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Anwar Al-Awlaki and Limited Government

September 30, 2011

I’m not going to cry bitter tears over Anwar Al-Awlaki and Samir Khan, American citizens whose assassinations were engineered by the United States government yesterday, but I may shed a few for the Constitution that their killers were sworn to uphold. Al-Awlaki was a Phoenix-born jihadi propagandist who produced anti-American and anti-Western video lectures and sermons for rebroadcast on the web. Samir Khan was a 25 year-old North Carolinian who just last year started a English-language jihadist magazine titled “Inspire.” Khan’s stated publishing goal was to recruit young Muslims to take up arms against the West and specifically the United States.

But it should be noted that neither Al-Awlaki or Khan had renounced his American citizenship. Neither had been tried and convicted of any crime. No attempt had been made to arrest and charge them under US law. There is no evidence that they had directly engaged in armed attacks on the United States or Americans abroad, or that they were conspiring with others to commit specific attacks against the United States or Americans abroad. And the only proof that Al-Awlaki had any hand in the operational planning of terrorist attacks amounts to this: the CIA says so. It was a claim the Agency never even bothered to make against Samir Khan.

So meager, in fact, is the evidence against Al-Awlaki that news outlets reporting his assassination today are at a bit of a loss: CBS News calls him a “U.S.-born cleric suspected of inspiring or helping plan numerous attacks on the United States.” CNN describes him as one “whose fluency in English and technology made him one of the top terrorist recruiters in the world.” Fox News says he was an “ideological leader.” And according to the New York Times, “His Internet lectures and sermons were linked to more than a dozen terrorist investigations in the United States, Britain and Canada. Get that: his lectures and sermons were linked to investigations. And for this American citizen was executed by drone on the expressed, personal instructions of Barack Obama, without formal charge and without trial.

Some will say that by even raising this issue, I am giving succor to terrorists. Such is the inverted totalitarianism of America in the “Age of Terror.” My response is two-fold. First, by any reckoning of the due process rights enshrined in the 5th and 14th Amendments to the Constitution, unless an American citizen is a direct, immediate, and lethal threat to the United States or its citizens, it is manifestly illegal – and certainly immoral – for that citizen to be assassinated by the federal government. Unless, of course, one invokes Nixon’s Law: “When the President does it, that means it’s not illegal.” Second, one would think that those most eager to advance the principle of “limited government” would be out front and center against this kind of extra-judicial murder.  The right-wing often lampoons Barack Obama as a pharoah, but what is more pharaonic than the arbitrary power of life and death in the hands of a mortal, fallible man? John Adams wrote, “Nip the shoots of arbitrary power in the bud, is the only maxim which can ever preserve the liberties of any people.” Yesterday the target of arbitrary power was Anwar Al-Awlaki. Who will it be tomorrow?

  1. September 30, 2011 3:41 pm

    Here is Reuters with opposing legal voices….

    • Mark Gordon permalink
      September 30, 2011 4:01 pm

      I guess what surprises me most, Bill, is that we’re not even going to hear this debate in any kind of mass media. The reporting today was so antiseptic, so fundamentally disingenuous, that you could watch hours of it without ever realizing that a.) Awlaki was an American citizen, or b.) that he was never convicted of anything. Apologists for this sort of thing will claim that it is made necessary by the “war on terror,” whatever that is (it’s certainly not what was going on in Iraq). But this is also a precedent that future presidents may employ or even expand to suit their own purposes.

      • September 30, 2011 4:59 pm

        The 57 page link is instructive in why it is not discussed. It is complex legally and involves within the pdf the same persons as in the Reuters short piece in references within the text. Apparently not many people know the area legally. I live near Manhattan and after 9/11 saw children who lost both parents and were smileless and living with grandparents. One girl kept calling her dad on the cell phone for days every minute. Alwaki was against that but later changed. Before he changed, he was actually at a meeting at the Pentagon. I prayed today for Alwaki and I’m glad he was killed. I’d like him punished deeply in purgatory for a long period not hell but I suspect but have no certitude that he is in hell ( Trent said we could have no certitude outside of revelation). I trust that Harvard law Obama knows he has a viable case on classified evidence by the way… partly since this list of targets could have been challenged by now in Federal court aside from the father’s challenge in Federal court…and that didn’t happen. No one is stopping an International Court from bringing suit. If they don’t, I won’t cry but it might also signal what Chesney writes…that it is within International Humanitarian Law and International Human Rights Law.

