Homeland Security Watch

News and analysis of critical issues in homeland security

September 25, 2010

al-Awlaki and us: Where do the rights of citizenship end?

Filed under: Legal Issues,Terrorist Threats & Attacks — by Philip J. Palin on September 25, 2010

Anwar alAwlaki is a citizen of the United States.  He has publicly advocated violence against the United States.  He has been directly linked to — and taken responsibility for — several murderous attempts against US citizens, including the shootings attributed to Nidal Hasan at Ft. Hood, Texas.  Mr. al-Awlaki — currently assumed to be operating out of Yemen — is perceived by many as a significant emerging leader of anti-US terrorist operations. 

It is widely understood the President has authorized lethal action against Mr. alAwlaki.  Some have argued that the current military offensive in Yemen, largely funded and otherwise supported by the United States,  among other purposes seeks to capture or kill the rogue citizen. The father of Mr. alAwlaki has petitioned the federal district court in Washington D.C. to enjoin the extra-judicial killing of his son.

According to several news reports, earlier today the US Department of Justice invoked the state secrets doctrine in seeking to have the father’s lawsuit dismissed.  This doctrine was recently sustained in a major decision of the typically “liberal” Ninth Circuit Court of Appeals.

The American Civil Liberties Union and the Center for Constitutional Rights are representing the father.  In response to today’s Justice Department action the civil rights groups released a statement saying, “The idea that courts should have no role whatsoever in determining the criteria by which the executive branch can kill its own citizens is unacceptable in a democracy… In matters of life and death, no executive should have a blank check.”  In late August the ACLU and CCR argued, “It is well established that the government cannot use extrajudicial killing to punish people for past acts, but only to prevent grave and imminent threats.”

I cannot yet find online access to the court documents.  If you know where to get access, please let us know by leaving a comment.

Thanks to the Great Gray Lady — and her reporters and webmasters — you can access the DOJ Motion to Dismiss at http://graphics8.nytimes.com/packages/pdf/world/26AlAulaqi_MTD.pdf

The Times report on the legal action, written by Charlie Savage, is headlined: State Secrets Cited in Effort by White House to Block Suit

The Center for Constitutional Rights provides background on the Plantiff’s case and the original complaint and motion (scroll to the bottom) at http://ccrjustice.org/targetedkillings

Fair warning to those ready to comment on this issue.  I will “unapprove” any comment that does not demonstrate evidence of having read the MTD or otherwise gives attention to the substantive concerns on both sides of this case.  Regular readers know I tend to be rather stubborn on the rights of citizenship.  I bring that bias to this issue, but bias is not enough.  There is too much noise to just generate more noise.   A close reading and analysis of the contending issues would certainly be worthwhile.


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Comment by William R. Cumming

September 25, 2010 @ 2:08 pm

Well don’t have access to LEXIS so no help here. Citizenship IMO is not the paradigm for justice or the rule of law. In other words just because someone off shore does not mean can be killed. Part of the problem deals with issues that go back to revision of the Geneva Convention when by the early 80’s recognized that terrorists might well not fall within the provisions for armed combatants uniformed and subject to control by a nation state. Research was conducted on the application of Article 3 to terrorism but never made public by the Executive Branch. Eventually this issue will bring down a President again IMO. Interesting that we have a current President that taught Constitutional law but not certain of his understanding of International Law or the Law of War or Geneva Convention. So far the whole issue has NOT been treated with the seriousness it deserves. Even sending to the SCOTUS since 9/11/01 nominees without a clue as to national security issues, Law of War, Geneva Convention or UCMJ. And of course the Senate has no clue either. Conducting NO hearings on issues such as whether Predator strikes may violate current international law. Well eventually of course not impossible that NUREMBURG rulings as to individual responsibility as opposed to collective responsibility will come back to haunt either the current or a future administration. If “war” is the paradigm against non-state actors then that concept is not workable since designed since the Treaty of Westpahia in 1648 to preserve violence as an instrument of state and avoid religious wars in the WEST (note not Christendom!)is now breaking down with apparently inadequate brainpower here or elsewhere to focus on the leading issue of the 21st century–specifically the misuse of technology by individuals to threaten or destroy the lives of innocents for whatever rationale. I expect SCOTUS to uphold the STATE SECRETS doctrine although the facts of the original case relied upon by the federal government have been proved substantially false. We may well reap what others have sowed.

