Homeland Security Watch

News and analysis of critical issues in homeland security

September 30, 2010

Killing a fellow citizen: Four frames on the present reality of Anwar al-Awlaki

Filed under: Legal Issues,Terrorist Threats & Attacks — by Philip J. Palin on September 30, 2010

Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free. The Federalist No. 8, p. 33 (Hamilton)

–+–

The President will not confirm or deny, but it is likely a secret document has authorized agents of the government to kill Anwar al-Awlaki, a citizen of the United States (shown above).  Mr. al-Awlaki has not — yet — been charged with crimes against the United States.  No court hearing or other aspect of regular due process has been undertaken to consider charges against the accused.

No matter how else we might disagree, I hope we can all agree that unilateral action by the executive to kill a citizen is a serious matter deserving careful consideration by citizens.

Last weekend a number of citizens gave the issue more careful attention than is typical of the blogosphere.  See context and comments at: al-Alwaki and us: Where do the rights of citizenship end?

In these comments — and elsewhere — I perceive four frames-of-reference being applied to the prospect of the President’s men or women killing our fellow citizen:

1. What is the most pragmatic choice? What decision and action is most likely to reduce the immediate threat of Mr. al-Awlaki?

2. What is the most ethical choice? What is most likely to reinforce sustainable relationships? (Some of the relationships are international, some interpersonal, some are relationships between values, others…?)

3. What is the best legal approach? What principle and/or precedent and/or argument preserves or advances an appropriate balance of liberty and security?

4. What is the best political choice? What decision-making and action-taking process is most likely to sustain democratic principles and practices under duress?

I understand the responsibilities of citizenship include listening to my government, listening to my fellow citizens, observing reality as best I can, and applying my values and reason to reach a decision — or identify further information needed to reach a decision or to justify a non-decision — which I should then communicate to my fellow citizens for their consideration.

Since the weekend I have tried to behave as a citizen and have concluded: 

  • There is sufficient pragmatic justification for the executive to take unilateral action to kill Mr. al-Awlaki.  
  • There is a substantial ethical justification for lethal action.  I can imagine a thoughtful chief executive feeling ethically compelled to take such action.
  • The authorization to kill a citizen without judicial review is almost certainly illegal and unconstitutional.
  • The political implications of unilateral lethal action by the executive against a citizen depend a great deal on what happens in the future and how the decision is used by others.

In other words, for me it is a split decision. (The confines of a blog — with any hope of being read — make it difficult to justify these conclusions.  But in links provided at the close of this post I point you to sources that had particular influence on my deliberations.)

This deliberating has, however, helped identify criteria by which I could square these four frames and reach a more coherent decision.   The legal framework for extraordinary executive action of this sort must be made much more explicit.   It is the secrecy of the executive in this matter that most offends our legal standards and generates the greatest potential for profound political mischief.

There is an urgent need — and the case of Mr. al-Awlaki presents the opportunity — to establish a new body of law that much more clearly and precisely sets out due process appropriate for the so-called Age of Terror or this Long War or our struggle against violent extremism.  Whatever we call this challenge,  we are faced with “continual effort and alarm attendant on a state of continual danger” and we do not need Alexander Hamilton (or even Lee Hamilton) to tell us why this is a threat. 

Among the strongest nations, once liberty is earned it is seldom taken away by outsiders.  But mortgaging liberty on a false promise of security is a recurring tale.  Too often the debt is called.   In his big, difficult, and wonderful book Terror and Consent, Philip Bobbitt writes,

The states of consent must develop rules that define what terrorism is, who is a terrorist, and what states can lawfully do to fight terrorists and terrorism. Unless we do this, we will bring our alliances to ruin as we appear to rampage around the world, declaring our enemies to be terrorists and ourselves to be above the law in retaliating against them. We will become, in the eyes of others, the supreme rogue states and will have no basis on which to justify our actions other than the simple assertion of our power. At the same time, we must preserve our open society by careful appreciation of the threat that terror poses to it and not by trying to minimize that reality or to appease the sensibilities of people who would wish it away… We must do this because an open society depends upon a government strong enough and foresighted enough to protect individual rights. If we fail to develop these legal standards, we will find we are progressively militarizing the domestic environment without having quite realized that we are at war. And, when a savage mass strike against us does come, we will react in a fury that ultimately does damage to our self-respect, our ideals, and our institutions (p. 394).

To avoid this self-generated harm there is a need for legislative action prior to the savage mass strike (or cumulative small strikes?).  What is effective and appropriate due process for a “state of continual danger”?  