      • September 30, 2011 7:14 pm

        ps Mark
        Each of us by the way has from their state the right to kill a home invader A. without trial who is B. an imminent threat to us (and C. is most often a US citizen). The term “imminent” is used by Chesney and others as descriptive of anyone involved in unpredictable, furtive terrorist operations.

      • October 1, 2011 8:53 am

        I trust that Harvard law Obama knows he has a viable case on classified evidence by the way…

        A free society isn’t built on trust of the ruler, but on the rule of law and the transparency of the law being followed by the society’s leaders.

  2. September 30, 2011 3:56 pm

    ps there is a 57 page legal parsing here of a professor who sees it as legal:

  3. digbydolben permalink
    September 30, 2011 9:01 pm

    The Left’s “Messiah,” the god-king-emperor Obama ordered it, so it must be right. And it’ll be right for the Right, when THEIR god-king-emperor is “elected.” What you are looking at is a degenerate ersatz republic which will morph into a “politically correct” fascist state as soon as the financial and economic depression which is inevitable looms.

    Although he’s a nut on economic matters, the only candidate who is standing up for “limited government” and against the slow slide into American-style, media-managed totalitarianism is Ron Paul, and he’s getting my vote by write-in on an absentee ballot from India.

    • Mark Gordon permalink
      September 30, 2011 9:29 pm

      Paul’s brand of libertarianism is hard to take, but as Ralph Nader notes, Paul is dead right on crony capitalism and corporate capture of the US government. And his foreign policy is the only sane one in either party.

  4. Mark Gordon permalink
    September 30, 2011 9:25 pm

    Bill, I get it. You think it’s perfectly okay for the US government to assassinate American citizens wthout due process of law because they profess views that are hateful, or because those views may inspire third parties to commit acts of terrorism. Got it. And you do have Robert Chesney in your corner. He was hired by the Obama Administration to create a legal justification for assassination (and, along the way, to twist the word “immediate” beyond recognition), and he delivered. John Yoo delivered on torture for the Bush Administation, too. You and I both know that finding a lawyer to make a legal argument is like finding a dog to crap on the lawn. Easy. It’s what they do.

    One response to something you wrote above. Can we please stop invoking the “smileless” children of 9-11? I’m about two hours north of New York City on the coast.and I know two families who lost sons in the south building. Like you, I could smell the burning plaster, rubber, and god-knows-what-else for weeks. So what? Does 9-11 justify everything? Forever?

    • September 30, 2011 10:24 pm

      If you actually read the 57 pages, you will not come away as seeing Chesney as gung ho on extra judicial killings. Actually if you go to NPR, they cite another lawyer who notes that due process in this context is not always a trial. Due process in terrorism cases can be a review before e.g. a Congressional Intelligence committee in a war context. St. Thomas believed in the right of tyrannicide as in the case of those plotting against Hitler….again, there you have a non governmental group plotting a killing and no trial but the due process of conferring about the man as evil bent which however was public knowledge. And yes for me personally, I trust Obama to have from his Harvard training a requirement of evidence sufficient to order a killing in this case beyond the evidence versions you cite.
      God in both Deuteronomy and Leviticus in the death penalties for the Jews did not mandate trials but immediate killing by witnesses first …then joined by the community. Was that a perfect system? Not if there was lying witnesses. Every system can go bad.
      Your charge as expressed that Obama hired Chesney to create a justification sounds like the sin of rash judgement. Run it by your pastor. The truth might be that Obama hired him because Chesney already held such a rationale which is legitimate and is not the same as hiring someone to “create”. Run it by your pastor. The fact that most Catholic blogs bash Obama does not justify the sin of rash judgement against him by saying he hired Chesney to “create”.