Comment by Arnold Bogis

September 25, 2010 @ 7:17 pm

While I cannot pretend to provide an informed opinion on the legal questions involved, I would like to point out for readers another potential source of analysis.

The “Lawfare” blog is a collaborative effort among several posters. In particular, one is Jack Goldsmith–currently a professor at Harvard Law School but formerly of the Office of Legal Counsel at the Department of Justice during the Bush Administration and author of “Terror Presidency.” So while some may disagree with his particular analysis, it is certainly informed by his own practical experience as well as his legal philosophy (and note that he has also taken a special interest in cyber as well):


This post was an early one regarding the decision. There have been previous posts with deeper analysis of the case and I’m sure there will be follow up as well.

Comment by John Comiskey

September 25, 2010 @ 8:14 pm

Twenty three years of law enforcement and military service taught me that there is a mostly subtle but sometime great disparity in theory and practice. Posner’s the Constitution is not a suicide pact maxim rings from the balcony.

al-Awlaki is a terrorist, a human-piranha beyond the realm of criminal law. CCR’s Bill Quiigly is wrong, being able to find al-Awlaki to try him in criminal court is not the same thing as finding him to kill him. Killing him is not the easier option -it’s the only one. Were it not, I would call upon al-Awlaki to surrender himself to American authorities to be tried and most likely convicted and to serve the rest of his life in prison. The reality is that is just not an option.

Reconciling democracy with terrorism is a challenge. I trust that the officers of the American government understand that Constitutionally protected terrorism is an existential threat.

To my protectors on the forward edge of the battlefield wherever that may be, pull the trigger and thank you and God Bless.

Comment by Mark Chubb

September 25, 2010 @ 8:23 pm

Both sides of the question have merit. On one hand, the government has adequate legal remedies available to deal with the traitorous or seditious conduct of its citizens. In the few instances where the law provides capital punishment for such offenses against the state, it still affords defendants ample access to and protection of due process. At the same time, officers of the government have the right to defend themselves against lawful combatants on the field of battle, including those of their fellow citizens who take up arms against them.

Objections to the extrajudicial killing of Mr. al-Awlaki typically begin with the assumption that he is targeted for what he has said as well as what he may or may not have done. We clearly do not have all of the information about his actions required to judge the validity of the second part of this premise, and that is what we rely on courts of law to do for us anyway. As for Mr. al-Awlaki’s statements, however provocative they may be, the state has to make a compelling case that these are incitements to sedition and not simply an exercise of free speech absent compelling evidence of complicity in the planning or execution of specific acts of violence.

My problem with the use of the state secrets exception in this case involves the chilling effect it seems to impose on the reasonable exercise of due process in a case that clearly hinges on the actions of a citizen against his own state. The United States has always taken a rather narrow view when it comes to the renunciation of citizenship. One cannot simply lose citizenship by virtue of one’s actions. A formal, voluntary and irrevocable process must be invoked. Citizenship of another state does not qualify, even when that state is an enemy of the United States, which Yemen is not.

Targeting enemy combatants who are not armed or actively engaged in hostile acts against the United States, its forces or citizens remains a highly contentious issue well beyond the case of Mr. al-Awlaki. Some reports suggest that the armed forces and the Central Intelligence Agency apply vastly different standards to their deployment of these weapons (UAVs in particular) and the application of the discretion to deploy them.

Neither the armed forces or the CIA are instruments of our justice system. The credibility of our use of force in the fight to end or control violent extremism hinges on holding the moral high ground by upholding human rights and the rule of law. I fear that the inappropriate use of force to kill one of our own citizens lowers us to the standards of our adversaries. Taking the life of Mr. Al-Awlaki without due process of law could well end up becoming an “own goal”.