An explicit legal structure and set of procedures is needed.  I advocate developing this through legislative action — as opposed to judicial action — to more fully expose issues involved.   The legislative process is much more adept at educating and involving citizens.  Through the legislative process we are more likely to cultivate the attitude of readiness and resilience that is most conducive to preserving our liberties.

The upcoming lame-duck session of Congress would be an opportune moment to open hearings on reforming due process guarantees for the present age.

For further consideration:

Pragmatic arguments

Times Topics: Anwar al Alwaki

Who is the world’s most dangerous man?

Anwar al Awlaki: the new Osama bin Laden?

Ethical arguments

Moral Man and Immoral Societyby Reinhold Neibuhr

The Irony of American Historyby Reinhold Neibuhr

Act and Being by Dietrich Bonhoeffer

Legal arguments

Executive Order 11905, Section 5, paragraph g: Prohibition of Assassination. No employee of the United States Government shall engage in, or conspire to engage in, political assassination.

Authorization for the Use of Military Force, September 18, 2001

Hamdi et al v. Rumsfeld (I was especially taken by the Scalia dissent.)

Political arguments

Terror and Consent by Philip Bobbitt

The Federalist Papers by James Madison, Alexander Hamilton, and John Jay

Second Treatise of Government by John Locke

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26 Comments »

Comment by Philip J. Palin

September 30, 2010 @ 6:22 am

There is a new videotape by al-Alwaki that is expected to go public today. I will have to be off line most of the day. If you see a link to the new video, please post the URL.

Comment by HISTORY DETECTIVE

September 30, 2010 @ 6:31 am

Avoid popularity; it has many snares, and no real benefit.
William Penn

It comes to real trust and it’s worth much more than fame. Sorrow is better than laughter. The heart is wise in the house of mourning. For wisdom is defence. Money is a defence. Ecclesiastes 7

You can’t see our shields. Seeing is believing, not seeing and believing is faith. Bankrupt them for offenses. Read Washington Post on Department of Defence time. Less strategy can produce more results, so keep everybody in Spirits. TGIF

Comment by William R. Cumming

September 30, 2010 @ 7:22 am

Okay a great post and Phil thanks for struggling with a very very complicated issue and trying to frame some kind of structure around this difficult problem for an freely elected government.

The current language on the restriction on “assassination” follows and was most recently reflected in E.O. 12333:
“No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”

The troublesome workd “political” was long ago eliminated. And now the troublesome word is “assassination”! Still undefined. I leave to others to determine the definition and appropriateness of the choice of words. Personally I think there is NO EXISTING RESTRCITION under this definition in the situation involving Alwaki. I think the restriction should only apply to democractically elected leaders of recognized nation-states that either conduct or propose to conduct lethal operations against the political leadership of the US or its citizens. The fact that so little oversight of this issue has occurred since the Ford Administration by Congress may be the leading factor in my mind that Congress left fallow the fields plowed by Senator Frank Church and abandoned is leadership role in legislation on critical issues to a democracy.
That stated my disappointment with the Congress is not followed by my belief that the Judiciary has done its job. Since the STEEL SEIZURE case under Truman where each and every SCOTUS member review the Executives authority to conduct actions not grounded in law, Consitution or statutes specically, the Courts have hammered away at the previously wide-ranging power of the Executive to issue orders affecting the general public or special interest and not ordering Executive branch management and operations [this reflected in the disclaimer now part of all Executive orders indicating that NO private rights are created by the EO and no private attorney general can enforce any rights under that order). Oddly despite noting this elsewhere to a number of Editors of Law reviews and Constitutional scholars [is that what the President should be considered?] this trend has NOT been analyzed by legal scholarship anywhere outside of the Office of the Solicitor General of the US.

In other words the restriction may not be applicable IMO because of the language used and the legal status of that language being contained in an Executive Order. Oddly since a compendium produced and issued under the last days of the Reagan Adminstration copeis of extant Executive Orders are not available to the public without dint of much legal research. The Adminstrator of NARA [National Archives and Record Adminstration] should have as one of his/her hightest priorities the complete and updated versions of all Executive Orders in effect and annotated with any Judical analysis or Congressional analysis. FDR fought WWII initially with Exective Orders, the destroyer deal, and that day is probably long gone.
That stated, again I believe that ONLY elected leadership of democratic nation states that adopt the 1st Amendment of our Consitution as its lodestar should be protected from “assassination”! Time to get to work and yes President Obama let’s order the release now of all memorandum’s of law by the SG or OLC in DOJ discussing the Exectiver Order language described above and also analysis of the Judical trend limiting the power of the Executive to order or mandate internal control over the Executive Branch or the direct or indirect impacts on those not employed or contracted with the Executive Branch. And note there is legall no such thing as “color of authority” under the Constitution see C.J. John Marshall in Little v. Bareme (1803?)prohibiting action by anyone in the federal government not authorized to conduct the activity, even impliedly.