      • Mark Gordon permalink
        October 1, 2011 10:52 am

        Oh, now I’ve actually sinned against Obama. Hmmm. I’ll definitely add that to the list. And I guess I’ll add sins against Bush II, Clinton, Bush I, Reagan, Carter, and Nixon, too. I was too young to have sinned against LBJ.

  5. October 1, 2011 9:31 am

    What a never ending slippery slope. We’ve given up on trying to capture our enemies and bring them to trial. I for one think there is a perverse desirie for quick and sanitary kills even if capture and trial were possible . But in ‘prosecuting’ the ‘war’ in such a fashion we are displaying our weariness with the demands of judicial procedings and the rewards of confronting a twisted ideology head on.

    A capture and trial (even one attempted with local cooperation) has the advantage of challenging the opposition in public and gaining the moral high ground. These drone attacks have proven to reinforce negative images of Americans that make us appear as morally bankrupt though awesomely powerful with technological superiority. Again, we win a battle and lose a war.

  6. Kurt permalink
    October 1, 2011 10:01 am

    You think it’s perfectly okay for the US government to assassinate American citizens without due process of law because they profess views that are hateful, or because those views may inspire third parties to commit acts of terrorism. Got it.

    I don’t think that is the question. If American citizen Al-Awlaki was working for the Wehrmacht, doing what he was doing, I think the legal basis for the action is clear. We were in a state of war against Nazi Germany and one does not owe a trial with due process to members of the enemy’s hostile forces, even those individuals not directly engaged in combat.

    The legal question is — which I think is an open question — do the same rules apply to a war against Al-Qaeda as against a sovereign state? The world has changed. Non-states are engaged in actions formerly limited to states. It presents new challenges to international law and Christian ethics.

    • Mark Gordon permalink
      October 1, 2011 10:26 am

      If American citizen Al-Awlaki was working for the Wehrmacht, doing what he was doing

      But we don’t know what he was doing, which is why the media found it so difficult to characterize Awlaki. That information is classified (along with just about everything else in the ‘war on terror.’) Again, the justification for making an American citizen an HVT (high-value target) in the Hundred Year War against “terror” is based on nothing more than compartmentalized, secret intelligence the CIA claims to have. Now, that is clearly more than enough for Bill Bannon, who places complete trust in Barack Obama because he has a Harvard law degree. But that’s not enough for me, and it shouldn’t be enough for any citizen.

      And I must say, Kurt, I am very confident you weren’t buying John Yoo’s legal justification for torture under Bush. If “war” against non-state actors has pushed us into new territory on everything from assassinaton (Awlaki) to armed abrogation of national sovereignty (Pakistan, Libya, Yemen), why not torture? The entire justification for torture was that this is a different kind of war requiring different kinds of responses than those we employed against, say, the Wehrmacht.

    • Cindy permalink
      October 1, 2011 10:33 am

      That’s so true Kurt. I don’t know how you combat terror in these instances, because they don’t play by the rules that are set up as today. You don’t have many countries openly endorsing terrorism. Yet it exists and goes on and is a threat to us. Also, didn’t that magazine “Inspire” show or teach people how to make bombs out of household products, almost urging them to use it here in America? So here they sit trying to recruit people from countries that speak English (our country) yet they are living in Yemen, and they are linked to the Christmas Day bombing attempt of a US Airliner. They want home grown terrorists in our country. Clearly this is a problem. So maybe we need new rules to combat this. They are literally traitors.

      • Mark Gordon permalink
        October 1, 2011 10:55 am

        “They” don’t play by rules, Cindy, but we’re supposed to. It’s called the United States Constitution.

        • October 1, 2011 12:11 pm

          And I would say, even more, Christians have higher, more moral requirements even than states. I was reading how St. Cyprian of Carthage was known to discuss how Christians should take in their persecutors and help them medically during the plagues of his day. He said just because they sought to kill Christians doesn’t mean Christians are not to seek to heal them.

      • October 2, 2011 3:04 pm

        Amen, Henry and Cyprian! Our calling is to break the cycle of violence, not to imitate those who succumb to it. Once again, an occasion for a most quotable hymn line: “Save us from weak resignation to the evils we deplore.”