Comment by Mark Chubb

September 25, 2010 @ 10:04 pm

Clearly, I am not a lawyer. But I find the government’s arguments puzzling in at least one respect. The government seems to relies on Mr. al-Awlaki’s claims of responsibility and leadership of AQAP as grounds for its decision to target him for extrajudicial killing. In the absence of a criminal complaint and successful proceedings against him, these claims remain unproven.

In criminal cases, the state retains a burden of proof even in instances where a defendant provides a signed confession. In capital cases, especially, the state must demonstrate that it has sufficient corroborating evidence to find the admission credible if not proceed in the absence of the defendant’s statement. (In addition, the state must demonstrate that the defendant provided the admission under appropriate circumstances, which involves voluntary action either by spontaneous utterance or under informed consent.)

Mr. al-Awlaki clearly has an interest in avoiding personal representations in this matter, and is protected from giving evidence against himself or otherwise aiding the government’s case.

Am I missing something? Has the government received an indictment against Mr. al-Awkali? No, it has only considered charges against him. As such, his failure to make himself available is entirely reasonable. He is not a fugitive from justice, but rather a U.S. citizen living abroad, and still enjoys all the rights and protections of citizenship.

Even as it argues that Mr. al-Awlaki’s father has no standing to act on his behalf, it suggests that he has failed to make substantial arguments on his son’s behalf to question or otherwise undermine the government’s assertion that Mr. al-Awlaki is a member and operational leader of a terrorist organization lawfully targeted by the United States. Why would he argue such a thing when the government has neither sought an indictment nor admitted targeting his son for execution?

The government argues that Mr. al-Awlaki is presuming what actions the President or his officers would take against his son. At the same time, the government itself has fueled this debate by acknowledging it has developed targeting policies despite keeping the substance of such protocols under wraps.

Suggesting that a decision whether to target Mr. al-Awlaki is a political or foreign policy question, not a judicial matter, suggests that his actions in the future make him a target not his alleged past bad acts. That suggestion is laughable on its face and undermined by other aspects of the government’s argument.

I appreciate that the intelligence community has more than likely compiled a substantial dossier of evidence implicating Mr. al-Awlaki in crimes against the United States. But withholding or shielding this information from consideration by a judicial officer deprives Mr. al-Awlaki of access to justice. By doing so, I fear the decision also deprives the United States of the standing to claim it is a nation of laws not of men.

If and when officers or agents of the United States find themselves in armed conflict with Mr. al-Awlaki, they will clearly have just cause to engage him as a hostile enemy combatant. In the absence of such an opportunity, it seems to me the United States has an obligation to argue its case against Mr. al-Awlaki in an appropriate court.

Comment by William R. Cumming

September 26, 2010 @ 1:51 am

Okay not liscensed to practice law anymore in any state. Inactive in VA BAR!

Quick review, Phil, of the DOJ files MTD looks like NO STANDING arguments will prevail. But that motion IMO will go down in history for Footnote 14 on page 29-20. Could be wrong but if that is the federal government’s operating theory than Constitutional due process norms have been heavily damaged IMO.
Also the rules for injunctive relief are different in each Federal Circuit with different evidentiary standards prevailing.

The STATE SECRETS doctrine is grounded in the principles that threats to the existence of the STATE should be precluded from judicial review. Note that the country survived a long long time before the erection of this doctrine. I am somewhat expert in Civil Law but not at all in Criminal Law. Criminal statutes have no implementing regulations or the exceptions are very very narrow. Hey withover 100 definitions in the US CODE of “terrorism” which ones will utilized in identification of the critieria needed to extrajudicially end a “terrorist” life?
In civil law there are always arguments against “arbitrary and capricious” action thus the notion of development of an ‘Adminsistrative Record” reviewable by the Judiciary. Ultimately the Courts are the Branch that will need to do the line-drawing on Constitutional issues. But to argue that they have no role is highly questionable. It is this preclusion in a week in which the FBI appears to have used domestic entry even with warrants to prevent “wartime” dissent that I fall on the side of the ACLU on this one even though clearly the standing rules will preclude a victory for them, again IMO.