Comment by John Comiskey

September 30, 2010 @ 7:35 am

These are the times that try men’s souls.

-Thomas Paine

2010 –Anwar al-Awlaki et al need not try our souls nor our government or democratic way of life.

The legal framework for extraordinary executive action is implicit in the Constitution:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Assuming that executive authorization to assassinate certain enemies of the state is ethical, pragmatic, and implicitly constitutional, explicit legislation affirmed by the Supreme Court is both logical and Constitutional.

IMHO, such a process would be a normative application of the dialectic process inherent to the Constitution. Appropriate legislation “might” afford the government and particularly the executive legal mechanisms to discharge his/her duties in the most extraordinary circumstances i.e. authorizing the assassination of enemies of the state (to include US citizens) in other than battlefield scenarios. That same legislation might provide the procedural justice that “appears” to be lacking in codified law, executive orders, and interpretations of the Constitution.

That said, effusive calls for democratic government demand incontrovertible evidence. In this instance the smoking gun of terrorism. The harsh truth is that the gun is often concealed. Hence, government officials do what they do to protect its citizens from those who have or appear to have guns and thus pose a threat. In the latter circumstance, the law (Criminal Procedural Law) explicitly says that the government need only be reasonable and not necessarily right. Might the proposed legislation define “reasonable?”

While new legislation might ameliorate the appearance of unconstrained government, the moral-pragmatic-political decision to assassinate suspected terrorists will, likely, dominate the debate and hopefully not the decision making process.

Comment by William R. Cumming

September 30, 2010 @ 8:54 am

Decided to also point out that enforcement of Executive Orders is completely unknown possibilty for a President! Does DOJ enforce? Does OMB enforce through budget?

That stated also point out that ARTICLE I, SECTION 8 of US Constitution starts out, in part, as follows:

Congress shall have Power To . . . provide for the common Defence . . .”

Comment by Dan O'Connor

September 30, 2010 @ 10:48 am

I do not pretend to speak with the clarity and experience of Mr. Cummings or for that matter any attorney or law professional. Nor do I suppose to have the acumen of most of the participants in this blog. I do choose to present some alternative, maybe potentially provocative questions or points of view, as a means of provoking conversation. That said I believe this to be a very dangerous precedent in terms of Gov’t acting in its definition and/or interpretation of ARTICLE I, SECTION 8 of US Constitution in part, as follows:
“Congress shall have Power . . . provide for the common Defence . . , To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof .”
I believe this to be the real crux of this terrorism/homeland security debate. I choose not to speculate in this forum of the socializing of America, its politics and/or entitlement scheme. But it is a theme nonetheless.

We have ample evidence that in our “defense” we’ve intercepted, captured, and/or monitored all phone calls and are attempting to do the same with all email. We’re one warrant away from having our entire lives scrutinized by the Gov’t. (Please see Richard Jewel, 1996, Atlanta) Again, this is in our “defense”.

These are facts, not supposition. We have greatly impacted our citizens’ ability to move freely, diminished their expectation of privacy, and have elevated our scrutiny of them on behalf of them… its rather odd, actually.

Over regulation of every aspect of our lives seems to be growing and our citizens appearing to have less and less power to address it. One could make the case for this being one of the key ingredients for the rise of the Tea Party movement. It is ironic that the powers that be who paint these American citizens in such harsh tones would in other instances label the same language and rhetoric used by them as characterized hate speech.

Our particular way of life is an intricate balance; a push and shove of ideas, policies, and pragmatism. Is America different or do we simply like to think so?

So, I therefore make this case; is one man is responsible for this degree of angst?

ONE MAN???

UBL is not state sponsored, or at least not legitimately, he has no army, in terms of conventional forces, and he has no global impact, except in terms of possible fear factor.

Was he lucky or was he good?

His acolytes or followers, to include Anwar al-Awlaki may be linked or have been deemed to link to attacks in the United States and to the homegrown threat…. How big, how relevant, and how impactful the homegrown threat really remains to be seen.

That being said, when the Government has deemed one of its citizens an enemy of the state and issues a “kill” order on them, we should all pause for a second and reflect on what that means. There are provisions or at least there appears to be some interpretive room in the Constitution for making these decisions. Is that a righteous thing or simply a pragmatic one?

Reflect on this; how real and how large and how effective is terrorism as a threat to the United States? Not rhetorically but pragmatically.

