The Targeted Killing of Anwar al-Awlaki

Anwar al-Awlaki, a U.S. citizen, was targeted and killed by a U.S. Predator drone in Yemen on September 30, 2011. Although the Obama Administration has steadfastly refused to publicly release the memo that purports to justify the targeted killing, several (surely selective) leaks paint a picture of the governments argument in support of the strike. In addition, the attempt by Nasser al-Aulaqi (father of Anwar) to pursue an injunction in federal court gives some insight into a judicial interpretation of the issue (the D.C. District Court ruled in favor of the government on several grounds). Despite the assertions of both the Obama Administration and the court, several scholars, civil liberties organizations and commentators remain immensely skeptical of the legality of al-Awlakis assassination. U.S. Government Position The government memo, according to sources who have read it, lays out a very narrow, fact-specific (thus not establishing a precedent, the administration argues) framework through which such a strike against an American citizen is justified.1 The executive branch determined Anwar al-Awlaki to be an operational combatant against the United States and to have played a prominent role in terrorist attacks against the United States including Nidal Hasans November 2009 assault on Ft. Hood and Umar Farouk Abdulmutallabs (a.k.a. The Underwear Bomber) attempt to destroy an American airliner over the city of Detroit on Christmas Day of 2009.2 The administration further determined that al-Awlaki was an influential leader within al-Qaeda in the Arabian
1

Charlie Savage, Secret U.S. Memo Made Legal Case to Kill a Citizen, The New York Times, Oct. 8, 2011. http://www.nytimes.com/2011/10/09/world/middleeast/secret-us-memo-made-legal-case-to-kill-acitizen.html (accessed Oct. 17, 2011). 2 Id.

Peninsula (AQAP). AQAP supposedly maintains a loose affiliation with the central core of al-Qaeda and thus, the administration argues, the attack against al-Awlaki was covered by the Authorization of Use of Military Force (AUMF) of September 18, 2001, which authorizes the President []to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.3 According to the administration, this confluence of executive findings, backed by the legislative authority of the AUMF, provided the legal authority to conduct the drone strike that killed Anwar al-Awlaki. The memo, according to those who have seen it, sequentially considered and dismissed challenges to the governments position. Executive orders banning assassination did not apply as al-Awlaki was a lawful enemy combatant rather than a political leader outside a theater of war.4 A federal law prohibiting the murder of Americans abroad did not apply because al-Awlaki was determined to be an enemy in war time, thus the strike was lawful and not murder.5
3

Public Law 107-40, Joint resolution to authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States, Sep. 18, 2001. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ040.107 4 Charlie Savage, Secret U.S. Memo Made Legal Case to Kill a Citizen 5 Id.

Due Process was afforded to al-Awlaki. The process to which he was entitled was simply much different than that of a normal American citizen accused of a crime. For this point the memo reportedly cites Hamdi v. Rumsfeld6 and Ex Parte Quirin7 for the proposition that American citizen enemy combatants can legally be detained and tried before military tribunals just like noncitizen combatants. The memo further cites Scott v. Harris8 and Tennessee v. Garner9 for the proposition that the government is permitted to put a suspect at risk of death in order to mitigate an imminent risk to innocent bystanders. The memo further asserted that imminent risk applied to Anwar al-Awlaki because he had already been involved in attacks against Americans in the past and was likely to do so again.10

While the government is obligated to attempt, where feasible, to apprehend American citizens rather than simply kill them, an attempt to apprehend alAwlaki in Yemen was not feasible as a result of ground hostilities and the risk to U.S. forces.11

As for the potential infringement of Yemeni sovereignty implicated by the strike, this issue was mooted by a leaked State Department cable revealing that Yemeni President Ali Abdullah Saleh had given the United States explicit permission to launch such strikes inside Yemen.12