  7. Cindy permalink
    October 1, 2011 11:14 am

    He was the regional commander for Al Qaeda in the Arabian Peninsula. The leader of a foreign terrorist organization that asks Muslims to do Jihad against America. He claimed that Jihad was binding. If we played by the rules and he ended up effectively getting a plan through that killed thousands of innocent people, would our rules still be more important that the those lives lost? To what extent of loss would it take before we changed the rules? I understand the concern, but this man was not just an average person who is an American that lives overseas that was American born. This man encouraged terrorism and is on video saying that Jihad against America is binding. So because he was born here in our country, we should tolerate this, let him set up and try and recruit more Muslims like him to plot and plan to terrorize and kill innocent people? We should allow this to happen and possibly get a plan through like what happened on Sept 11, because he was born here. It does not matter what he actively does, what is more important is that he was born here? I just don’t quite know how to feel about that.

    • Mark Gordon permalink
      October 1, 2011 11:21 am

      Cindy, you have just made the case that he should have been summarily executed, without trial, because of speech. Where does that end? Such is the way tyrannies are born, not destroyed.

      • Cindy permalink
        October 1, 2011 12:39 pm

        Yes I guess I am on the wrong side of things and I have a sinful nature. I just have a hard time feeling bad about this because of the nature of the terrorist and the brutality in which they execute their terror. They go after innocent civilians, and it’s something that really stirs me personally up. So in this case someone that basically has treasonous actions against our country has rights and we have to honor the Constitution of our country. At the same time we honor our constitution this man seeks and encourages others to plot to kill innocent people. Yet I should be for his protection. It’s really something that is terribly confusing. We can’t declare war on Yemen, and we can’t go into Yemen and take him out of there and charge him and prosecute him in our courts. So we should in turn just wait until he possibly harms innocent people, even if he doesn’t directly do it himself, but we should hold out and wait to see if he can get it accomplished because he has rights. What a world we live in huh?

      • Mark Gordon permalink
        October 1, 2011 2:00 pm

        Cindy, perhaps what we should do is stop creating the contexts in which figures like Awlaki and bin Laden arise. As almost everyone acknowledges, the most effective recruiting tools for Al Qaeda have been our support for Arab dictators and the invasion and occupation of Iraq. The same thing is now happening in Pakistan, where our dirty little war has managed to radicalize a huge segment of the population.

    • digbydolben permalink
      October 1, 2011 8:58 pm

      would our rules still be more important that the those lives lost?[Sic.]

      Short answer: yes, Cindy, they would be. Those “rules” keep us human; I’d rather die as a human being than live as soulless cipher.

      • digbydolben permalink
        October 1, 2011 9:48 pm

        Here is the voice of sanity–the kind of voice that the Americans will no longer listen to:

      • Mark Gordon permalink
        October 1, 2011 10:01 pm

        Favorite quote: “An enemy of the state is whoever the state tells you is an enemy of the state. Does nobody see a problem with that?”

      • October 1, 2011 10:24 pm

        Even more favorite quote: “It is high time that states saw human rights not as obstacles to security, but as integral to it. No counter-insurgency is ever won with military force alone.” Author Nawaz hits all the points well.

      • Cindy permalink
        October 1, 2011 11:09 pm

        Maybe he is correct and the only prism in which we view the middle east is security. Yet how can we value life, if we are willing to allow the sought after innocent killing of people in our country? Yes I see a problem with the state telling us who the enemy of the state is. Yet, would you rather wait until a dirty bomb erupts in your city and you could have prevented it, but our hands were tied in the matter. We could have had the terrorist, but we didn’t trust our government to protect us, and we didn’t understand that some things are classified for good reason. We only have one life to live, and I don’t want us to be monsters as a people. Yet we are faced with monsters and sadly we are stooping to their level. This world is ever changing, and people have gotten much more sophisticated in dreaming up ways to act out on terrorism. Couple that with being brainwashed into wanting to be a martyr for your cause. Digby stated he would rather die for the rules of our constitution than live as a soulless cipher. Muslim Terrorists want to die for their cause because they likely feel the same way about what they feel their religion is teaching them. They uphold their belief’s as we want to uphold our constitution. I agree that our constitution was framed out by a Christian culture that wanted to protect it’s citizens. Yet I think that Obama does want to protect the citizens of our country. I just think this is an extremely complicated situation. It’s complex in so many ways. Spiritually, Judicially, Morally. It’s no wonder so many people are torn and confused on the matter.

