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Targeting Awlaki: A violation of lawfare?



Awlaki.jpg

According to ABC News, the US may have missed an opportunity to kill radical US-born cleric Anwar al Awlaki because those prosecuting the attack feared "the possibility of criminal prosecution without approval in advance from the White House."

White House lawyers are mulling the legality of proposed attempts to kill an American citizen, Anwar Awlaki, who is believed to be part of the leadership of the al Qaeda group in Yemen behind a series of terror strikes, according to two people briefed by U.S. intelligence officials.

One of the people briefed said opportunities to "take out" Awlaki "may have been missed" because of the legal questions surrounding a lethal attack which would specifically target an American citizen.

A spokesperson said the White House declined to comment.

While Awlaki has not been charged with any crimes under U.S. law, intelligence officials say recent intelligence reports and electronic intercepts show he played an important role in recruiting the accused "underwear bomber" Umar Farouk Abdulmutallab. Awlaki also carried on extensive e-mail communication with the accused Fort Hood shooter, Major Nidal Hasan, prior to the attack that killed 12 soldiers and one civilian.

According to the people who were briefed on the issue, American officials fear the possibility of criminal prosecution without approval in advance from the White House for a targeted strike against Awlaki.

One wonders if the same thinking is going on regarding Adam Gadahn, or Abu Azzam al Amriki, the American wanted for treason who serves as an al Qaeda propagandist?

As shown by the confusion over the interrogation and eventual reading of rights to Umar Farouq Abdulmuttalab, the Christmas Eve bomber who nearly destroyed an airplane over Detroit, the administration clearly has not thought through the implications of treating the battle against al Qaeda as primarily a legal battle instead of an all out war. Until these issues are resolved, there are going to be a lot of missed opportunities, and there will be plenty of finger-pointing from the military and the intelligence services.



READER COMMENTS: "Targeting Awlaki: A violation of lawfare?"

Posted by Mike at January 25, 2010 2:49 PM ET:

Try him in absentia on treason charges, sentence him to death, and let the CIA carry out his sentence.

Posted by anon at January 25, 2010 7:04 PM ET:

someone else can speak to the purely legal arguments better than i can, but awlaki deserves to be targeted and assassinated for providing material support to those who are attacking our country. this guy is not just another radical obscure mullah preaching venom against the US, he is actively recruiting combatants and fundraising for militancy. most importantly IMO, he is an ideological leader of the group who has proven that he can recruit disaffected western muslims for terror operations - that fact alone should call for his death, let history decide whether it was "lawful" to kill him later, americans, arabs, muslims, non-muslims will be safer as a result...at the very least put a PRICE on his head for capture.

Posted by VIKING 3 at January 26, 2010 4:34 PM ET:

GOOD JOB MR. PRESIDENT AND ATTY GENERAL HOLDER, OUR INTELLIGENCE COMMUNITY AND MILITARY NOE FEAR OUR OWN LEGAL SYSTEM MORE THAN THE ENEMY. GOOD JOB!

Posted by Mike Hollins at January 26, 2010 5:22 PM ET:

This is not an easy question. That's just why this administration should have decided long ago whether it would try to kill jihadists like Awlaki and Gadahn if it should find them. The officials responsible have had many months to provide for this contingency, and yet they are only now researching the legal issues? That is inexcusable incompetence.

The Supreme Court has held that "citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war." Ex Parte Quirin, 317 U.S. 1, 37 (1942).

This decision concerned a group of Nazi saboteurs that landed in the U.S. by U-boat with plans to sabotage several targets. One of the men claimed he was a U.S. citizen. The Court accepted his claim but said it made no difference. The man was convicted in a military tribunal and executed with his fellow saboteurs. The problem now is that we probably couldn't try Awlaki, Gadahn, etc. without capturing them, and that may be nearly impossible.

The best plan might be not to make these people direct targets. The planners of drone attacks are never sure just who's near the marked man. As a rule, we find out later that an attack killed some other jihadists also, or killed them instead of him. The U.S. isn't obligated to protect a citizen who's chosen to associate with unlawful enemy combatants it might be trying to kill.

Or, we might give the Yemeni air force some good reason to kill Awlaki, and let them do it.

Posted by James at January 28, 2010 2:58 AM ET:

There's only one thing worse than an enemy in time of war, and that's a traitor. At least an enemy (at least in most cases) will try to shoot you in the front, but a traitor will stab you in the back.

Also, I'm not fully convinced that this guy is or ever was a US citizen in the first place. Just because he may have been born here in transit doesn't automatically entitle him to be deemed an American citizen, certainly not permanently so.

Even if he was or ever was a US citizen, he most certainly would have to be guilty of treason in the worst degree.

That guy is NOT an American citizen. Even pretending just for the moment that he ever was an American citizen, he renounced such citizenship long ago, both in deeds and words he has publicly used.

Also, concerning the lame duck logic of a (so-called) "executive order" (signed by GW Bush of all people) that Obama would have to sign off on to eliminate this guy (based on the absurd premise of this guy supposedly being classified an "American citizen"), this too is ridiculous.

Only Congress has the constitutional authority to legislate (i.e., "make law") in a matter such as this.

A sitting or acting president should not be bound by or constrained by the dictates or the plethora of so-called "executive orders" of previous presidents since these were not explicitly authorized or passed into law by Congress.

Eliminate the occupier Ahlawi. We do it, or the Yemenis do it, just get it done.