Death from Afar: The Unaccountable Killing of Anwar Al-Awlaki

5.10.11

What a strange and alarming place we’re in, when the US government, under a Democratic President, kills two US citizens it dislikes for their thoughts and their words, without formally charging them with any crime, or trying or convicting them, using an unmanned drone directed by US personnel many thousands of miles away.

And yet, that is what happened on Friday, when Anwar Al-Awlaki (aka al-Awlaqi, or Aulaqi) and Samir Khan, both US citizens, were killed in a drone strike in Yemen, along with several companions. Al-Awlaki, an imam who had left the US in 2002, had aroused the US government’s wrath because his anti-American sermons were in English, and readily available online, and because he openly advocated violence against the United States.

It has also been widely reported that he apparently met three of the 9/11 hijackers, that he had been in email contact with Major Nidal Malik Hasan, the sole suspect in the killing of 13 military personnel at Fort Hood, in Texas, in November 2009, who he later reportedly described as a “hero,” and that he was allegedly involved in planning the failed plane bombing on a flight into Detroit on Christmas Day 2009, for which a Nigerian, Umar Farouk Abdulmutallab, was arrested.

In December 2009, when the US first claimed to have killed al-Awlaki in a drone strike that killed 30 other people — all, conveniently, described as “suspected militants” by Yemeni security and government sources — the Washington Post reported that US officials said that al-Awlaki had been “moving up the ranks” of Al-Qaeda in the Arabian Peninsula, “having recently been promoted to regional commander.” However, the officials also “described him less as an operational leader than an inspirational one, whose contacts with members took place largely online.”

This is an important distinction, but it is one that has largely been overlooked when al-Awlaki has been discussed in the mainstream media in the US, even though Americans, through the First Amendment to the US Constitution, are supposed to be uniquely placed to understand the difference between free speech and action.

The other US citizen to be killed on Friday, Samir Khan, was also deeply disliked by the US government. A former “Internet Jihadist” in the US, as the New York Times revealed in an interview with him in 2007, he moved to Yemen in 2009, where he became the editor of Al-Qaeda in the Arabian Peninsula’s online English language magazine, Inspire. Despite this, he, unlike al-Awlaki, had not even been put on a hit list at the time of his death, relegating him to the same kind of non-status as the foreigners — Afghans, Pakistanis and others — who are regularly killed by drone strikes in Pakistan.

There are three main problems with the killings — one, as hinted at above, involves the use of drones in general, the second involves the legality and wisdom of assassinations in other countries, and the third involves the legality and wisdom of assassinating US citizens.

Are drone killings legal?

In the first instance, the killings mark an expansion of the US government’s program of using remotely-controlled drones to kill its enemies — or its perceived enemies — which is pushing at the limits of what can legitimately be regarded as warfare — if, indeed, it has not already exceeded those limits.

No one seems to have any accurate estimate of how many people have died in the drone killings, which have been taking place since 2004, but whose use has increased dramatically under President Obama, although there have reportedly been at least 270 attacks, and anywhere between 1,600 and 2,600 casualties. Moreover, in July 2009, Daniel L. Byman, a Senior Fellow at the Saban Center for Middle East Policy, noted in an article for the Brookings Institution that, according to estimates, “for every militant killed, 10 or so civilians also died,” adding that, “Beyond the humanitarian tragedy incurred, civilian deaths create dangerous political problems.”

Byman also noted that, in Pakistan, the last thing the Pakistani government needs are American efforts that backfire on them, which, of course, may also be fatally counter-productive for American aims. He quoted counterterrorism expert David Kilcullen, who said at a conference on Pakistan’s future in Washington D.C. in 2009, “When we intervene in people’s countries to chase small cells of bad guys, we end up alienating the whole country and turning them against us.”