  8. Kurt permalink
    October 1, 2011 1:45 pm

    If “war” against non-state actors has pushed us into new territory on everything from assassinaton (Awlaki) to armed abrogation of national sovereignty (Pakistan, Libya, Yemen), why not torture?

    I would be against torturing a Wehrmacht officer we had captured; its illegal under international law. I would not be against sending a drone (if we had them at the time) to the Wehrmacht High Command, targeting officers and military strategists even though they were not actually engaged in combat.

    But let me be clear, I was asking a question not proposing an answer. I am unresolved on this question.

    • Mark Gordon permalink
      October 1, 2011 1:52 pm

      Fair enough.

  9. Cindy permalink
    October 1, 2011 1:46 pm

    I am wondering. If Al Qaeda is a stateless military and Al Awlaki worked for this stateless military trying to recruit an army, then does he still deserve the Constitutional protections of a U.S. Citizen?

  10. October 1, 2011 2:31 pm

    Oh, wow. With all the flak you’re taking for decrying an injustice, Mark, I almost hesitate to raise a critique from an entirely different angle, but I’m a bit surprised that as a Catholic you would be more troubled by a violation of the US constitution than by a violation of the human dignity of these two human lives, no matter what country they were citizens of. I am more surprised, or at least disturbed, that so many others would hasten to justify the killings on the basis of everything BUT human dignity. And to anticipate a likely response, the victims’ own denial of the human dignity of others does not, from the standpoint of Catholic Social Teaching, justify their assassination, for precisely the same reason that the violence in their own attitudes is unjustifiable: human dignity is universal and inviolable.

    This story made me feel proud to be Catholic:
    The above comment thread does not.
    Lord have mercy.

    • Mark Gordon permalink
      October 1, 2011 3:40 pm

      Well. Sorry to disappoint you, Julia. I chose to make my critique of this action on constitutional grounds because it was undertaken by the US government with what I consider a very flimsy legal justification. I recognize that there are other dimensions to it, including broader moral questions related to the dignity of the human person. In fact, if as I believe Awlaki was illegitimately denied due process of law that would be ipso facto an assault on his human dignity.

      On the other hand, I think what you would like me to say is that any lethal action taken against Awlaki or someone like him, under any circumstances, would be an assault on human dignity. I’m not sure I can agree with that. I am not at this point a pacifist. If someone is a “direct, immediate, and lethal” threat (my construction), I believe there is a moral right – an obligation, in fact – to intervene in order to protect innocent life. Given what we know about the Awlaki case, I do not believe that test was met, which makes his killing BOTH unconstitutional and immoral, something I said in my post.

      • October 1, 2011 4:16 pm

        I do indeed believe that all killing is an assault on human dignity and that no human life is legitimately ours to take, but even if you don’t agree with this, I hope we can at least agree that the denial of due process is an affront to human dignity regardless of one’s citizenship.

      • Mark Gordon permalink
        October 1, 2011 5:13 pm

        Julia, obviously that’s an admirable stance, and one adopted by many people I consider role models, including Dorothy Day. But it isn’t a position commanded by the teaching of the Church, and I can’t see my way to it yet.

        This is why I always challenge pacifists to take this pledge: “If someone breaks into my house I will not call the police. I will instead attempt to persuade the invader to leave of his own accord.” The reason I use this pledge as a challenge is that the absolutist position on non-violence also means that you can’t outsource violence to be committed on your behalf. American policemen carry lethal weapons. Inviting them into any conflict not only risks lethal violence, but even a peaceful outcome relies on the threat of lethal violence represented by the weapon. If you can honestly take the pledge, then I admire your consistency. If you can’t then there may be some issues you still need to work through.

