Targeted Killing Of Americans Abroad: A More Complex Question Than You Might Think

The killing of Anwar al-Awlaki—the American citizen and self-confessed terrorist affiliated with Al-Qaeda on the Arabian Peninsula (AQAP)—has focused enormous concern over the decision and power of the Executive branch to execute a man born on American soil without first providing him the due process rights guaranteed to every American by the 5th and 14th Amendments.

There is ample reason for concern. Nobody wants any branch of the federal or state government to have the right to summarily decide who gets to live and who will die simply by labeling someone a bad guy. Nobody wants the government to have the ability to execute an American without that individual being afforded every opportunity to fully defend himself or herself in the appropriate legal venue.

Yet, to suggest that all Americans are entitled to such due process in every instance would be incorrect. And it is precisely the instance where no due process is available that makes this case far less clear than some would think.

When a police officer views a suspect pulling something out her pocket that appears to be a weapon and makes the decision to shoot that person, either in self-defense or to protect a third party, the only due process given to the victim of the police officer’s actions is the decision making power of the cop. We give police officers the power to make these decisions subject to certain legal tests to determine if they have properly followed the procedures required and utilized the judgment we expect of law enforcement officers.

As we will see, the question of the propriety of the al-Awlaki killing is subject to a similar examination.

To properly analyze what has happened here, and its impact as precedent for future executive branch behavior, we must review both domestic and international law as al-Awlaki was killed on Yemeni soil.

Let’s begin with the international considerations before moving on to the important domestic concerns.

How you perceive our “situation” with Al-Qaeda, or any other terrorist organization with the goal of killing American citizens, has a bearing on what international standard applies. If you believe we are at war with terrorists, despite the lack of a geographic definition for whom we are at war with (and noting that we are clearly not at war with Yemen where al-Awlaki was killed) and the fact that terrorists do not wear uniforms that define and announce them as enemy combatants, then the relevant international law would be the International Humanitarian Law (IHL). These are the rules that govern the standard of treatment of civilians and enemy combatants during wartime, along with Article 51 of the United Nations Charter.

If you believe that what we are engaged in is not a war but some other type of battle more similar to fighting gangs on the streets of Los Angeles or some other organized criminal force involved in the murder of American citizens, then behavior is governed by the international human rights rules which apply in circumstances where war is not involved.

While there are significant differences between the two, and considerable disagreement over which set of rules should apply, in the instance of targeted killings we can find certain similarities that would appear to apply to al-Awlaki’s case while still offering up no clear answers.

The similarities and tests that apply are nicely summarized in a very instructive article by Richard Murphy and Afsheen John Radsan in the Cardozo Law Review:

As a threshold matter, the legality of one form of targeted killing is relatively clear. Recall that the human rights model for law enforcement permits targeted killing where necessary to prevent a person from posing an imminent threat of death or serious injury to others [emphasis added]. Here the human rights model and IHL overlap.

There are some additional questions to be answered before we get to the necessity test as referenced by Murphy and Radsan, the first of which is to determine whether or not al-Awlaki had become ‘operational’—which is to say that he was actively involved in plotting the attacks designed to harm American citizens. We also need to know whether or not there was a reasonable possibility of arrest which would have resulted in him standing trial on charges.

The government has indicated that there is considerable evidence that al-Awlaki had become an ‘operational’ member of AQAS and that he had actively planned the attempted underpants bombing over Detroit and the effort to place bombs in printers that were placed on cargo planes. The government has further alleged, based on video tapes , that he was engaged in the planning of future attacks.

We will likely never know for certain if these charges were correct or not, but there is certainly some degree of evidence to back up the government’s position.

If arrest was a reasonable possibility, then killing al-Awlaki would clearly be a violation of his Constitutional rights. Certainly, if the man had been hiding out in France or England, the standard would be different as it would be reasonable to expect that the authorities in those countries were capable of capturing the man within the borders of their country. However, in a country like Yemen, where the territory used by al-Awlaki to avoid capture is considered beyond the Yemeni government’s control, arrest was likely not a reasonable option—certainly not as likely as it would be if al-Awlaki had been hiding out in London.

As for necessity, this is where it gets difficult. The question of propriety revolves around whether or not Americans were in imminent danger of being harmed by al-Awlaki.

Simply put, we don’t know what al-Awlaki was planning and how close to execution something may have been. And while the government may know something more about this, they have not shared any such information with the public nor are they likely to do so as this information would be classified as a national security secret.

We further must ask whether, when dealing with an alleged terrorist such as al-Awlaki, we can even apply the same test of imminent danger as we would apply in my hypothetical example of the cop making the split second decision as to whether someone is about to shoot him or a third person. Certainly, it would be giving the government too wide a berth if the mere suspicion that somebody could be involved with something nefarious were all that was required to target an individual for execution. For example, if I were to spend some time today looking at Al-Qaeda websites to see what they are up to, do I become someone who might be involved in an imminent attack? I would hope not.

