Execution of American-born cleric raises questions

The assassination by drone of American-born Muslim cleric Anwar al-Awlaki in Yemen raises questions that should disturb anyone who holds the rule of law as essential to protecting individual rights and limiting the arbitrary power of government. The Obama administration alleges that al-Awlaki committed a variety of bad acts, but the key word is “alleges.” We are taught that no one may be jailed, much less executed, on the basis of mere allegations. This goes back at least as far as the Magna Carta in 1215 and is echoed in the Fifth Amendment to the U.S. Constitution: “No person shall be … deprived of life, liberty, or property, without due process of law.”

Yet al-Awlaki was targeted for assassination by the executive branch of the U.S. government without indictment, trial, or showing of guilt beyond a reasonable doubt. President Obama acted as cop, judge, jury and executioner all in one.

One should note that the Fifth Amendment is not restricted to citizens. Over the last decade, the U.S. government has killed many foreigners with missiles fired from aerial drones on the basis of unproven assertions and hearsay, but it took the assassination of an American citizen to get the public’s attention. (A second American, editor Samir Khan, was also killed in the strike on al-Awlaki’s convoy.)

The allegations against al-Awlaki are vague. Until recently he was said to have “inspired” people who went on to commit or attempt acts of violence. These people include Faisal Shahzad, the would-be Times Square car bomber; Umar Farouk Abdulmutallab, the failed “underwear bomber” on a plane over Detroit; and Major Nidal Malik Hasan, the mass shooter at Fort Hood. But as Glenn Greenwald points out, the U.S. Supreme Court on two occasions (Brandenburg v. Ohio and NAACP v. Claiborne) ruled that speech advocating or “inspiring” violence is constitutionally protected.

It is only recently that the Obama administration has alluded to al-Awlaki’s connection to the al-Qaeda attacks on Sept. 11, 2001. But this is suspect because, as Greenwald notes, right after 9/11 al-Awlaki was seen as a moderate (still in the United States) and was asked to participate in government-sponsored meetings.

The Obama administration insists that al-Awlaki was, not merely an inspirational cleric, but a figure with operational authority in al-Qaeda in the Arabian Peninsula. Yet, again, this is merely an allegation never proven in a court of law, where evidence can be scrutinized independently and witnesses cross-examined. As the Associated Press reported, “The White House refused to offer evidence of al-Awlaki’s role in terrorism.”

Was al-Awlaki the mastermind the administration suggests he was? Middle East scholar Gregory Johnsen wrote before the assassination, “Contrary to what the Obama administration would have you believe, he has always been a minor figure in Al Qaeda.”

But, some will say, holding the Obama administration to the standards of criminal justice is incorrect, because terrorism is not a crime. It’s an of act war. Even if we accept that dubious claim for the sake of argument, many problems arise. There is no congressional declaration of war, which the Constitution requires. (Past violations cannot justify new violations.) Some advocates of unilateral executive action find authority in Congress’s post-9/11 Authorization for the Use of Military Force, but that doesn’t get them where they want to go. The AUMF states,

“That the President is authorized 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 Sept. 11, 2001, or harbored such organizations or persons.”

Al-Awlaki does not fall into this category. Moreover, his killing did not occur on a “hot” battlefield. He was in Yemen, whose president is an ally of the U.S. government. Why didn’t Obama ask that he be turned over or send in a force to arrest him? (Hundreds of terrorist suspects have been tried in American courts, and a good percentage have been convicted.)

Oddly, Obama refuses to tell the American people by what authority he ordered the execution, just as he refuses to release any evidence. Apparently, in the administration’s view, that’s none of the public’s business.

Is this any way to run a republic?

Sheldon Richman is senior fellow at The Future of Freedom Foundation (www.fff.org).