Can the US assassinate an American citizen living in Yemen?

[Ban Hammer 12,879]

Aix-en-Provence, France – Last month, civil liberties groups and the family of Islamic cleric Anwar al-Awlaki filed suit to stop the US government from killing Mr. Awlaki – an American citizen living abroad in Yemen. The government, which is trying to have the case dismissed, labels Mr. Awlaki a threat for alleged involvement in terror plots and inspiring anti-American jihadists. Awlaki is believed to be a target for extrajudicial killing.

The suit raises a fundamental question: When, if ever, is it lawful for government to assassinate? While a private individual has no right to kill except in self-defense, the right of those acting under color of law, such as police officers, soldiers, or the CIA, is considerably more complex. Even a soldier in a declared war does not have an unfettered right to kill the enemy.

The Nuremberg standardAt the close of World War II, when the question arose of what to do with Nazi leaders. British Prime Minister Winston Churchill proposed shooting them. Soviet leader Joseph Stalin agreed, but the United States advocated a trial. It argued, and eventually persuaded, both British and Soviet governments that the proper path was not blind retaliation, but the rule of law. A lawful procedure required a finding of individual guilt before punishment could be implemented. The US argued that leaders of the German and Japanese government and military should be tried in a court of law for having waged an aggressive war and for crimes against humanity. Only if they were found guilty after a trial, at which they would have the right to defend themselves and present evidence, could they be punished.

The US position prevailed, and the Nuremberg and Tokyo trials set an historic postwar gold standard for what came to be called the movement for the rule of law. The core doctrine is that government itself must obey the law on the same basis as individuals.

The doctrine has been embraced by every US administration since 1945, but America has had difficulty adhering to it.

Twenty-five years after the Nuremberg trials, the CIA sought to assassinate Cuban leader Fidel Castro. This breach was mended in 1976 when President Ford made an Executive Order forbidding any government employee from engaging in assassination. That policy lasted until 2002 when President Bush told the CIA to assassinate terrorist leaders whose names were on a ‘high value target list’. How one got either on or off the list was never made clear.

No due process for AwlakiBy allegedly authorizing the assassination of Awlaki, an American citizen living in Yemen, the current administration shows that American policy has not yet returned to the Nuremberg standard. The key fact in the administration’s decision seems to be that Awlaki resides in Yemen. If the citizen resided in Chicago, the administration would not be suggesting that he be assassinated. He would be arrested, charged with an offense, tried, and if found guilty, sentenced, and imprisoned. The situation would presumably be the same if he were residing in France, England, or Germany. He could be arrested and tried or extradited. The fact that Yemen is a chaotic nation complicates the matter, but the issue would be the same if he were in Iran or Syria – how to justify assassination.

Extrajudicial killing may meet mafia standards, but it does not meet the due process requirements of the US Constitution’s 5th Amendment or the 6th Amendment’s right to a jury trial and to confront witnesses. Even apart from a citizen’s constitutional rights, it is deeply troubling that the US government claims the right to kill anyone it decides to put on a hit list.

That a government has the right to kill in certain defined circumstances cannot reasonably be denied, but it must be to protect itself or its citizens from imminent danger, and the protective measures must be proportionate to the nature of the danger. In Awlaki’s case, the suit seeks an order to stop the government from killing him unless he poses an immediate threat. An American citizen hiding in the chaotic state of Yemen poses no direct threat to the existence of the US government. Individuals like Awlaki pose a random threat to citizens of numerous countries, and that threat justifies governments taking protective measures.

Need for judicial oversightBut if the measure to be taken is assassination, there must be some judicial oversight. The troubling aspect of extrajudicial killings is that the executive branch acts as prosecutor, judge, and executioner. There are no checks and balances. No one knows what standard of proof it employs. Is it authorizing assassination on the basis of probable cause that a crime has been committed, or on evidence that shows it beyond a reasonable doubt?

While officials claim that an American in Yemen is advocating and perhaps participating in terrorist acts, they disclose no evidence. No independent party judges whether there is sufficient proof to justify killing. No one discloses what standard of proof the executive branch is using. Indeed, the plaintiffs in the Awlaki suit demand that the government make transparent the process used to determine whether a citizen can be executed without trial.

When government asserts an unreviewable power to kill its own citizens, it mocks the rule of law, and claims a power more familiar to tyrants than democracies.

Ronald Sokol is a lawyer in Aix-en-Provence who practices across France. He taught at the University of Virginia Law School and is the author of “Justice after Darwin” and other books and articles.

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i'm horrified that the us government has taken this position.

[Bryan and Nina 1]

I'm horrified as well, but he is a CIA asset. Not that it excuses the directive to kill, but it becomes less horrifying indeed. The CIA by the way, retracted the story via Washington Post, and claimed he is on the Joint Special Operations Command list, not theirs.

SalafiMahaj, an organization of “mainstream” Muslim religious leaders in Britain, published a 130 page criticism of al-Awlaki entitle “Anwar al-Awlaki and His Errors in the Issue of Jihad.” Most of the paper is debate on religious points, but it does include a few gems on al-Awlaki’s past and the perception of him in the Muslim community, both jihadi and mainstream.

A Critique of the Methodology of Manhaj of Anwar al-’Awlaki and his Errors in the Fiqh of Jihad

From that paper:

When one listens to the earlier lectures and khutab of ‘Awlaki it is immediate noticeable that he was … appealing to Middle-Class Muslim professional in the US.”

