News sources announced yesterday that Anwar al-Awlaki, a radical Muslim propagandist for al-Qaeda, was killed in Yemen by American drones. As many observers and people leaving comments on blogs and news websites have noted, this represents a victory for the United States in one sense. Al-Awlaki, an American citizen born in New Mexico who moved to Yemen, was a native speaker of English and Arabic, which gave him huge reach as a promoter of the vile ideas that led misguided youth like Nidal Malik Hassan, Umar Farouk Mutallallab, and at least three of the 9/11 hijackers to kill, or attempt to kill, thousands of American citizens. In promoting international war against not only the United States and western regimes, but also “illegitimate” (in his view) regimes in the Muslim World, al-Awlaki and his message led directly and indirectly to thousands of wasted lives of Christians, Jews, Muslims, and others. And while someone of any of these faith backgrounds (or a non-faith background) should hesitate to celebrate the death of another human being, al-Awlaki will hardly be missed by this author.
However, the way in which the United States government pursued the assassination of al-Awlaki is illegitimate and raises grave concerns about American civil rights in the 21st century. In April 2010, President Obama approved the “targeted killing” of Mr. al-Awlaki without judicial approval. At that time, American and international civil liberties groups raised concerns about this move. The American people were not informed about the process by which an American President and his unelected National Security Council had approved the killing of an American citizen. This was the first time in American history that I am aware of that an American government had explicitly authorized and sought the death of an American citizen. Iva Toguri, a U.S. citizen of Japanese extraction who broadcast anti-American radio programs from Tokyo during World War II in the Pacific, was not indiscriminately killed during the war, for example, but rather arrested afterwards and tried for treason. Both she and al-Awlaki implicitly proscribed themselves from the protection of the Constitution by engaging in war against the USA, but the difference in their treatment is striking.
The move raised several questions. No attempt was made, as far as I know, to formally charge al-Awlaki with treason, to designate him a pirate (i.e. hostis generis humanus, someone outside of the protection of national law), or to strip him of American citizenship before organizing his murder. As several comments in the most recent New York Times reporting on the story underlined, the 5th Amendment of the Constitution appears to forbid the killing of citizens within the territory of the United States without due process. Even if an American citizen in, for example, Nebraska, murdered dozens of fellow Americans in a supermarket, plead guilty to the action, and there were clear video evidence that he had committed the act, this individual would still be entitled to a jury trial before being submitted to justice. I am unaware of precedents of an American citizen claiming to declare war against the United States, but I suspect that in such cases the individual would be charged with treason and, again, after a trial, likely sentenced to death or life in prison.
Others worried about a double standard. Many Westerners were distressed when it appeared that the Russian government organized the murder of Aleksandr Litvinenko in London. I suspect that American public opinion would be quite negative if, for example, the Chinese government launched assassination operations against Chinese nationals living in Washington, DC without advance notification of the American government or seeking to charge the Chinese in question with a crime.
We should emphasize that the process that led to Mr. al-Awlaki’s death was not entirely outside the law. Two civil rights groups, the ACLU and the Center for Constitutional Rights, filed a lawsuit against Barack Obama, Leon Panetta, and Robert Gates demanding an injunction preventing the target killing of al-Awlaki. (Several academics and a member of the Board of Trustees of the Center for Constitutional Rights criticized the move to “represent” an al-Qaeda terrorist, a bizarre criticism that to me misses the point of the lawsuit entirely.) However, in December 2010, John Bates, a U.S. District Court Judge appointed by George W. Bush, dismissed the case on the grounds that it violated the “political questions doctrine” – the well-established idea that government acts, but especially those of a highly political nature, such as a declaration of war (or in this case the attempt to execute an American citizen) – are not subject to judicial control. The only actor suitable to consider these highly political questions, the doctrine goes, are elected officials directly accountable to the American people through elections and/or protest. In theory, in other words, an American citizen can find him or herself in a position where he is fair game for the American intelligence and military complex, yet unable to lobby his or her own government demanding clarification of the grounds for his or her placement on a kill list.