Nasser al-Aulaqi v. Obama

6 7

542 U.S. 507 (2004) 317 U.S. 1 (1942) 8 550 U.S. 372 (2007) 9 471 U.S. 1 (1985) 10 Charlie Savage, Secret U.S. Memo Made Legal Case to Kill a Citizen 11 Id. 12 BRENNAN-SALEH MEETING SEP 6, 2009 at par. 2. http://wikileaks.org/cable/2009/09/09SANAA1669.html

The position of the Obama Administration had actually found support in the judiciary roughly a year before the killing. In late 2010, shortly after the story broke that Anwar al-Awlaki had been placed on a target list by the Obama Administration, Anwars father Nasser sued in D.C. District Court seeking an injunction against the extrajudicial killing of his son.13 Nasser al-Aulaqi asserted 1) that the authorized targeting of his son, free of any evidence of an imminent threat, violating Anwars Fourth Amendment right to be free from unreasonable seizures; 2) that the targeted killing policy violates Anwars Fifth Amendment right not to be deprived of life without due process of law; and 3) that the failure of the government to disclose the criteria by which U.S. citizens are selected for killing violates those citizens right to notice under the Fifth Amendment.14 D.C. District Judge John Bates ruled against al-Aulaqi, stating 1) that Nasser did not have standing to sue on behalf of Anwar; 2) that the determinations of Anwar alAwlakis status and the imminence of his threat constituted non-justiciable political questions; and 3) that the state secret question need not be reached (though the language of the opinion suggests the judge was sympathetic to the governments argument for state secrets privilege). Standing Because Nasser al-Aulaqi, not Anwar, appeared in court to assert Anwars rights in pursuit of an injunction, Nasser had to establish that he had standing to argue on Anwars behalf. The question of standing has been a common flashpoint in War on Terror litigation as a result of the fact that many of the potential plaintiffs are detained indefinitely

13 14

Al-Aulaqi v. Obama, 727 F. Supp.2d 1. Id. at 15.

or in perpetual hiding abroad, thus making the likelihood of these men appearing in court to argue on their own behalf exceedingly remote. Next Friend Standing In order to proceed as anothers next friend, one must provide an adequate explanation for why the real party cannot appear on his own behalf, be truly dedicated to the best interests of the real party, and have some significant relationship with the real party.15 While acknowledging that Nasser al-Aulaqi indeed has a significant relationship with his son, the court ruled that he failed to establish the other two requisites. The government contended, and the court agreed, that Anwar al-Awlaki did not sufficiently lack access to the courts, within the meaning of Whitmore, to justify next friend standing for his father. Because Anwar could simply present himself at the U.S. Embassy in Yemen and assert his Constitutional rights, the government argued there was no basis for asserting that Anwar al-Awlaki lacked access to the courts. While Nasser argued that such an attempt by his son would invite attack by the U.S. government, the government argued that they are prohibited from attacking under such circumstances and would of course accept his peaceful surrender.16 The memorandum from the ACLU and the Center for Constitutional Rights rejected this reasoning, arguing that the government lacks the authority to summarily execute fugitives from justice simply because they refuse to present themselves to the authorities.17 The ACLU/CCR memo also decried the governments surrender argument as doubly troubling in light of the fact that Anwar alAwlaki was not publicly charged with a crime, either in the United States or Yemen.18
15 16

Id. at 16, citing Whitmore v. Arkansas, 495 U.S. 149 (1990). Id. at 18. 17 ACLU & CCR Reply Memorandum in Support of Plaintiffs Motion for a Preliminary Injunction, Oct. 8, 2011 at 9. 18 Id.