        For myself, if an armed man is striding purposely into a schoolhouse, he represents a direct, immediate, and lethal threat to the innocent. In that circumstance, the greater respect for human life and dignity is expressed by the one who intervenes to stop him – even lethally – than the one who simply stands by on principle.

      • David Cruz-Uribe, SFO permalink
        October 1, 2011 5:42 pm

        “In that circumstance, the greater respect for human life and dignity is expressed by the one who intervenes to stop him – even lethally – than the one who simply stands by on principle.”

        A false dichotomy Mark. The third path is to intervene non-violently at the risk of one’s own life. I hope to post on this soon.

      • October 1, 2011 6:09 pm

        I agree with you on self defense. David may be imagining a restricted set of felicitous circumstances. If a large muscular man on meth is raping one’s wife when one comes home, a bullet alone is going to stop him shot sideways into his head angled away from your wife to save her.
        Pope Benedict has had the odd habit of imitating John Paul II verbatim calling the death penalty “cruel” and stating that “war solves nothing” both of which are copied literally from JP II (to artificially create a new hermeneutic if continuity) and they are phrases that contradict more traditional statements both of them affirmed in the catechism on both war and dp. And neither man objected to or changed the fact that the Swiss Guard are armed with SIG pistols and H&K MP7 submachine guns which are armor piercing….ie used in a crowded situation, the bullets from the latter could go through two people if the bad guy is not wearing body armor. US ordinary police can’t use such for innocent bystander reasons.

      • October 2, 2011 3:49 pm

        Without wanting to downplay the importance of bringing nonviolence to the personal level, I have two significant problems with the hypothetical what-would-you-do anecdotal argument for the justification of killing:
        1) it presumes oneself (or rather the pacifist) as the only free agent with choices to make, with all other characters in the scenario being somehow preprogrammed to behave a certain way;
        2) it is inescapably speculative. Nobody can predict with certainty what they would do in a high-stress situation they have never yet encountered. However, I certainly hope that the principles I profess and try to cultivate in prayer and action would and do influence whatever decisions are forced upon me.

        That said, I do agree that it would be hypocritical to project nonviolent principles onto the large-scale without being willing to live them out in one’s own life. On either and all levels, what is most needed is prevention of the situations that lead to violence, as you mention above in your suggestion that “perhaps what we should do is stop creating the contexts in which figures like Awlaki and bin Laden arise.” There you’re really getting at just peacemaking, which is a robust third way between “just war” and passive nonresistance that deserves much more attention, and another part of why peacemaking is more than just a choice or even a principle, but a way of life that must become habitual.

  11. Cindy permalink
    October 1, 2011 3:28 pm

    Well it’s getting harder and harder to define what is the ‘battlefield’ of this day and age. This is a man who was actively encouraging others to murder Americans and he was part of Al Qaeda who has sworn to do what it can to destroy America. It isn’t like there isn’t a history or record of this man wanting to do bad things to innocent people and America. I can’t understand how you can insinuate that it is merely only the governments word. Do you really believe it’s all just circumstantial evidence here? A judge in Yemen said he was a terrorist and Yemen had a kill and capture warrant on his head. So being that there is a history here, I find it hard to believe that he was just a propagandist. Why didn’t he come back to the U.S. and face the charges that were against him? Instead he chose to recruit people and conspire to commit acts of terror.

    • Mark Gordon permalink
      October 1, 2011 4:06 pm

      Cindy, haven’t you heard? The battlefield is the whole world. That’s the beauty of the “war on terror.” The enemy can’t be identified or his location fixed. National boundaries mean nothing. No amount of money is too much. Anyone could be a fellow traveler or co-conspirator, which is why your email, cell phone calls and this response will all be filtered and analyzed by the National Security Agency (HI GUYS!). Even “victory” can’t be defined. But the best thing is that the war on terror is self-perpetuating. We’re ten years in and still cranking out enemies. So, here’s the question: cui bono? Who benefits? The answer might be here:

      • Cindy permalink
        October 1, 2011 7:11 pm

        It is troubling. I see both sides and I am at a loss. I really don’t know what would be the best way to handle these situations. I’m miffed by the link you provided on showing how many people have security clearences. That’s almost unbelievable. There is a side of me that feels a lot of concern and I do understand that citizens should have due process. There is also side of me that feels that we do need to protect ourselves. That’s the truth. I just don’t know and I guess this could really get out of control. Yet we do have an enemy and we do know where they are, at least what countries they are operating out of. There really could be circumstances where you have some terrorist and his part is to just sit at his computer and forward strategic points or maybe blueprints or whatever to people that are willing to kill innocent people. We do know where the root of most terrorism is coming from. Muslim extremists.

  12. Kimberley permalink
    October 1, 2011 5:13 pm

    Thank you for this post. Right wing necon Christians as expected are lining up in favor of this disgusting, sinful and unconcstitutional action. And the hypocricy of the supposed anti-war left is breathtaking. They are still trying to indict the prior adminstration and won’t see the warmonger in front of them.

    Blessed John Paul, St. Edward and St Elizabeth, pray that we may finally elect a peacemaker. .

  13. David Cruz-Uribe, SFO permalink
    October 1, 2011 6:08 pm


    I want to stand with you against the tide of folks supporting this act of state violence. I find it extremely troubling on constitutional grounds that the president can order the extra-judicial execution of an American citizen.

    Chesney (In the long PDF linked to above) points to the danger of imminent harm. The problem is, reading more closely, is that he defines imminent pretty loosely. He poses it in terms of a rhetorical question:

    ‘Does this mean that the state must have proof the person is plotting a specific attack, or is it enough to prove that the person is likely to plot some violent attack in the future?”

    His answer is “no”: in his view, to require specific knowledge is too strict a requirement and would bind the hands of the U.S. It is sufficient that the person is “likely” to be part of some, as yet undetermined attack. This strikes me as untenable from a constitutional point of view. In different circumstances, the Supreme Court has argued that in order to act, your knowledge of possible harm must be concrete and specific—vague possibilities are not enough. This is from a free speech case, Tinker v. Des Moines, but I think it establishes a reasonable barrier against extra-judicial killing.

    Are we made less safe by doing this? Yes, in one sense, we are. But that is one of the dangers inherent in playing by the rules. The police could keep us safer if we did not have protections against warrantless searches and coerced confessions, but we have decided that our best interests as a society are served by forbidding both. In the same way, I believe that killing Al-Awlaki does not serve the rule of law.

    • October 1, 2011 6:48 pm

      Past harm counts here. Todays NY Times stated that in scores of cases of small scale terrorism, Alwaki was cited by conspirators on retrieved hard drives etc. as to his urgings being religious permission for their acts.

  14. digbydolben permalink
    October 1, 2011 9:18 pm

    David, many years ago I was confronted by a Nietzschean in graduate school with this scenario:

    “You are an inmate of a concentration camp. You are the favourite Jew or gypsy or homosexual of the camp kommandant. He summons you to his headquarters to tell you that his men are becoming demoralized by the onerous task of operating industrialized death, and he offers you the choice of euthanizing your fellow inmates in the most painless way you can think of, or of being shot immediately. What do you do? Your fellow prisoners are obviously going to die anyway, and you might not, if you make their executions less painful.”

    In my pacifist, “Christian” days, I replied that I could not accept the proposition, and would rather die, and the Nietzschean mocked me and said that I was a typical Christian “weakling” who enjoyed my self-righteousness, at the expense of my fellows.

    However, that is not the answer I’d give him nowadays: the answer I’d give him is that I would attempt to turn the kommandant’s pistol on him, and try to kill him immediately–that that would be an act of SELF-DEFENSE, because my immediate duty in such a situation is to myself, and the kommandant is encouraging me to transform myself into a monster. (Such power over others always corrupts, always becomes, ultimately, enjoyable, like a drug.) Of course, I’d likely die, but I’d die as a human being, not as a monster.