In October 2009, Philip Alston, the UN Special Rapporteur on Extrajudicial Executions, questioned whether Obama’s drone-killing program was legal. Alston told a conference, “My concern is that drones/Predators are being operated in a framework which may well violate international humanitarian law and international human rights law.” Having submitted a report to the UN General Assembly (PDF), he said, “The onus is really on the United States government to reveal more about the ways in which it makes sure that arbitrary extrajudicial executions aren’t in fact being carried out through the use of these weapons.”

Alston highlighted three particular problems, stating, “I would like to know the legal basis upon which the United States is operating, in other words … who is running the program, what accountability mechanisms are in place in relation to that.” He also asked for disclosure of the “precautions the United States is taking to ensure that these weapons are used strictly for purposes consistent with international humanitarian law,” and also asked “what sort of review mechanism” there was “to evaluate when these weapons have been used.”

No answer was forthcoming, and the program not only continued, but expanded into other countries — including, of course, Yemen. However, although the Obama administration is obviously not troubled by what it is doing, a warning was sounded in the Washington Post on October 2 by John Bellinger, legal adviser for the State Department from 2005 to 2009.

Bellinger wrote that, although the drone program had been “highly effective in killing senior al-Qaeda leaders,” the administration “needs to work harder to explain and defend its use of drones as lawful and appropriate — to allies and critics — if it wants to avoid losing international support and potentially exposing administration officials to legal liability.”

As he proceeded to explain, the justification for the program (as with the occupation of Afghanistan, illegal wiretapping and the detention program at Guantánamo) is the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks, which empowered the President to use “all necessary and appropriate force” against nations, organizations or persons who planned, committed or aided the 9/11  attacks. Bellinger also noted that the US government “believes that drone strikes are permitted under international law and the United Nations Charter as actions in self-defense, either with the consent of the country where the strike takes place or because that country is unwilling or unable to act against an imminent threat to the United States.”

As he also noted, however, “the US legal position may not satisfy the rest of the world,” because no other government “has said publicly that it agrees with the US policy or legal rationale for drones,” and it would be wise for President Obama “to try to build a broader international consensus.”

Is Obama’s assassination program legal and/or appropriate?

Closely related to the question of the drone program’s legality are questions about the Obama administration’s reintroduction of an assassination program. A source of huge internal wrangling in the Reagan, Bush Sr. and Clinton administrations, assassination was largely ignored by the Bush administration, which became obsessed with a global web of torture prisons and “extraordinary rendition,” sending its alleged terrorism-related enemies to be tortured or “disappeared” in other countries. However, as Obama demonstrated in May, with the killing of Osama bin Laden in Pakistan, assassination by death squad was another part of his contentious anti-terror arsenal.

As with the drone program, international criticism of the assassination of Osama bin Laden was muted to non-existent. In his Washington Post op-ed, John Bellinger accurately noted that “European allies, who vigorously criticized the Bush administration for asserting the unilateral right to use force against terrorists in countries outside Afghanistan, have neither supported nor criticized reported US drone strikes in Pakistan, Yemen and Somalia. Instead, they have largely looked the other way, as they did with the killing of Osama bin Laden.”

While questions about the legality of killing bin Laden are likely to resurface the more assassinations take place, the problem is also, as with the drone strikes, that it might be hugely counter-productive politically, further inflaming tensions in Pakistan or Yemen, for example, where military options cannot possibly be the only measure of success, as battles for hearts and minds also need to be won. As Daniel Byman wrote about the use of drones in Pakistan, “The real answer to halting al-Qaeda’s activity in Pakistan will be the long-term support of Pakistan’s counterinsurgency efforts,” and, for Yemen, a similar answer must apply.

Is the assassination of US citizens legal and/or appropriate?

Moving from the assassination program to the killing of Americans in particular, the addition of US citizens to the list of targets could hardly be more contentious had it been designed by George W. Bush and Dick Cheney. As Guantánamo shows, Americans are supposed to be protected from the excesses of their own government, while foreigners have no protection whatsoever — although John Walker Lindh, judicially sacrificed as the “American Taliban,” was excluded in the early days of the “war on terror,” when he received a 20-year sentence as part of a punitive plea deal that involved him agreeing not to talk about the torture he had suffered at the hands of US soldiers.

