like you, Bill-I-am. I would kill you, Bill-I-am.
    Ayers: Would you kill me in a truck? Would you kill me like a duck?
    I would kill you in a truck. I would kill you like a duck.
    Ayers: Would you kill me in Bremen? Would you kill me in Yemen?
    Obama: I would kill you in Bremen. I would kill you in Yemen.
    I would kill you in a truck. I would kill you like a duck.
    I would kill you with a drone, while you’re talking on the phone.
    I would kill you with no court. I would kill you with a snort.
    I would kill you here or there. I would kill you anywhere.
    Ayers: I’m voting for McCain.Report