Anwar al-Awlaki was clearly not a nice person, but the manner in which he was killed on September 30 should trouble us all, regardless of our political orientation. Awlaki, a US citizen who once lived in Northern Virginia, was a Muslim cleric who took up residence in Yemen, where he incited anti-US sentiment -- until he was executed by a drone.
The mainstream media coverage of Awlaki's death barely scratches the surface of the ways this action should trouble patriotic Americans -- from Tea Partiers to the Occupy Wall Street demonstrators. Insofar as US media coverage has been critical, it has largely focused on the disturbing fact that the Obama administration assumed the power to execute an American citizen solely on the basis of a secret process within the executive branch, despite the Constitution’s Fifth Amendment guarantee that no person shall "be deprived of life, liberty, or property, without due process of law."
In 2010, David Barron and Martin Lederman of the Justice Department's Office of Legal Counsel drew up a 50-page memorandum arguing that the United States had the right to kill Awlaki far from the battlefields of Iraq and Afghanistan if it was impractical to arrest him. The New York Times cited anonymous officials' assurances that Awlaki's name was put on the death list after "a careful, if secret, review." The Washington Post, also content to give "officials" a free pass to issue bland assurances anonymously, told its readers that "none of the lawyers involved in the process, from across the government, dissented."
Since when does the executive branch, alone, get to decide which American citizens should be put to death? Didn't the United States fight a revolutionary war to put an end to that kind of autocratic abuse of executive power?
The Constitution guarantees the accused -- especially when facing the death penalty -- the right to confront his or her accusers and contest the evidence in a neutral judicial process. Awlaki was denied this right by his government. In the words of the American Civil Liberties Union's Jameel Jaffer (who, unlike Obama administration officials, has the courage and integrity to stand by his words on the record), "This is a program under which American citizens far from any battlefield can be executed by their own government without any judicial process, and on the basis of standards and evidence that are kept secret not just from the public, but from the courts."
So far, President Obama, a former professor of constitutional law, has refused to explain the legal logic of the 50-page assassination memo or to make even a redacted version of it public. Conservatives quite rightly "accuse Obama of hypocrisy, noting his administration insisted on publishing [George W.] Bush-era administration legal memos justifying the use of interrogation techniques many equate with torture, but refused to make public its rationale for killing a citizen without due process." According to Obama, Republican torture memos have to be made public, but Democratic assassination memos do not.
But this is far from the only problem with the Awlaki execution. First, although media accounts made this a sidebar in their coverage, Awlaki was not the only American citizen killed in the drone attack of September 30. He was accompanied by Samir Khan, an American citizen living in Yemen and editor of Inspire, a magazine for jihadists. According to yet another anonymous Obama administration official quoted in The Washington Post -- why speak anonymously if you have nothing to hide? -- "The CIA did not know Khan was with Aulaqi [sic]."
This claim does not smell right. After all, in other contexts, American officials always stress the extensive surveillance of targets by their drones and the care with which officials determine who will die in an attack. So presumably the CIA knew others were in the car with Awlaki and that they would die with him. According to an eyewitness quoted by The New York Times, the car Awlaki and Khan were traveling in was so badly destroyed that it was hard to identify the bodies of the dead. So, how was the US government able to identify Khan as a dead fellow traveler in time for a US press conference later that same day? In the absence of an answer to this question, I, for one, am left wondering if Khan was knowingly killed by his government -- only without the benefit of even a secret review that resulted in the authorization to kill Awlaki.