After Lindh, the only other precedents for abusing Americans as though they were foreigners are the cases of the three Americans imprisoned as “enemy combatants” on the US mainland under George W. Bush — Yaser Hamdi, Ali al-Marri and Jose Padilla. Hamdi, born in the US but living in Saudi Arabia since he was a child, was held briefly at Guantánamo and then transferred to the US, where he was tortured and then released, and al-Marri was a legal US resident who was also tortured as an “enemy combatant,” although he was moved into the criminal justice system under Obama, and tried and convicted of charges relating to terrorism in 2009.

Until last Friday’s assassinations in Yemen, the most alarming case of an American stripped of his rights in the “war on terror” was Jose Padilla, a US citizen who was held by his own government for three and half years in chronic isolation until he lost his mind, and then transferred into the criminal justice system, where he was tried and convicted for little more than a thought crime, and sentenced to 17 years and four months in prison — a sentence that, two weeks ago, an appeal court judged too lenient.

Technically, al-Awlaki’s inclusion on a target list maintained by the US military’s shadowy Joint Special Operations Command (JSOC), and the decision, in April 2010, to add him to “a list of suspected terrorists the CIA is authorized to kill,” which “required special approval from the White House” (as the Washington Post described it), is legal, because, in December last year, Judge John D. Bates of the District Court in Washington D.C. dismissed a lawsuit contesting President Obama’s “targeted killing” policy, which was submitted on behalf of al-Awlaki’s father.

Judge Bates ruled that “the plaintiff did not have legal standing to challenge the targeting of his son,” and also concluded, alarmingly, “that there are circumstances in which the Executive’s unilateral decision to kill a US citizen overseas is ‘constitutionally committed to the political branches’ and judicially unreviewable.”

This was unacceptable to the ACLU and the Center for Constitutional Rights, acting on behalf of al-Awlaki’s father, who asked three particular questions that I found important:

Outside of the context of armed conflict, should it not be the case that the government can only carry out the “targeted killing” of an American citizen “as a last resort to address an imminent threat to life or physical safety”?

Why did the court not order the government to disclose the legal standard it uses to place US citizens on government kill lists?

How is it that judicial approval is required when the United States decides to target a US citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a US citizen overseas for death?

These questions were unanswered, and they remain unanswered now, prompting John Bellinger to recommend that the Obama administration “should provide more information about the strict limits it applies to targeting and about who has been targeted,” and rendering more chilling the words of Jameel Jaffer, Deputy Legal Director of the ACLU, back in December, when, after Judge Bates’ ruling, he said:

If the court’s ruling is correct, the government has unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation. It would be difficult to conceive of a proposition more inconsistent with the Constitution or more dangerous to American liberty.

As Jaffer also noted:

It’s worth remembering that the power that the court invests in the president today will be available not just in this case but in future cases, and not just to the current president but to every future president. It is a profound mistake to allow this unparalleled power to be exercised free from the checks and balances that apply in every other context. We continue to believe that the government’s power to use lethal force against American citizens should be subject to meaningful oversight by the courts.

In America today, however, when the courts have demonstrated that they are generally even more unwilling to challenge executive power when wielded by President  Obama than they were under George W. Bush, one of the bizarre results is that the approval for the killing of Anwar al-Awlaki really did take place in an executive bubble, apparently approved by a secret Justice Department opinion, but unrelated to what anyone else thinks, not just in America but anywhere else in the world. And this, I think, is as troubling as the assassination program itself and the new policy of waging war remotely, which appear to be permanently evading scrutiny.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation.

18 Responses

  1. Andy Worthington says...

    On Facebook, David J. Clarke wrote:

    It is indeed a strange, paranoid world in which we now live. The poor pay for the cynical business practices of the rich, civil rights are undermined by executive decree and thought itself is a weapon turned upon the thinker. How long will it be before the ideas we exchange via social media become the instruments of our own persecution?