Well this case is exactly why despite what the strict constructionists like Associate Justice Hugo Black declared does not end Constitutional arguments and Associate Justice Oliver Wendell Holmes “The Constitution is the skin of a living thought” so some such line remains to demonstrate that the life and times of the Justices of SCOTUS will determine ultimately what kind of society and democracy survive in the US. Again as Winston Churchill stated supposedly “Democracy is the worst form of government, except when compared to all the rest”.

Comment by Philip J. Palin

September 26, 2010 @ 6:08 am

The premeditated killing of an individual citizen — or any human being — by unilateral action of the executive should claim the attention of the general citizenry. Such attention should result in the executive being required to defend its decision and intended action. Holding the executive to such public accountability is in the self-interest of each citizen and crucial to preserving the life and liberty of every citizen.

This process is currently underway in regard to Anwar al-Alwaki, a citizen of the United States. I am not competent to discuss the legal details of whether Mr. al-Alwaki’s father has “standing” to bring suit in this matter. But I am glad he has done so.

I have concluded that in this case the executive does have a substantive basis for a premeditated — or so-called, targeted — killing of my fellow citizen. I am persuaded of this in part by the Justice Department’s arguments in the Motion to Dismiss:

The very basis of this lawsuit—the alleged threat of lethal force—does not foreclose Anwar al-Aulaqi’s access to the courts: Defendants state that if Anwar al-Aulaqi were to surrender or otherwise present himself to the proper authorities in a peaceful and appropriate manner, 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. Anwar al-Aulaqi would have the choice at that point, as he does now, to seek legal assistance and access to U.S. courts… That Anwar al-Aulaqi may choose not to come forward and seek judicial relief does not mean he lacks access to the courts or that his father should be able to presume his son wishes to invoke the federal courts and therefore to file suit on his son’s behalf.

The rights of citizenship are bound up with the responsibilities of citizenship. In this case, as an ethical matter — recognizing there are important distinctions between ethics, law, and politics — the citizen has rejected recourse to the courts, has actively evaded legal authorities, and is publicly urging and taking responsibility for criminal actions including murder. There is persuasive prima facie evidence of treason. There is likewise prima facie evidence of a grave and imminent threat from Mr. al-Awlaki. By his own actions the citizen has, arguably, removed himself from the legal protections usually afforded citizens.

Under the Common Law of England it was possible to publicly declare such an individual an outlaw. Caput gerat lupinum. A similar action seems appropriate in the case of Mr. al-Alwaki.

It is the absence of such a public declaration that causes me the greatest concern in this case. I would much prefer that the executive be explicit regarding it’s decision and the rationale for such a decision. In this way, other citizens can participate in a political process of affirming or challenging the claims of the executive. I perceive that the lack of such a public declaration is, in part, due to the need — under current law — to demonstrate an imminent threat. Making a legal case that this standard has been achieved would endanger sources and methods… and we begin to corkscrew into the nether world of state secrets.

In my judgment, this nether world is a much more profound long-term threat to our democracy than the near-term threats posed by Mr. al-Alwaki. The government of the United States will from time-to-time have cause to take tough — even abhorrent — actions. But a democracy should not hide these tough actions from the people on whose behalf the government presumes to act. Precisely how, when, and where the government intends to act need not be explained in advance, but presenting to the citizenry what is intended and why is essential to preserve democratic consent in the essential actions of the state.

Comment by John Comiskey

September 26, 2010 @ 6:08 am

Final point. There is likely much that we do not know about al-Awlaki. In this instance it is highly likely that our government is legitimately withholding information to protect sources and methods.