Ultimately, the court agreed with the government that Anwar al-Awlaki did not lack access to the courts and could assert his own Constitutional rights by presenting himself to American authorities in Yemen if he wished to do so.19 The court also ruled that Nasser al-Aulaqi was not affirmatively dedicated to Anwars best interests. While acknowledging that Anwar may well have believed it was in his best interests not to be killed in a missile strike, the court ruled that Anwars public statements evinced no desire in Anwar to avail himself of the protections afforded by the Constitution and courts of the United States. The ACLU/CCR memo argued that Anwars public statements implied no such rejection and that Anwar al-Awlakis public silence on the matter supports an inference in his favor.20 Third Party Standing In order to achieve third party standing to assert the rights of another, a litigant must show 1) that he himself has suffered a concrete, redressable injury in fact adequate to satisfy Article IIIs case-or-controversy requirement; 2) that he has a close relation to the third party; and 3) that there is some hindrance to the third partys ability to protect his or her own interests.21 The court also stated that there is a de facto fourth requirement, incorporated into the Powers test, requiring that there be no genuine conflict of interest between the litigants interests and those of the absent third party.22 Nasser al-Aulaqi argued that the loss of his son plainly constituted a profound injury and satisfied the first prong of Powers, that the father-son relationship easily constitutes the requisite close relationship for the second prong of the test, and that the standing assassination order

19

al-Aulaqi v. Obama at 18. ACLU & CCR Reply Memo at 10. 21 al-Aulaqi v. Obama at 28-9, citing Powers v. Ohio, 499 U.S. 400, 415(1991). 22 Id. at 29.
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against Anwar al-Awlaki (as well as his status hiding in Yemen) easily satisfies the third prong of the Powers test.23 Again the court ruled against Nasser al-Aulaqi, holding that the emotional harm suffered by a parent who loses a son to an extrajudicial killing is not sufficient harm to satisfy the first prong of Powers,24 and that, despite the arguable satisfaction of the hindrance requirement, Nasser did not satisfy either the close relationship or aligned interest requirements for third party standing.25 The court ruled that Nasser al-Aulaqis interests were not only not aligned with those of his son, but potentially in conflict, stating, whatever the reason for Anwar Al-Aulaqis failure to seek legal redress for his alleged inclusion [on the kill list] a mistrust of or disdain for the American judicial system, a desire to become a martyr, or a mere lack of interest in pursuing a case thousands of miles away from his current location this Court cannot subvert the purpose of the Powers prudential standing requirements by adjudicating rights unnecessarily when the holders of those rights do not with to assert them.26 The court then determined that because the governments alleged actions were not designed to interfere with the father-adult son relationship, Nasser al-Aulaqi could not satisfy the close relationship test laid out in Haitian Refugee Center v. S Gracy, 809 F.2d 794.27

23 24

ACLU & CCR Reply Memo at 11 et seq. al-Aulaqi v. Obama, at 37. 25 Id. at 40 et seq. 26 Id. at 46, 27 Id. at 47-48.

The court, therefore, rejected all of Nasser al-Aulaqis claims for lack of standing.28 The court then discussed the issue of whether these claims, even had standing been established, are justiciable at all. Political Question Doctrine Nasser al-Aulaqi argued that the question of the governments authority to target and kill his son was no less justiciable than the question of whether the executive branch can indefinitely detain an American citizen captured abroad, which the Supreme Court adjudicated in Hamdi v. Rumsfeld; can indefinitely detain non-citizens at Guantanamo Bay, which the Supreme Court addressed in Rasul v. Bush and Boumediene v. Bush; or charge and try suspects in ad-hoc military commissions, which the Supreme Court addressed in Hamdan v. Rumsfeld.29 al-Aulaqis brief goes on to cite Justice OConnors plurality opinion from Hamdi, [w]hatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.30 Any other outcome, al-Aulaqi argued, would result in the executive, which must obtain judicial approval to monitor a U.S. citizens communications or search his briefcase, assuming the authority to kill that same citizen without any obligation to justify its actions before a court or the public.31 If the governments theories are adopted, al-Aulaqi

28

The court also rejected a claim under the Alien Tort Statute on the grounds that Nasser failed to state a cause of action and because the United States had not waived sovereign immunity under the statute. Id. at 49 et seq. 29 ACLU & CCR Reply Memo at 22-3. 30 Id. at 23, citing Hamdi v. Rumsfeld, 542 U.S. 507, 535-36 (2004). 31 Id. at 1.