  2. Andy Worthington says...

    Thanks, David. Yes. I’m glad to see people protesting about the cynical business practices of the rich, in Wall Street and elsewhere. I’m waiting for the UK to catch up. We have about a million unemployed people under the age of 24, and they should be out on the streets, shouting about it!
    Thought crimes are something else, though, and executive, extrajudicial killings because someone was using the English language and technology to spread a militant message. I know that’s a dangerous thing, but it now seems to be the norm to kill rather than to even think about capturing and putting on trial people who could be charged with crimes. It makes the arbitrary, unaccountable detention of prisoners under Bush look slightly less malevolent, which is a chilling achievement by Obama.

  3. Mark Erickson says...

    Great work, Andy.
    Reminder, the WaPo article linked here states: “A CIA missile strike by a pilotless aircraft killed Ahmed Hijazi, a U.S. citizen, in Yemen in 2002, in an attack aimed at suspected al-Qaeda members.”
    Request: Can you find the interview Begg did with Awlaki in 2006? This WaPo article is good, and the source that alerted me to this interview.
    Question: What is the best on-the-record evidence to tie Awlaki to operational details in any terror plot? All I can find is “sources say”.

  4. Andy Worthington says...

    Good to hear from you, Mark. Thanks for the mention of the first US drone victim, Ahmed Hijazi aka Kamal Derwish, killed in Yemen, in a car with four others, on November 5, 2002.
    As for Cageprisoners and al-Awlaki, this is Moazzam’s interview from December 2007, after al-Awlaki’s release from Yemeni custody:
    http://old.cageprisoners.com/articles.php?id=22926
    And as for “on-the-record evidence,” is there any? All I’ve ever seen are references to those spectral “sources,” trying to make him into an “operational commander,” when it seems to me that he particularly troubled the authorities because he was a savvy publicist — and genuinely dangerous, as a result — but that, instead of capturing him and putting him on trial, they dreamt up a reason to assassinate him instead.

  5. Andy Worthington says...

    David J. Clarke wrote (in response to 2):

    There is a pattern arising that points toward a dark, dystopian future. Thank you Andy for shining a light in the crevices and cracks where injustice thrives. And yes – where is the outrage and protest that we witnessed all too briefly before the outbreak of the on-going illegal wars in Iraq and Afghanistan? Unbridled power has far reaching consequences – I think that it is not too difficult to connect the dots between the foreign policies of our ‘New Century’ governments and the rapacious unaccountability of our banks and financiers. The sociopathic arrogance of this latest crop of power brokers is wrecking havoc with the world, its ecosystems and its peoples. You have to be blind not to see that politically sanctioned greed and cruelty is the root cause of unrelenting and unconscionable suffering. The extrajudicial execution of opponents is symptomatic of a paradigm that shamelessly embraces what Dick Cheney euphemistically referred to as the ‘Dark Side”.

  6. Andy Worthington says...

    Thanks again, David. Very well put. Maybe more people than we expect are reaching a tipping point. Certainly, as I mentioned before, being in Wall Street and other financial centers protesting, and calling for change, is sensible. As for the darkness, I can only hope that the “Occupy Wall Street” momentum spills over into the protests on the 10th anniversary of the invasion of Afghanistan tomorrow.
    Ten Years? What is this? How did we end up with total, permanent war unless, as you say, Dick Cheney triumphed and we’re still on the “Dark Side.”

