On Dec. 7, a federal judge rejected the claim of the father of a Muslim cleric, Anwar al-Awlaki, that the U.S. has unlawfully authorized the “targeted killing” of his son, a dual U.S.-Yemeni citizen currently hiding in Yemen with alleged ties to al-Qaeda in the Arabian Peninsula.
The American Civil Liberties Union and the Center for Constitutional Rights had filed the lawsuit asserting that the United States’ targeting of an American citizen far from any armed conflict zone without his presenting an imminent threat to life or physical safety is a violation of constitutional and international law, especially when this is not a last resort.
The judge acknowledged that the case poses “stark” and “perplexing” questions. How is it, he asked, that judicial approval is required when the U.S. decides to target a U.S. citizen overseas for electronic surveillance, which it considers prohibited, but not when it decides to target a U.S. citizen overseas for death? Furthermore, can a U.S. citizen seek vindication of his constitutional rights through the U.S. judicial system while “evading U.S. law enforcement authorities, calling for ‘jihad against the West,’ and engaging in operational planning” for al-Qaeda that has already been engaged in terrorist attacks against the U.S.?
Among other questions, can the executive order the assassination of a U.S. citizen without providing him judicial process by merely asserting that he is a dangerous member of a terrorist organization? When should the U.S. disclose in advance to the target of such action the standards under which it takes that action?
The judge recognized that these legal and policy questions “are controversial and of great public interest,” but he could not address them unless the court had jurisdiction. He then found that the court lacked jurisdiction for two reasons — first, the father did not have legal standing to bring the action on behalf of his son, for Awlaki could bring the suit himself if he surrendered to U.S. authorities, and second, the question of targeted killings is a “political question” and executive branch officials and not the courts must make this decision.
Awlaki is a Muslim cleric who was born in New Mexico and studied, among other places, at Colorado State University, before moving to Yemen in 2004. He is known to have provided instructions to Umar Farouk Abdulmutallab, the Nigerian Christmas Day bomber who attempted to detonate a bomb aboard a Northwest Airlines flight to Detroit in 2009. Awlaki is also reported to have exchanged as many as 18 e-mails with U.S. Army Major Nidal Malik Hassan prior to the Fort Hood shootings in which Hassan killed 13 people in November 2009. Awlaki has praised the actions of these “students” and asked others to “follow suit.” In November of this year, he appeared in a video saying, “Don’t consult anyone in killing Americans. Fighting Satan doesn’t require a religious ruling.”
The judge’s ruling was praised by the Department of Justice but criticized by the ACLU as “a profound mistake,” being inconsistent with the Constitution, as it could result in a dangerous expansion of presidential powers.
In my recent conversation with Professor Geoffrey S. Corn, a retired brigadier general who currently teaches at the South Texas School of Law in Houston, he justified such targeted killings as a necessary tool in the “war against terror.” Under the law of armed conflict, he said, enemy belligerents are apt targets because the law does not clearly define what is the “zone of active combat.”
U.S. attention, including unmanned drone attacks, has become more focused on Yemen, a center of al-Qaeda operations in the Arabian Peninsula, which appears to be the most active branch of the terrorist organization today. Last month, two parcel bombs were intercepted on cargo flights en route to the U.S. sent by the group, and reportedly some Arab fighters in Afghanistan, attracted by the group in Yemen, are moving there.
The war on terror has indeed raised many vexing questions over the last 10 years, including the legality of targeted killing and drone attacks. The law is murky at best and needs to catch up with these new issues.
Ved Nanda (vnanda@ ) is Thompson G. Marsh professor of international law and director of the International Legal Studies Program at the University of Denver Sturm College of Law.