Finally, and most troubling of all, there is the question of why Awlaki was put to death in the first place. The Times characterized the threat Awlaki represented to the United States in these terms:
It was, of course, Mr. Awlaki's very American qualities -- his fluency in the language and culture of the country where he spent half his life -- that made him such a dangerous radicalizing force. … His eerily calm religious justifications for violence, recycled across the Web for years, had a profound impact on a small number of young Muslims in the United States, Canada and Britain. In a score of plots since 2006, investigators discerned Mr. Awlaki as an important influence -- his written, audio and video sermons stored on hard drives, e-mailed among conspirators and treated as a clerical imprimatur for their deeds. … [H]e created an English-language Web site, blog and Facebook page that drew tens of thousands of visitors, putting out a message that grew steadily more approving of anti-Western violence. … Unlike Osama bin Laden, whose convoluted Web messages struck many Western Muslims as foreign and strange, Mr. Awlaki's unaccented English, sprinkled with colloquial Americanisms, often hit its mark.
I quote this at some length, because these statements leave the ineradicable -- and deeply disturbing -- impression that the Obama administration decided to execute an American citizen for his speech acts. According to this logic, America’s enemies have the right to kill Glenn Beck. But what is more American than free speech? Even the most obnoxious and hateful speech is protected by the Constitution.
The Obama administration has never publicly said that Awlaki was killed because he gave speeches they disliked. In announcing the assassination, Obama called Awlaki "the leader of external operations for Al Qaeda in the Arabian Peninsula" -- the first time any US government official had publicly used that description of Awlaki. So how did Awlaki ascend from Internet instigator to the leader of external operations for Al Qaeda? Once again, unnamed American officials claim that Awlaki's role among the jihadists moved "from inspirational to operational" and that US intelligence had concluded that Awlaki "played a direct role" in the Christmas Day plot to blow up a plane over Detroit. (Of course, this is the same US intelligence that concluded Saddam Hussein had weapons of mass destruction.) We are not told the nature of the evidence of Awlaki's "operational" role, though Reuters reports that unnamed officials "acknowledged that some of the intelligence purporting to show Awlaki's hands-on role in plotting attacks was patchy." In other words: not guilty beyond a reasonable doubt, but executed anyway.
No wonder the distinguished George Washington University Law Professor Jonathan Turley recently said that "the election of Barack Obama may stand as one of the single-most devastating events in our history for civil liberties."
The assassination of Awlaki and the secret memo used to justify it are to the Obama administration what water-boarding and John Yoo's torture memo were to the Bush administration. Ultimately, both point toward a deeper bankruptcy in America's war against the jihadists. If the Bush administration fantasized that it could torture its way to victory, the Obama administration has fallen prey to the delusion that it can kill its way to victory. In Vietnam, first under Robert McNamara and then Richard Nixon, the United States believed it could win if it just killed enough people. In the Middle East, Obama has updated this delusion with the smart weaponry of the 21st century, seeking victory not through bulk killing but through the refined assassinations of jihadist leaders. The fantasy is that if the United States just kills the leaders -- as though there were only a finite number of leaders -- the rest will simply disappear.
The Obama administration was keen to sweep aside constitutional niceties and kill Awlaki, because they saw him as a root cause of jihadism who could be eliminated. But this is to confuse causes with results. As David Kilcullen, former adviser to General David Petraeus, has warned, the drone strikes recruit as many militants as they kill. New Awlakis will emerge, and the one we killed will live on as a martyr. In the words of yet another anonymous official, quoted in The Washington Post: "They are like bees. How many do you have to kill to get them all?" The answer is that we will never kill our way out of this problem.
Author addendum: Since this column was published, in the kind of action we associate with the mafia rather than disciplined military organizations, the US has killed Awlaki's 16 year-old son, Abdul-Rahman al-Awlaki, in yet another drone strike. The son was a US citizen and a minor. In its front-page coverage of the strike, The Washington Post repeated, without question, US government disinformation that the son was 21, and this time it did not even give a reason why another US citizen might be executed by his own government. No claims have been made that the 16 year-old was directing Al Qaeda operations. In just over two weeks we have apparently normalized the summary execution of American citizens, moving from some debate about the propriety of the first execution to a situation where The Washington Post and The New York Times can report with matter-of-fact brevity the Obama administration's execution of an American tenth grader without trial.
Editor's note: This article was updated on October 18 to clarify a reference to the Fifth Amendment.