argued, no American will ever be in a position to seek protection from the courts when faced with credible threats of assassination by his or her own government.32 The court reiterated that national security, military matters and foreign relations are quintessential sources of political questions.33 The court ruled that the resolution of the case would require a judicial determination of the precise nature of al-Awlakis affiliation with AQAP, whether AQAP and al-Qaeda are sufficiently linked for strikes against AQAP figures to fall under the AUMF, whether al-Awlaki is a concrete, specific, and imminent threat, and whether there are reasonable non-lethal means for al-Awlakis apprehension that would render deadly force unnecessary. The court determined that these types of questions are precisely those the political question doctrine is designed to remove from the courts.34 The court, therefore, held al-Aulaqis claims to be non-justiciable political questions. State Secrets Privilege According to the court, the state secrets privilege is premised on the recognition that in exceptional circumstances courts must act in the interest of the countrys national security to prevent disclosure of state secrets, even to the point of dismissing a case entirely.35 The court cited the Ninth Circuit in laying out two applications of the state secrets privilege. One, the so-called Totten bar, completely bars the adjudication of a claim where the very subject matter of the action is itself a matter of state secret, the other, the so-called Reynolds privilege, remove[s] the privileged evidence from the litigation but does not necessarily require the claim to be dismissed.36
32 33

Id. at 1-2. al-Aulaqi v. Obama. at 67, citing El-Shifa Pharm. Indus. Co. v. U.S., 607 F.3d 836, 841 (2010). 34 Id. at 69. 35 Id. at 80, citing Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1077 (9th Cir.2010). 36 Id. at 81, citing Mohamed.

Nasser al-Aulaqi fought the invocation of the privilege and incredulously attacked what he called the irony of the government asserting state secrets privilege when the entire action was a direct byproduct of a coordinated effort by the very same government to tell the world about its intentions to kill Anwar al-Awlaki.37 al-Aulaqi also argued that, because the action of the sovereign in taking the life of one of its citizens [] differs dramatically from any other legitimate state action, the application of state secrets privilege to this case is unconscionable.38 Ultimately, because the court rejected Nasser al-Aulaqis claims on standing and justiciability grounds, the court refused to reach the state secrets question, citing Mohamed v. Jeppesen Dataplan, Inc. for the proposition that the state secrets privilege should not be invoked more often or extensively than necessary.39 Counterarguments to Obama Administration and D.C. District Court Scholars, civil libertarians, and political commentators have made several forceful counterarguments condemning the strike against al-Awlaki. These counterarguments attack both the legal and factual underpinnings of the governments position. The factual objections attack the veracity of the facts proffered by the government (what few of them have been proffered anyway). Commentators assert that Anwar al-Awlaki was not a concrete, imminent threat,40 that he was not actively fighting on a battlefield,41 and that both his role in AQAP and his connection to al-Qaeda proper were overstated by the U.S.

37

ACLU & CCR Reply Memo at 45. The court responded to this concern in a footnote, stating that the leak of some privileged information is not cause for refusing to grant the privilege to other information. alAulaqi v. Obama at 83, fn17. 38 Id. at 46, citing Garner v. Florida, 430 U.S. 349, 357-358 (1977). 39 al-Aulaqi v. Obama at 83, citing Mohamed v. Jeppesen Dataplan, Inc. at 1080. 40 See Robert A. Levy, Awlaki and Due Process, Cato @ Liberty, Oct. 1, 2011. http://www.cato-atliberty.org/awlaki-and-due-process/ 41 Id.

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government in an attempt to make the premises fit the conclusion.42 43 The administrations steadfast refusal to formally present whatever evidence it possesses against Anwar alAwlaki poses an obvious hindrance to an inquiry into the facts of the case. This refusal is the source of many of the legal counterarguments to the governments position.44 The legal arguments largely mirror those made by Nasser al-Aulaqi and dismissed by the D.C. District Court as political questions. The counterarguments focus on the meaning of imminence in the legal context, the legal significance of the infeasibility of al-Awlakis capture, and the separation of powers/justiciability issue. Imminence The executive branch clearly has the legal authority to use deadly force when such force is necessary to neutralize an imminent threat to the agents of the government or to innocent bystanders without implicating due process protections. To justify the immediate use of deadly force against a citizen, however, the threat posed by the citizen must likewise be immediate.45 The Obama Administration argues that because al-Awlaki had participated in attacks in the past (participation for which he was not charged, notably) and continued his propaganda campaign calling for more attacks in the future, he constituted an imminent threat to the safety of Americans and thus the executive branch could carry out the killing without infringing al-Awlakis due process rights.
42