Can a terrorist cause the damage that Katrina caused? If they were to smuggle a nuclear weapon(s) through and/over the border and we know this, why aren’t the borders secure?

Think pragmatism and not ideology. What can they actually do? Not theoretically, not red celled in some Gov’t subsidized think tank, not ginned up to pad budgets, but actually do? It must be asked. Is it our response to this threat more damaging to the United States than the threat in and of itself?

What is their capability versus our resilience? How fragile and afraid have we become?
Again, these questions must be asked. Are we creating a more secure, robust nation or creating fear?

Is it really a conglomeration of activity? Is it terrorism, black market economies, narco activity, trafficking, demographics, and a host of supplemental activity making terrorism the uber threat? Again simply a question.

How much treasure has been lost in the last 9 years protecting and defending? How many lives lost in “preventing” and pursuing? If we generally know were UBL is, why aren’t we “there”? It has been estimated on some sights that in excess of 303 times as many people have been killed in Afghanistan and Iraq than in the ghastly attacks of September 11, 2001. What if it’s only half? What if it’s only 10%…

If the people in the WTC were innocent are those in Afghanistan and Iraq as well? And yet, we cannot find the perpetrator… its troubling. Did we create this paradox? Is it actually more effective to fly a drone from 9000 miles away to assassinate someone that to send a two man team in with a rifle or poison? Is it honorable? Is using the drone a reasonable facsimile or degreed separation of an assassination or is it simply the new war? Are we “good” with separating ourselves in having higher value than others?

Are we good with that? I mean, should we all just stay back here and sent robots to wipe out families as collateral damage in hopes of getting one “guy”?

Please recognize the point I am hoping to make here. With so few of Americans now touched by service, do they realize how effective and how devastating our war machine and capability has become?

Again, simply a question.

The Government recently voted on and passed a health care law, a trillion dollar “law” much against the National will of its people. What else can the Government do unbeknownst and very openly against its citizen’s wishes? Is this the true product of terrorism?

Anwar al-Awlaki is an American Citizen. Has he forfeited the right; “. . .that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. . .”.

These are indeed the times that try men’s souls. Does a democratic government demand the incontrovertible evidence necessary for the conduct of such operations? Has our “progressiveness” as a Nation shaped our capability? We are not the same people of post WW2/fighting the “Communist menace”.

Or are we?

Terrorism’s primary motivation is to evoke behavior change upon its target. Terrorism is a political tool. If fear is terrorisms real desired yield and fear is an emotion, what are we doing about diminishing fear? Is fear real? Is it substantive? Does it have different outputs? Are political parties, agendas, constituencies, and movements all predicated on fear or the conquering of it? Are we afraid of UBL and his actions or are we afraid of ourselves and what we covet and want for ourselves? Do we fear our government or do we fear ourselves?

Maybe that might be the toughest question of all.

Comment by William R. Cumming

September 30, 2010 @ 11:30 am

Responding to Dan’s comments which raise excellent points in a highly personal opinion my problem is that since 9/11/01 much has been left to chance not calculation. Each Executive Branch component has its own ideas and designs and these are often fed through the incompetence of Congress because of the egos and hubris of the various members. As DAN points out it is Congress that is supposed to make the laws, not the Executive Branch but now the specter of so-called “Secret Law” raises its ugly head. There is no such thing as “SECRET LAW” and to the extent anyone in the Executive Branch thinks so they are a clear and present danger. Thus, I always come back to the Rule of Law as opposed to Man recognizing its limitations and deficiencies. I recently watched for probably the fifth or sixth time after many years the movie of 1966 “A Man For All Seasons”! I recommend it as addressing but not answering some of the issues raised. Each generation has its own rendevous with destiney in the sense of guarding and defending the best of the past, including democracy. Sometimes the issues arise in mysterious ways and are not all that clearly stated, but Phil in this and other posts has clearly stated the issue. The issue is what is the basis and doctrine and law that control extrajudicial killing of a US national, wherever he or she is located. The question posed is worthy of analysis whatever the answer and its long and short term impacts.

Comment by Dan O'Connor

September 30, 2010 @ 11:51 am

http://www.youtube.com/watch?v=WMqReTJkjjg

Comment by William R. Cumming

September 30, 2010 @ 12:42 pm

SPOT ON as the modern British might say. Thank you DAN!

Comment by HISTORY DETECTIVE

September 30, 2010 @ 7:40 pm

Detective Cain got the shotgun under the chin and if you don’t get me my shotgun back, you will not be very happy with the shell game about to unfold. We’re four fold more dangerous than they are. Get snappin to it.

TGIF Cold lobster and white wine for lunch. For her at least. Stone soup for Cuba.

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