By Gabriel Rom
The killing of U.S. citizens by their government is always a very serious event. And when such a killing is done without the exercise of the victim’s constitutionally guaranteed legal rights, it is arguably the most extreme exercise of the powers delegated by the public to their elected officials.
Anwar Al-Aulaqi, an American citizen and purported al-Qaeda leader, was killed in a U.S. drone attack more than six months ago, yet the legality of his killing still remains a vexing question. While the once ferocious debate has now died down, and the media cycle has moved on to the presidential race, this issue deserves continued examination. The central question in this debate is whether the President has the authority to kill an American citizen without due process, and whether Aulaqi represented an exception to this Constitutional right. In this article I will attempt to analyze both the arguments for and against the assassination of Aulaqi.
Who Anwar Al-Aulaqi really was, and what role, if any, he played in Al Qaeda remains a hotly debated topic. The Obama Administration asserts that he played an active role in planning and executing terrorist attacks against America and thus constituted an ‘imminent threat’ that needed to be neutralized. Government officials have claimed that “Aulaqi is no mere messenger, but someone integrally involved in lethal terrorist activities.”
Yet, on the condition on anonymity, other officials within the Administration have expressed skepticism about their knowledge of Aulaqi’s role in Al Qaeda, admitting that “intelligence purporting to show Aulaqi’s hands-on role in plotting attacks was patchy.” Many experts on Yemen, Al-Qaeda and international terrorism echo this skepticism. When probed, the Administration has used the State Secrets Privilege to justify its position that releasing evidence to strengthen the case against Aulaqi would put sources and civilian lives at risk, thereby effectively excluding any legal adjudication on the attack.
The government claims that Aulaqi’s case is extraordinary and that legal precedent does not take into account the global nature of his influence nor his prior communication and involvement with terrorist organizations. Defenders of the attack cite a number of cases in which Aulaqi’s teachings acted as the inspiration for terrorists to plot and carry out attacks as well as evidence that paints Aulaqi as an operational figure in Al-Qaeda. They argue that Aulaqi’s propaganda itself posed an imminent threat to the United States, in addition to his operational role.
Proponents of the attack also state that due process is not a constitutional guarantee: In scenarios where actors present a clear and imminent threat, force is permitted as a last resort. According to terrorism scholar Benjamin Wittes, what is required of the government is “a strong preference for the capture…and the exhaustion of reasonable options for a conventional trial or for military detention with appropriate habeas review.” Is this scenario applicable to the Aulaqi case? Had all options been exhausted? Was his killing indeed a last resort? These questions hinge on what type of war the U.S. is engaged in against Al-Qaeda. Are we facing a permanent threat of an imminent attack, or do we only have the right to attack when we can produce evidence that Al-Qaeda, and specifically Anwar Aulaqi, are actively planning an operation?
Aulaqi inspired or communicated directly with more than ten separate individuals convicted on terrorism charges since July 2009. Notable among these are the Fort Hood Shooter Nidal Malik Hassan, The Times Square Bomber, Faisal Shazad, and numerous others. There is also evidence that Aulaqi gave his personal blessings to Umar Farouk Abdulmutallab, the Underpants Bomber, who if successful, would have blown up a packed Boeing 747. In May 2010, Roshonara Choudhry a former student at King’s College, London stabbed British Labour MP Stephen Timms. In subsequent interviews she referred to Aulaqi as her ‘main inspiration’.
At the time that the White House released the information that Aulaqi was on the U.S. kill list there was evidence connecting Aulaqi with Abdulmutallab in the planning of a bomb plot. In emails between Abdulmutallab’s brother Karim and a figure named the ‘Prof’, who is suspected of being Aulaqi, the two discussed the plot: ‘‘Our highest priority is the US. Anything there…So the question is: with the people you have, is it possible to get a package or a person with a package on board a flight heading to the US?” There is no corroborating evidence that the Prof is Aulaqi, but this what the government claims. Besides this dubious email, there is no evidence in the public domain that Aulaqi was operational in Al Qaeda.
The government also asserts that Anwar Al-Aulaqi had pledged an oath of loyalty to AQAP emir Nasir al-Wahishi and had facilitated training camps in Yemen. The government has never provided credible evidence for this claim, nor has it ever made its case in court. While there are several strong arguments to support the government’s action against Aulaqi, its continued refusal to release any evidence leads to a strong suspicion that their arguments are predicated on assumptions rather than facts. In a case as important as this, does the public not have a right to know how and why the American government killed one of its own citizens? While there is no doubt that Aulaqi was a threat, the central, unanswered question remains: Was he a mere propagandist or an active warrior?
This distinction is hugely important and the proper place for its resolution is a court of law. Yet in the Aulaqi case the Obama Administration has uniformly refused any adjudication of their actions by invoking the state secrets privilege that has effectively closed any and all public discussion on the legality of the Aulaqi assassination. Consequently, in view of the government’s continued refusal to release even redacted information to substantiate their action it is not unreasonable to conclude that they are either lying about his role in Al-Qaeda and killed him for his propagandizing, or they are truly sitting on a trove of damning evidence.
In response to the government’s claims Aulaqi’s defenders assert that as an American citizen, his speech, no matter how despicable and hateful it might be, is protected under the Constitution. If the government has no actual evidence of Aulaqi’s operational role in Al-Qaeda and killed him simply because of his propaganda then this raises serious first amendment issues. Voltaire’s famous quote in which he states ‘I do not agree with what you have to say, but I’ll defend to the death your right to say it’ is more than a pithy slogan, it is an American ideal that our nation is supposed to honor in both word and deed.
The Supreme Court’s unanimous 1969 decision in Brandenburg v. Ohio overturned the criminal conviction of a KKK leader calling for the deaths of public officials. This case makes a strong legal argument that Aulaqi’s speech, while demagogic, is still protected. In another case, Clairborne v. NAACP, the Supreme Court ruled unanimously that those who give fiery speeches are not held liable for any criminal acts inspired by their speech. Is rhetorical support for terrorism protected speech? If so, is that only what Aulaqi was guilty of? Does Aulaqi’s case constitute an exception to this right?
A lawsuit filed by the American Civil Liberties Union on behalf of Aulaqi’s father attempted to address these thorny questions. Yet the court rejected the lawsuit not based on any legal argument but on the fact that they did not have the authority to rule on the legality of the assassination. In an example of logic so circular that it could only be thought up by the government, the Obama Administration states that the lawsuit must be dismissed because the evidence needed to make a case against it is and will remain classified.
Thus, in the final analysis, the relevant claims hinge on the public’s trust in the government. As citizens, many of whom are pleased that Aulaqi is gone, we ache to see evidence that can assuage our fears of a government seriously abusing its powers. Why such insistence on secrecy? Is there a political motive behind the Obama Administration’s repeated invocations of the state secrets privilege? Is it to boost his foreign policy credentials, legality and due process be damned? In the American legal system the onus of responsibility is put on the accuser not the accused. The case of Anwar Al-Aulaqi is a bastardization of the American legal process because there was never even the pretense of a process to begin with.