“Awlaki can be seen in … the PBS documentary Muhammad: Legacy of a Prophet (2003) giving a khutbah [religious speech] in an American Congress building at Capitol Hill (!!!?) [there emphasis]“

“Hence there has been a clear transition and methodological shift in the procedure of ‘Awlaki”

“It is possible at this point [moving to Yemen] ‘Awlaki reviewed his methodology to regain credibility after the likes of ‘Abdullah Faisal al-Jamayki [Real name Trevor William Forest] in the late 1990s had actually condemned him for spreading ‘CIA Islam’ and being a ‘Murji’, ‘spy’, ‘a plant of the government’, ‘an enemy of Islam’ etc. See Faisal’s lecture wherein he … condemns ‘Awlaki for being a CIA agent.”

“Al-Awlaki is not known for having participated in any ‘jihad’ whatsoever and this is what has to be highlighted. For he calls to it and hypes up his audiences with it, yet the question has to be asked: upon which battlefield has he fought?”

[ready4ONE 5,400]

I would suggest anyone crying for this a-holes life to be spared should we catch up with him seek out his many online speeches, in English regarding his view of how the Religion of Peace is to be practiced. Problem being that could put you yourself on the terrorist watch list.

The guy is scum and I for one would shed no tear for him should he receive the extra judicial justice he has worked so hard to earn.

[mawilson 2,133]

i'm horrified that the us government has taken this position.

This guy is wanted in connection with several terrorist attacks, including the attempted bombing

of Northwest Airlines Flight 253 on Christmas Day.

While I don't like the idea of our government going around assassinating people willy-nilly,

in a way it's his choice. He knows he's wanted, and if he peacefully surrenders, he will

have the full legal protection of US courts.

[The_Dude 1,142]

This guy is wanted in connection with several terrorist attacks, including the attempted bombing

of Northwest Airlines Flight 253 on Christmas Day.

While I don't like the idea of our government going around assassinating people willy-nilly,

in a way it's his choice. He knows he's wanted, and if he peacefully surrenders, he will

have the full legal protection of US courts.

I don't think there is any way he could really be taken alive. From what I've read, he is heavily insulated, and is paranoid and careful enough to stay out of any country that is even remotely friendly or amenable towards the U.S.. I would like for the U.S. government to take the high road and he be tried for his crimes and subsequently executed. I really am uneasy with state sanctioned assasinations.

[mawilson 2,133]

I don't think there is any way he could really be taken alive.

He could peacefully surrender in front of television cameras.

[The_Dude 1,142]

He could peacefully surrender in front of television cameras.

And Shirly Phelps-Roper could march in a gay pride parade, but we both know neither of those things are going to happen.

[mawilson 2,133]

And Shirly Phelps-Roper could march in a gay pride parade, but we both know neither of those things are going to happen.

All I'm saying is that he has options. Currently two: surrender or die.

[Brother Hesekiel 2,235]

They can assassinate an American living in Washington. Example: John Fitzgerald Kennedy. In fact, I venture to say that the CIA is killing Americans quite frequently.

Edited September 30, 2010 by Just Bob

[The_Dude 1,142]

All I'm saying is that he has options. Currently two: surrender or die.

And what I'm saying is that there is a third option. It is what we preached 70 years ago, and now, somehow we've decided that we don't need to actually follow that. All I'm asking for is at least an attempt to take him alive.

[mawilson 2,133]

And what I'm saying is that there is a third option. It is what we preached 70 years ago, and now, somehow we've decided that we don't need to actually follow that. All I'm asking for is at least an attempt to take him alive.

I'm sure they would if they could, but as you said, it's next to impossible.

[The_Dude 1,142]

I'm sure they would if they could, but as you said, it's next to impossible.

That's giving up before you even try. I'd like to at least see an attempt. Not necissarily an extradition team going in, but at least some sort of planning and logistical thought into it.

[slim 1,514]

i'm horrified that the us government has taken this position.

I'm not. What I can't understand is why the dude is trying to get this case heard in France. Uh.... France isn't the one trying to kill you, buddy. If your beef is with the US, try our legal system on for size.

He knows he's wanted, and if he peacefully surrenders, he will

have the full legal protection of US courts.

This is the standard for anyone accused of a crime, terrorist or otherwise.

The so-called "assassination" that may or may not be happening could be compared to someone getting shot as they're taken into custody and resisting arrest.

I would like for the U.S. government to take the high road and he be tried for his crimes and subsequently executed. I really am uneasy with state sanctioned assasinations.

Would it be easier to call it "killed while resisting arrest?"

I venture to say that the CIA is killing Americans quite frequently.

Nope. Too many questions when Americans are killed.

Citizens abroad in places like Yemen are probably being killed by the CIA (and others) but I wouldn't say it happens "frequently."

That's giving up before you even try. I'd like to at least see an attempt. Not necissarily an extradition team going in, but at least some sort of planning and logistical thought into it.

I'm sure they'll send him a letter before they drop a GBU-38 on his house or slam a Hellfire into his Land Cruiser. It's not like it's a big surprise or anything.

Think of it like a summons instead of a no-knock warrant. See! Isn't that a lot easier now?

[Danno 1,228]

for some people the old saying rings true...

"He needed killin".