(To emphasize something: I disapprove most strongly of al-Awlaki’s message and the ideology he stood for. I consider al-Qaeda and the ideology it represents illegitimate, and the presence of people like al-Awlaki in the Middle East and their ideas floating around has been an intellectual catastrophe for the Muslim World. The American people and any American government cannot, under any circumstances, tolerate acts of war against American citizens without doing something. However, the discussion that I suggest we need to have is not whether this specific person, al-Awlaki, merited being killed or not [many would say he did], but whether as a precedent or in general it is all right for the executive branch of the United States government to order the murder of American citizens without disclosing its reasoning for doing so. I personally think that it is not, and, if the American people affirmed that they approved of such a policy or shift in American governance, I would be content to resign myself to the democratic choice or, if I disagreed strongly enough with it, to file a constitutional suit or take further action.)
Part of why I find the al-Awlaki precedent disturbing, or at least interesting, is because it echoes some of what Carl Schmitt, the German jurist whose work I have translated and edited portions of, wrote about in the 1930s and 1940s. Schmitt, an acerbic critic of the League of Nations, was obsessed with changes in what he called “the concept of war.” We might think of war as a pretty self-evident concept, but as he pointed out, there was a significant difference between a world in which was was carried out exclusively between states (i.e. nations clumped up into states or empires that collectively made the political decision to fight another state or empire), and one in which individuals could become parties to war, too.
Another significant concern was whether war was seen as a criminal action or not: after war, or during war, was the goal to apprehend or kill the other party’s leadership and treat them as villains, or was it to subdue an enemy and sign a treaty with them resulting in (often devastating) concessions? To put it more concretely, think of why or why not it would have made sense for Union authorities in the American Civil War to charge Confederate soldiers individually with the crime of treason, as opposed to doing so just with Southern leadership. As Walter Russell Mead has correctly written, for example, Lincoln did not hesitate to order the USS Kearsarge, an American warship, to sink the CSS Alabama, a Confederate raider ship, with the crew on board. But what Mead misses is, one, that Confederate soldiers belonged to another state (the CSA) and hence were not American citizens, and that, two, while the Confederate sailors were killed, they were collectively killed in the course of war, not individually targeted for assassination.
Schmitt fretted over the turn in his own time to a concept of war that was not a war of states but rather an international civil war, one in which decisions and responsibility about the justice of wars devolved to individual state citizens. Individuals called up to a draft in such a world could legitimately refuse to fight in the War in Iraq, but could also opt-in to fight in Afghanistan, depending on how they feel about the conflicts. In such a world, moreover, state governments might wage “war” against individuals, whether of their own states or other states. This scenario, Schmitt feared, was one of extreme chaos and disorder. The grand conflicts of the 19th century and the First World War that Schmitt grew up with were horrifying, but the scenario of international civil war was one in which all clarity of rights and responsibilities in conflict became blurred.
The relevance to the al-Awlaki case is this. September 11th and the subsequent attempt by the Bush Administration to wage a “War on Terror,” against groups like al-Qaeda which only had a liminal relationship to states like Saudi Arabia, Pakistan, and Afghanistan was justified insofar as it was necessary to protect American lives. Many of the parties initially targeted, such as bin Laden, had been rendered stateless and stood outside the protection of international law. Assassinating these modern-day pirates could be justified in public fora by American lawyers, judges, and citizens, and to kill one of them hiding in a third-party country would have been just as justified as 17th century Spain or England hunting down a reckless pirate claiming “refuge” in a third country even as he rejected all other norms of international law.
Al-Awlaki, like bin Laden and others whom the governments of Saudi Arabia, Yemen, Egypt, etc. had disowned as citizens and thus released from the protection associated with national citizenship, rejected the norms of international law and sought to wage war qua individual against great states like the United States, the United Kingdom, Egypt, and so forth. But I worry about the U.S. government eliding any moment of public decision when it becomes clear that al-Awlaki, in trying to harm other Americans, has lost his membership or right to live within an American political community. By abetting the murderers of September 11th, he certainly did lose his claims to such protection normally accorded to U.S. citizens, but the Obama Administration never made the crucial step of removing his citizenship, charging him with treason, or at least making public and clear the grounds on which he was to be killed – grounds on which the American people could choose to vote for or not vote for Mr. Obama.
Again, in this specific case, al-Awlaki promoted and abetted the deaths of thousands of innocents. In some moral sense, to kill him was justified. But American citizens find themselves today faced with a murky legal situation in which we are at “war” without our representatives having explicitly authorized it; a “war” in which the President and unelected authorities can order the murder of American citizens without public discussion or judicial oversight. I have plenty of my own doubts about how our current President has treated this unprecedented step, but in the future, as we find ourselves with different Presidential leadership – whether in 2012 or later – we may find ourselves regretting this move.