    Those who are unable to see the spiritual dimensions of what is happening to the United States under Dubya, and, now, “Obomber,” obviously don’t understand that the Constitution of the United States, flawed though it might have been, was, in very many ways, the product of a Christian culture that sought to protect its citizens from becoming soulless ciphers, as I mentioned above. Obama and the people who surround him are seeking to turn us all into monsters, and, for the sake, eventually, of our immortal souls, they must be STOPPED.

    I can see this now much more clearly than I did when I supported this preening, self-righteous egomaniac for President. The devout Catholics who opposed him for his stand on abortion were right when they argued that he’d care as little for the rights of the weak and defenseless of the Third World Afghanis or Pakistanis or Iraqis as he does for the those of the unborn.

  15. October 1, 2011 10:01 pm

    Assassination is Illegal in International Law, and the domestic law of most countries.

    Assassination is defined as a political killing in peace time or a civilian in a state of armed hostilities whether or not it is declared war. “By name” targeting of an enemy combatant is not an assassination. So for example the attempted killing of Field Marshal Rommel in WWII was legal because he was a member of an enemy armed force. Shooting down Admiral Yamamoto’s aircraft in WWII was legal because he was a member of an enemy armed force.

    Al Quida declared war on the United States (even thought it is not a nation state and has no legal right to do so) It has conducted military actions against the United States. Anwar Al-Awlaki is described By AQ as a commander I.e a member of an enemy armed force. There is no legal objection to “by name” targeting of Anwar Al-Awlaki, provided the other requirements of International Law regarding military action are met.

    Mark wrote in the Main post

    But it should be noted that neither Al-Awlaki or Khan had renounced his American citizenship. Neither had been tried and convicted of any crime. No attempt had been made to arrest and charge them under US law

    This is irrelevant. The only relevant fact is he was a member of an enemy armed force as described in Art 3 of the appropriate Geneva Convention of 1949. He was a lawful target whether or not he committed a crime.

    Personally, I would have been happy if the US Government voluntarily elected not to put him on a “by name” targeting list because he was a US citizen, but there was nothing legally improper in doing so.

    Hank’s Eclectic Meanderings

  16. Mark Gordon permalink
    October 3, 2011 9:26 am

    The implications of this thing continue to multiply. As Conor Friedersdorf points out in the column linked below, the Obama Administration has not only killed an American citizen without due process, but now they refuse to release the Justice Department memorandum that makes the constitutional case for doing so.

    • October 3, 2011 9:47 am

      I really hate headlines like The Secret Memo That Explains Why Obama Can Kill Americans. Obama can’t kill Americans. It is not as if Obama decides there is someone he wants dead and issues an order to kill. While I don’t know the whole procedure in detail, intelligence agencies gather information, make recommendations, and the whole National Security Council approves the actions. Under the Bush administration, it was established that the intelligence agencies didn’t even need to get approval of their lists of people to kill. American citizens are an exception, but as I said, the National Security Council must all approve the recommendations of the intelligence agencies. There no doubt are very good arguments that this is not enough due process to justify action against an American citizen, but it is misleading to claim Obama has the power or authority to kill Americans.

      • Mark Gordon permalink
        October 3, 2011 11:21 am

        Obama can’t kill Americans.

        Except … he just did. Two of them, in fact. One, on purpose. The other … oops!

        David, it never ceases to amaze me that while you are skeptical about any and every claim made by the Catholic Church, you unreservedly offer the benefit of the doubt to anything done by the Obama Administration.

  17. Bruce in Kansas permalink
    October 3, 2011 1:04 pm

    We Americans like to kill our local monster by being a better monster.

    • Mark Gordon permalink
      October 3, 2011 1:48 pm


  18. October 4, 2011 12:44 pm

    At the risk of overstating my case, I find the following quote, originally shared by a Franciscan following the assassination of Osama bin Laden, to be very appropriate on this Feast of Saint Francis:
    “As a follower of Jesus Christ, I do not celebrate any human being’s violent death. My prayers go out to the entire world tonight. May the fear that has shaped our world in the last decade cease and may peace prevail.”
    –Daniel Horan, OFM

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