Conversely, if we wait until the second just before the bomb goes off to decide that the attack is imminent, it is going to be too late to stop it. Thus, preventing the president from acting before that moment comes to pass would seem too restrictive and more likely to result in the deaths of American citizens, the same citizens the president is sworn to defend.

While I don’t think that the necessity test should be so restrictive as to result in future deaths of innocents in the name of protecting due process rights, the question still remains as to whether one person, the president, is or should be empowered with the sole decision making authority or the authority to delegate such a decision to a division of the executive branch such as the CIA.

Under this test of international law, the president’s actions in taking out al-Awlaki would likely be deemed legal, although the situation is sufficiently unclear that I would not be surprised to see someone seek to file charges in the International Criminal Court.

Under domestic law, if you believe that the necessity test has been met, then the law has likely been properly applied. However, if you feel that it was not met or that an arrest was possible, the law may have been violated. Further, you could reach the conclusion that there was insufficient evidence to back up the charges against al-Awlaki in the first place, thereby negating the necessity, then the law may have been violated.

It seems reasonable to accept the government’s position that al-Awlaki was, indeed, a terrorist engaged in plots—both past and future—to kill American citizens. It is also reasonable to accept that the likelihood of arresting the man was slim to none given where he was hiding out.

So, it becomes a question of necessity. Was killing al-Awlaki, without providing him his due process rights, necessary in order to protect American lives?

Again, I would refer to the example of the cop who makes the split-second decision when she suspects someone is about to use a weapon to kill either the cop or a third party. Our courts have long held that due process rights are not violated when the situation calls for that quick decision in self-defense or the protection of another. There is no requirement that the death of the third-party be allowed to take place, when it could be stopped, so as to provide the perpetrator her day in court. And just like the international law situation, the tests are the same. Could the police officer been reasonably expected to arrest the perpetrator? Was it necessary to kill the individual given the information that police officer had at his disposal?

The case of al-Awlaki did not appear to present a split-second decision—so far as we know. However, how close to an actual attack must we be before the president is justified in taking out an operational member of a terrorist organization who has made his intentions very clear, especially when we never really know when or if an attack is imminent but only know that the terrorist is planning to kill Americans?

As noted, the facts, as presented by the government, would appear to support the allegation that al-Awlaki had become ‘operational’ in plotting and carrying out terrorist attacks designed to kill Americans. It would also appear clear, as presented by the government, that arresting him to stand trial on related charges was a very unlikely option.

Thus, what choices remained?

We could either respect his due process rights in the knowledge that we would likely never be able to bring him to trial or we could deem it necessary to eliminate him as he posed a constant, imminent threat to American lives.

The fly in the ointment is that we are left to rely on the scenario presented by the government, with no independent body available to put the government’s facts and assertions to the test either before the killing or after. This is a problem.

In our police officer example, the cop involved with such a killing would, at the least, be subject to an investigation by his department’s internal affairs department. If there is a relative of the victim who believes that the individual was improperly killed by the cop, we can expect an examination of the facts in a court of law.

Yet, in the case of a political killing such as al-Awlaki, there is currently no independent body utlizied to review the matter, either before or after the occurrence.

The authority of the courts in such a matter is extremely narrow. However, in the landmark cases of Hamdi v. Rumsfeld and Boumediene v. Bush, the Supreme Court, while acknowledging the limited ability of the courts to police this sort of circumstance, does recognize that the executive has a due process obligation, even in situations such as al-Awlaki. This is best expressed, again, by Murray and Radsan in their Cardozo Law Review piece:

Our primary conclusion is that under Boumediene, the executive has a due process obligation to develop fair, rational procedures for its use of targeted killing no matter whom it might be targeting anywhere in the world. To implement this duty, the executive should, following the lead of the Supreme Court of Israel (among others), require an independent, intra-executive investigation of any targeted killing by the CIA. These investigations should be as public as is reasonably consistent with national security. Even in a war on terror, due process demands at least this level of accountability for the power to kill suspected terrorists.

And that is the crux of the issue.

While many pundits have focused on whether the president and the CIA have broken the law by executing al-Awlaki, or endangered all of our due process rights in the process, the focus might better be placed on recognizing the difficult circumstance presented in a case like al-Awlaki’s and a discussion of what should be built into the system to protect the rights of Americans when it is clear that we cannot get our hands on them to bring them to trial.

The most ideal situation would be to have the case for execution presented to an independent judicial body before an execution where the evidence can be presented without violating national security secrets. There is precedent for this as we actually already have such a body. At the very least, there must be an intra-executive, independent process to approve and/or review this type of executive action.

It is unrealistic and, in my opinion, unreasonable to tie the executive’s hands when American lives can be saved. At the same time, and for all the obvious reasons, we cannot permit, without independent review, a president to simply define who the bad guys are and be free to execute them at will.

Other nations have faced up to this problem, including Israel, and defined a procedure designed to assure the necessary measure of protection while protecting the rights of its citizens.

It’s time for the United States to do the same.

Rick Ungar

Rick Ungar is an attorney in Southern California and a frequent writer, speaker and consultant on health care policy and politics. He is a contributing writer at Forbes. Readers can reach him at rickungar [at] gmail [dot] com.