Transparency in government in all matters is an ideal that is not realizable in matters of national security.

Unconventional warfare requires unconventional countermeasures.

Comment by William R. Cumming

September 26, 2010 @ 7:49 am

Well the process as I see it would first be the holding of open hearings by the respective judiciary committees of the House and Senate. Perhaps in conjunction with the Foreign Relations Committees. This would cover the open source treatment and record of the individual by the US and vice versa. The aim is a formal recommendation by Congress, probably by Public Law, on the issue of revocation of the citizenship of the individual. It could also be a formal recommendation to the President through a Joint Resolution. Then the individual should have his/her citizenship formally revoked through whatever proceeding necessary. And that accomplished. Then the targeting if otherwise justified.

To maintain that a fugitive from Justice in the USA will utilize the judicial system without apprehension first is to construct a legal fiction that undermines the Constitution and the independence of the Judiciary.

Again footnote 14 in the MTD is key. This should be reviewed by scholars, bloggers, the Congress and probably a Presidential Commission. We have the time I believe to get this right and not use the shadows of technology and secrecy to maintain some legal fiction that the President has erected a system of extra-judicial killing that allows none but the President and his minions to understand the justification. This is a fundamental to democracy but of course the military, the CIA and INTEL agencies don’t need to or want to operate especially in a way that makes their actions either reviewable or understandable. The basic problem I have it that the “World” gets it, but the polity of the US does not. The SCOTUS and the courts are struggling with the appropriate line-drawing on the protection of the STATE masked in discussion of the protection of individual citizens and the public generally. Under no event or analysis should they be “excused” from this struggle. The real role of SCOTUS is to formulate law that is understandable for all as makes its best collective judgement on how our democracy can proceed. It does follow the “polls” but it also understands that its published decisions reflect the course of our democracy and its development. Perhaps it will make wrong choices but at least the decisions and their rationale will be understood even if necessary to place those decisions in their time and context.

Since the Courts have largely abandoned Stare Decisis, meaning let the decisions of the past stand, as far as the rationales if not the results, it is clear why judicial appointments are so very very important and it is the lives of the appointees, not just their scholarship that will eventually see democracy through.

What I really found of interest on the MTD is the people whose names appear. Some are familiar. Was the intent to indicate that the more signers the more validity to the document? My guess is the SG reviewed it but fascinating that Civil Division alone was signatory. Would OLC or the Criminal Division have signed off? Or the Deputy AG?
AT this point is a civil case which is fine with me because I would hate to have the relatively new Assistant AG for National Security become a Trial Division to go with the 5 others.

Comment by Mark Chubb

September 26, 2010 @ 9:16 am

Phil, the notion that the state has a right to defend itself against the seditious acts of its citizens is well-taken. But as you note it arises in a context where the sovereign ruler and the sovereign state were seen as much more closely related to one another than they are today. I am far from convinced that Mr. al-Awlaki poses an existential threat to the United States, and as such I am worried that martyring him does more harm than good.

The martyrdom of Mr. al-Awlaki would not only make a fine recruiting tool, but would illustrate just how far the United States is willing to wander from its fundamental footings as a nation of laws. We–the people–need not know the criteria used to target a citizen presumed to have turned against his country as an armed combatant, but I have a hard time accepting that a competent court under appropriate circumstances is not in a position to judge the merit’s of the executive branch case for acting against a citizen.

If Bill is right and footnote 14 is all important in this matter, then we would have to accept that courts have no jurisdiction in a number of administrative procedures used to target criminal offenders, which have indeed come under repeated and intense scrutiny in recent years, particularly those based in forensic technologies and scientific techniques. It’s worth noting that judicial standards in these areas have changed substantially as a result of the findings of flawed scientific analyses and biased interpretations of evidence exposed during criminal proceedings.

I will not mourn Mr. al-Awlaki for long, if at all, if he is successfully targeted and killed by U.S. forces. I will, however, mourn our loss of reason and sense of fairness if this comes to pass as proposed by the administration.

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