Gregory Johnsen, A False Target in Yemen, The New York Times, Nov. 19, 2010. https://www.nytimes.com/2010/11/20/opinion/20johnsen.html 43 al-Awlaki was also, notably, given a posthumous promotion by the U.S. government in order to emphasize his operational status. See Greg Miller and Alice Fordham, Anwar al-Aulaqi gets new designation in death, The Washington Post, Sep. 30, 2011. http://www.washingtonpost.com/blogs/checkpoint-washington/post/aulaqi-gets-new-designation-indeath/2011/09/30/gIQAsbF69K_blog.html 44 See David K. Shipler, Crime or War: Execution or Assassination?, The Shipler Report, Oct. 1, 2011. http://shiplerreport.blogspot.com/2011/10/crime-or-war-execution-or-assassination.html, and Julian Sanchez, Four Thoughts on the Anwar al-Awlaki Assassination, Cato @ Liberty, Oct. 4, 2011. http://www.cato-at-liberty.org/four-thoughts-on-the-anwar-al-awlaki-assassination/ 45 ACLU & CCR, Memorandum in Support of Plaintiffs Motion for Preliminary Injunction at 20, citing Tennessee v. Garner, 471 U.S. 1.

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Many commentators have argued that such a framework does not justify the use of deadly force in circumstances like those surrounding Anwar al-Awlaki because the concept of imminence put forth by the U.S. government in this case is far broader and more liberal than the courts have ever allowed. The ACLU/CCR memo, for instance, argued that the entire concept of a kill list prohibits the satisfaction of the imminence tests used by the courts. That the government can continually authorize, for months at a time, the killings of U.S. citizens shows that the strikes are not an immediate response to an immediate threat but a premeditated response to a nebulous future threat.46 The argument that past violent actions are sufficient to establish a persons continual imminent threat is also troublesome as a precedential matter. If a persons past behavior can be used to establish an imminent future threat, it is unclear how that person can ever get out from under the governments standing authority to kill him. Infeasibility The primary counterargument to the Obama Administrations suggestion that the government only has an obligation not to use deadly force when feasible is that the limitations of such a regime are difficult to derive. There does not seem to be a geographical component to the governments argument, for instance. If infeasibility justifies the use of missile strikes abroad to neutralize threats too dangerous to apprehend, could it not also justify strikes domestically in situations that pose immense dangers to law enforcement? While the chance of such an application is negligible and perhaps ridiculous, is that negligibility and ridiculousness a function of the applications illegality or merely its political unpopularity?47
4646 47

ACLU Memo at 15. See Julian Sanchez, Four Thoughts on the Anwar al-Awlaki Assassination and David K. Shipler, Crime or War: Execution or Assassination?

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The larger question, as Julian Sanchez points out, is: who gets to make the ultimate judgment on the feasibility question in the first place? When the executive branch determines that a capture is infeasible and thus justifies the use of deadly force, is there any check at all on this authority?48 Both the imminence and infeasibility analyses are rooted in jurisprudence, and thus it is essential to their practical relevance that these issues be justiciable in the first place. The D.C. District Court agreed with the Obama Administration that they are not, but that position too has come under considerable attack. Separation of Powers/Political Questions A common refrain in the criticisms of the governments position (and that of the D.C. District Court) is the purely executive nature of the relevant factual and legal determinations. The invocation of political question doctrine leaves the executive branch the sole judge of every relevant fact determination. The executive branch maintains the kill list, the executive branch decides what criteria qualify a citizen for placement on the list, and the executive branch carries out the strikes. If such executive powers truly are beyond the reach of the judiciary, are they limited at all beyond the Presidents grace? And even assuming in arguendo that the AUMF authorizes the President to exercise these powers, is it clear that Congress had such powers to delegate in the first place? As the ACLU and Center for Constitutional Rights argued in their memorandum in support of Nasser al-Aulaqis prayer for injunction, the courts have repeatedly and explicitly stated that the Bill of Rights has extraterritorial application to the conduct abroad of the U.S. government directed against U.S. citizens.49 The United States is entirely a creature of the Constitution. Its power and authority have no other source.50 How, then,
48 49

