The Legality of Extrajudicially Killing an American Citizen

Anwar al-Awlaki
Anwar al-Awlaki
Anwar al-Awlaki
Anwar al-Awlaki

On Friday, Sept 29, 2011 a U.S. drone attack in Yemen killed two U.S. citizens, al-Qaeda leader Anwar al-Awlaki and al-Qaeda magazine editor Samir Khan.  A secret Justice Department memo authorized the targeting of al-Awlaki, which, according to senior intelligence official, was necessary for the CIA to proceed with the extrajudicial killing of an American. However, because America is not at war with Yemen and Al-Awlaki was not officially classified as an enemy combatant, the killing has been criticized by many as illegal under both domestic and international law and raises serious issues of the interplay between the two in terms of both policy and practice.

Although the U.S. attack can be considered as contrary to provisions in international law that ban countries from assassinating their enemies,[1. Black’s Law Dictionary defines assassination as “the act of deliberately killing someone especially a public figure, usually for hire or for political reasons.”] and domestic law, which prevents deprivation of life absent due process of the law, the CIA memo declared that the killing of an American is lawful so long as he was an enemy combatant and can’t be arrested.

Al-Awlaki was born in New Mexico to Yemeni parents, carried dual Yemen and U.S. citizenship, and earned a degree in civil engineering from Colorado State University in 1994.  Although he was not charged with any crime, the Obama administration accused him of having had a direct role in the 2010 al-Qaeda attempt to bring down two U.S. cargo aircraft and inspiring the actions of Army psychiatrist Maj. Nidal Hasan’s attack on Fort Hood, Texas on November 5, 2009, which left 13 dead. The administration argues that these activities support al-Awlaki’s classification as a “legitimate target” under U.S. and international law.

The specific provisions in international law related to targeted killing of an opponent within the context of war are clear, yet in application, such terms have been construed and tailored to justify contrary state actions. Under customary international law, the 1904 Hague Convention IV on the Laws and Customs of War on Land states that it is “especially forbidden – …To kill or wound treacherously individuals belonging to the hostile nation or army….” Article 23(b) of the Hague Convention of 1899 outlaws “treacherous” attacks on adversaries and can thus be interpreted as prohibiting attacks on enemy leaders or “assassinations.”  Finally, under article 37 of the Additional Protocol to the 1949 Geneva Convention Relating to the Protection of Victims of International Armed Conflict (Protocol I), “[i]t is prohibited to kill, injure or capture an adversary by resort to perfidy” or treachery.  Applicability of such provisions necessarily relies on adherence to common definitions of the pertinent terms.

In recent years the U.S. and Israel have reframed the terminology of such “assassinations,” framing them as “targeted killings” and defined the victims as “enemy combatants” who are therefore legitimate targets wherever they are found and thus, executing them would not be prohibited under international law.

In July 2010, the ACLU filed a lawsuit on behalf of al-Awlaki’s father, Nasser al-Awlaki, challenging the government’s authority to target American citizens who are suspected but not charged with any crime, far from any clearly defined battle zones, and without an imminent threat to the lives of American citizens. However, the Obama Administration defended its authority to use military and paramilitary force against al-Qaeda and associated forces beyond “hot,” or traditional, battlefields such as Iraq or Afghanistan, and a federal court dismissed the case on December 7, 2010.  Further support was provided that the citizenship of certain belligerents does not shelter them from being targeted.

Additionally, in 2001 Congress endorsed the right to kill members of al-Qaeda and their confederates virtually anywhere in the world in passing the Authorization for Use of Military Force bill.  The Bush Administration reasoned that it was no longer bound by legal constraints requiring the government to give suspected terrorists due process because terrorism is an act of war, rather than a crime.  The Obama Administration has continued to follow this policy.  Indeed, it argues, the killing of U.S. citizens could also be defended under international law as an act of self-defense, given CIA intelligence about al-Awlaki’s role in planning attacks against America.

Support for the attacks has come from former Vice President Cheney, who applauded President Obama for having carried out a “very good strike.”  He said that said that the administration has the right to target American citizens outside the U.S. when the nation is at war, as it has been since the 2001 attacks in New York, Washington and Pennsylvania.  Others who echoed this sentiment include Texas Governor and GOP Presidential candidate Rick Perry and Democratic ex-Representative Jane Harman, who was until recently the top Democrat on the House Intelligence Committee.

On the other side of the debate, the lack of due process and rights afforded by the U.S. Constitution raises questions about Executive power and brings up the slippery slope argument.  “If we allow such gross overreaches of power to continue, we are setting the stage for increasing erosions of civil liberties and the rule of law” says Center for Constitutional Rights (CCR) executive director Vincent Warner.

Ron Paul, the Texas congressman seeking the GOP presidential nomination also alluded to the slippery slope argument when he said that we must think very seriously about the practice of “assassinating American citizens without charges” and he emphasized concerns that the American people will start supporting an accepted practice of the president assassinating people who he thinks are “bad guys.”  The tailored nature of the CIA’s report backing the killing of al-Awlaki, however, can be considered as addressing the slippery slope argument because it focuses on al-Awlaki specifically due to his U.S. citizenship.  However, under other circumstances, absent the citizenship factor, such a report would be less necessary and similar assassinations could become commonplace.

The most resounding legal argument against the attacks has come from those such as Mary Ellen O’Connell, Notre Dame law professor, who say that the attack was “immoral, illegal, and dangerous” because, among other things, “[t]he United States is not at war in Yemen.  This was the killing of a criminal suspect with no attempt to arrest.”

There are, as always, the policy and moral underpinnings.  If such a targeted assassination of one man may save the lives of many, should it be deemed acceptable, regardless of his citizenship? While some people answer yes to this question, acceptable and legal are not one in the same, and while the law is not clear on the matter of assassinations, what we have here is a situation in which the U.S. government specifically targeted and killed a U.S. citizen, who undoubtedly had a constitutional right to due process of the law.

Al-Awlaki publicly (but not formally nor effectively) renounced his U.S. citizenship, it is unlikely that Yemen would have turned him over to the U.S. government so that his right to due process could be exercised, and he is accused of being a leader of a terrorist group; consequently, the argument rests that arrest was likely impossible and therefore, the controlling international and domestic law provisions were not applicable, or at the very least, were open for interpretation.  The debate surrounding this recent execution is evidence of the changing face of international law and the further blurring of the line between legality and morality in the decision-making process.  It also highlights the relevance of the inter-play and interaction between domestic and international law.