  7. Andy Worthington says...

    David J. Clarke wrote:

    The apparatus of the police state has grown exponentially in the last ten years. It is, (more often than not) that only when, as individuals, we are deprived of the essentials of life that we feel compelled to act. It is a tiny percentage of the population that feels compelled to confront the excesses of the ruling elites. The down right meanness of the neo-conservatives coupled with the acquiescence of the opposition in the US has parallels in coalition policies in the UK and elsewhere in Europe. The haves and the have-nots grow further apart, and while there are momentary expressions of dissent they are invariably quashed by a frighteningly vicious paramilitary response and thus short lived. If some sort of major economic collapse occurs resulting in mass unemployment, food shortages and civil unrest it is highly likely that the tactics (arbitrary detention, enhanced interrogation, death while in custody) we have witnessed overseas will come home to roost. You only have to look at what is happening in Greece to see the face of things to come unless a concerted effort is made by the majority to overcome the tyrannical rule of a despotic and increasingly intransigent minority.

  8. Andy Worthington says...

    Thank again, David. Well, there we have it, my friends. We need “a concerted effort by the majority to overcome the tyrannical rule of a despotic and increasingly intransigent minority.”
    The worst-case scenario above really isn’t that nightmarish, if you think about what’s actually been put in place over the last ten years …
    Resist! Resist! Get out on the streets!

  9. Andy Worthington says...

    Alexey Braguine wrote:

    Obama has risen to the pedestal of a Mafia Don. Occupy Wall Street is the beginning of a long, hard winter, which hopefully will lead to an American spring.

  10. Andy Worthington says...

    Yes, Alexey, let us hope so. And not just in America. All of our corrupt, warmongering, self-seeking politicians, in the thrall of bankers and corporations, need to fall. If we don’t have a global rethink abut how “we” operate, and what our priorities are, and how we intend to deal with our populations if we can’t create work, then the future looks very bleak indeed.

  11. » Nine Circles of Hell!: Sunday Edition! / This Is Hell! says...

    [...] Worthington, “Death from Afar: The Unaccountable Killing of Anwar Al-Awlaki” Comments comments Tags: Andy Kroll, Andy Worthington, Glen Ford, John Pilger, Julia [...]

  12. Andy Worthington says...

    On The Public Record, Eva Destruction wrote:

    Good writing.

    Yes, the rule of law in these United States is dead in the water.

    Our government today is devoted to the steady violation of constitutional principles and the Fourth Amendment. TSA and the Unpatriot Act are examples of legislation that routinely violate the Fourth Amendment.

  13. Andy Worthington says...

    Thanks, Eva. Good to hear from you.

  14. Deranged Senate Votes for Military Detention of All Terror Suspects and a Permanent Guantánamo by Andy Worthington « Dandelion Salad says...

    [...] is no great defender of due process, as he had Osama bin Laden killed in a Wild West style and also approved the execution without any kind of charge or trial of Anwar al-Awlaki, an American citizen, in Yemen, where he was producing irritating jihadist material in English on [...]

  15. A Tired Obsession with Military Detention Plagues American Politics « Piazza della Carina says...

    [...] than willing to dispose of US citizens he regards as troublesome not by imprisoning them, but by assassinating them in drone strikes; and, secondly, that the foreign victims of the indefinite detention that lawmakers have shown [...]

  16. A Tired Obsession with Military Detention Plagues American Politics « Dandelion Salad says...

    [...] than willing to dispose of US citizens he regards as troublesome not by imprisoning them, but by assassinating them in drone strikes; and, secondly, that the foreign victims of the indefinite detention that lawmakers have shown [...]

  17. The Guantánamo Files: An Archive of Articles — Part Eleven, October to December 2011 | Friction Facts says...

    [...] It Could Be You: The Sad Story of Jose Padilla, Tortured and Denied Justice 4. Anwar al-Awlaki: Death from Afar: The Unaccountable Killing of Anwar Al-Awlaki 5. WikiLeaks: The Complete Guantánamo Files: WikiLeaks and the Prisoners Released in 2006 (Part [...]

  18. Deranged Senate Votes for Military Detention of All Terror Suspects and a Permanent Guantánamo | Amauta says...

    [...] is no great defender of due process, as he had Osama bin Laden killed in a Wild West style and also approved the execution without any kind of charge or trial of Anwar al-Awlaki, an American citizen, in Yemen, where he was producing irritating jihadist material in English on [...]

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