See Julian Sanchez, Four Thoughts on the Anwar al-Awlaki Assassination ACLU & CCR, Memorandum in Support of Plaintiffs Motion for Preliminary Injunction at 8, citing In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 157, 167 (2d Cir.2008) 50 Id. at 9, citing United States v. Verdugo-Urquidez, 494 U.S. 259, 270 (1990).

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can Congress (through the AUMF) and the President (through the kill list) make determinations about how much process is due to American citizens or about the imminence of a threat posed by a citizen free of any and all judicial oversight or remedy?51 Are there no checks or oversight on the executive branchs determinations of infeasibility and imminence? This concern was aptly articulated by Robert Levy of the Cato Institute, who stated, [t]he separation of powers doctrine, if it means anything, stands for the proposition that citizens cannot be killed on command of the executive branch alone, without regard to the Fourth and Fifth Amendments.52 The status of al-Awlakis behavior further complicates the analysis. Clearly Fourth and Fifth Amendment claims are justiciable generally. Surely Congress could not, free of judicial oversight, pass a law delegating to the president sole authority to determine the extent of due process protections for American citizens. The general justiciability of executive determinations of imminence and infeasibility is evident as well, or else there would be no jurisprudence for advocates and critics to cite in defense of their positions. So what makes al-Awlakis Constitutional and factual claims political questions to be sorted out without the oversight of the judiciary? Under the Obama Administrations logic, the relevant distinction is perhaps that between a criminal and a wartime enemy.53 This position is logically problematic in the context of this case. If the debate is whether al-Awlaki is a criminal, to be afforded the protections of the U.S. Constitution, or a battlefield enemy, entitled only to those protections to which all battlefield enemies are entitled, then the invocation of political question doctrine seems
51

The ACLU/CCR Memo cites Hamdi v. Rumsfeld for the proposition that even citizens on the field of battle are entitled to due process when captured, to say nothing of citizens hundreds of miles from any battlefield. 52 Robert A. Levy, Awlaki and Due Process 53 See David K. Shipler, Crime or War: Execution or Assassination?

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self-defeating. By hinging its application of the political question doctrine on the idea that issues of foreign and military policy are quintessentially the province of the political branches, the D.C. District Court was, in effect, ruling that al-Awlakis case was an issue of military or foreign policy rather than a criminal law enforcement effort. By refusing to decide the merits of the case, in other words, the court may well have decided the merits of the case. Conclusion The legal experts in the Obama Administration have gone to great lengths to justify the use of deadly force against Anwar al-Awlaki and to put civil libertarians at rest regarding the precedential import of their argument. They have created a narrow and factspecific framework for the use of missile strikes against enemy combatants who are, in the governments view, too threatening to leave alone and too dangerous to capture. The failure of the administration, however, to release its internal justification memo and its failure to disclose what, if any, additional evidence it has implicating al-Awlaki as an imminent threat to Americans is just cause for grave concern. Further concerning is the insistence of the administration that its decisions to place a citizen on a kill list and to subsequently kill that citizen are beyond the scope of judicial oversight. This concern is compounded by the fact that the only court to hear this argument agreed that the courts have no role to play in these executive determinations. No matter how narrow and fact-specific the administration makes its framework, forceful and well-grounded objections will remain as long as the executive branch continues to unilaterally represent prosecutor, judge, jury, and executioner in this area of American law.

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