"It was an extreme outrage of the highest order -- a shredding of the Constitution -- when George Bush imprisoned or even just eavesdropped on American citizens without any due process. But it's perfectly acceptable -- even noble -- for Barack Obama to kill them without any due process." by George Dance
(libertarian)
Tuesday, September 7, 2010
Challenging Obama's assassination policy
"It was an extreme outrage of the highest order -- a shredding of the Constitution -- when George Bush imprisoned or even just eavesdropped on American citizens without any due process. But it's perfectly acceptable -- even noble -- for Barack Obama to kill them without any due process."
On August 30, the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights filed suit on behalf of Anwar Awlaki, seeking a court order barring the Obama administration from assassinating Awlaki without due process. The suit alleges that assassinating Mr. Awlaki would violate his Fifth Amendment right to not be deprived of life without due process. The organizations are representing Awlaki's father, Nasser Awlaki, as the plaintiff. (Anwar Awlaki was unable to file the suit because he is currently in hiding in Yemen.) (1)
Anwar Awlaki (also spelled Aulaki, Aulaqi, al-Awlaki, al-Aulaki, or al-Aulaqi) is a dual citizen of the United States and Yemen. While described by some as a "senior recruiter for Al-Qaeda," "the Bin Ladin of the internet," and the like (2), he has never been convicted or even indicted in the United States of any crime. (3)
A former imam in San Diego, CA, and Falls Church, VA, Awlaki was investigated by the FBI as far back as 1999 for, among other things, alleged ties to Sheik Omar Rahman (now in prison for the 1993 World Trade Center bombing.) That investigation was closed in 2000 for lack of evidence. (4).
In 2001, Awlaki again came to the FBI's attention, as the alleged "spiritual adviser" to accused 9/11 hijacker Nawaq Alhazmi, who had prayed at his mosques in both states. A second accused hijacker, Khalid al-Midhar, also prayed at his San Diego mosque and spoke to him; and a third, Hani Hanjour, did the same in Falls River. However, the FBI, "whose agents interviewed Mr. Awlaki four times in the days after the Sept. 11 attacks, concluded that his contacts with the hijackers and other radicals were random, the inevitable consequence of living in the small world of Islam in America." (5, p. 4)
"In the weeks after the Sept. 11 attacks," the New York Times later reported, Awlaki "condemned the 9/11 murders." At the same time, though, he "publicly doubted the Muslim role in the Sept. 11 attacks. (The F.B.I., he wrote a few days afterward, simply blamed passengers with Muslim names.)" (5, p. 1)
As U.S. authorities began arresting Muslims in 9/11's wake, Awlaki became increasingly outspoken, declaring in March 2002: "So this is not now a war on terrorism, we need to all be clear about this, this is a war on Muslims! Not only is it happening worldwide, but it's happening right here in America that is claiming to be fighting this war for the sake of freedom." He moved to Britain that year, and began preaching the same message there. (5, p. 5)
Awlaki's name was placed on the U.S. government's "terror watch" list in July, 2002. On his return to the U.S. in October, he was arrested at JFK Airport on charges of fraud. (Although born in the U.S., he had attended Colorado State University on an F-1 foreign student visa, having written on his visa application that he was born in Yemen.) However, he was released when it turned out that the warrant for his arrest had been rescinded. (4)
(4) Joseph Rhee and Mark Schone, "How Anwar Awlaki Got Away," The Blotter, ABC News, Nov. 30, 2009. Web. Sep 6, 2010.
In 2006 Awlaki was imprisoned by the Yemeni government, apparently under U.S. pressure, and once again interrogated by the FBI. However, "by the end of 2007, American officials, some of whom were disturbed at the imprisonment without charges of a United States citizen, signaled that they no longer insisted on Mr. Awlaki's incarceration, and he was released." (5, 6)
Awlaki has also been linked in the media to Nadal Hasan, the accused killer of 13 U.S. Army personnel at Fort Hood, TX, on Nov. 5, 2009. In a Nov. 16 interview, the Washington Post reported that Awlaki admitted to have "developed an e-mail correspondence" with Hasan, but "said that he neither ordered nor pressured Maj. Nidal M. Hasan to harm Americans." (6)
For its part, " after examining the e-mails and previous terrorism investigations, the FBI had found no information to indicate [Hasan] had any co-conspirators or was part of a broader terrorist plot." (7)
Awlaki later told another Yemeni journalist that he had also been "in correspondence" with accused attempted airline bomber Farouk Abdulmutallab, but again denied giving him any orders. (8)
It was widely reported on Dec. 24 that Awlaki had been killed in a joint operation by Yemeni security forces and the U.S. military's clandestine Joint Special Operations Command (JSOC). Some Yemenis were sceptical of the news, like Sanaa University political science professor Abdullah al-Faqih, who told Al Jazeera news organization: "I have serious doubts about [Awlaki] being a target - simply because he is well connected to the government and there is no serious case against him." (9)
However, on Jan. 27 the Washington Post reported that Awlaki, who "was not killed , ... has since been added to a shortlist of U.S. citizens specifically targeted for killing or capture by the JSOC, military officials said." (10)
Later in the same article, the Post gave more information about the shortlist:
After the Sept. 11 attacks, Bush gave the CIA, and later the military, authority to kill U.S. citizens abroad if strong evidence existed that an American was involved in organizing or carrying out terrorist actions against the United States or U.S. interests, military and intelligence officials said. The evidence has to meet a certain, defined threshold. The person, for instance, has to pose "a continuing and imminent threat to U.S. persons and interests," said one former intelligence official.
The Obama administration has adopted the same stance. If a U.S. citizen joins al-Qaeda, "it doesn't really change anything from the standpoint of whether we can target them," a senior administration official said. "They are then part of the enemy."
Both the CIA and the JSOC maintain lists of individuals, called "High Value Targets" and "High Value Individuals," whom they seek to kill or capture. The JSOC list includes three Americans, including Aulaqi, whose name was added late last year. (10)
National Intelligence Director Dennis Blair confirmed to the House Intelligence Committee in February that such a policy was in place. ""We take direct action against terrorists in the intelligence community,' Blair told lawmakers at the hearing. If that direct action -- we think that direct action will involve killing an American, we get specific permission to do that.'
Blair said the reason he made the admission was to reassure Americans." (11)
Blair added that "Being a US citizen will not spare an American from getting assassinated by military or intelligence operatives overseas if the individual is working with terrorists and planning to attack fellow Americans." (12) However, he did not mention Awlaki by name. At the same time, "Another American security official told CNN that U.S. authorities want al-Awlaki for questioning but denied there is an explicit order to "take him out."(11)
In April, counterterrorism officials confirmed that Awlaki was being targeted for killing, claiming that he had "shifted from encouraging attacks on the United States to directly participating in them". (13)
In June, Obama's top terrosism adviser, while refusing to discuss the hit lists, suggested to the Washington Times that "dozens" of Americans could be on the list:
"There are, in my mind, dozens of U.S. persons who are in different parts of the world, and they are very concerning to us," said John O. Brennan, deputy White House national security adviser for homeland security and counterterrorism....
The remarks came in response to questions about procedures used by the president to order lethal strikes on U.S. citizens who have joined al Qaeda or other terrorist groups." (14)
In early July, Nasser Awlaki retained the CCR and ACLU to seek a federal court order restraining the administration from killing his son without due process. However, on July 16, the Treasury Department responded by designating Anwar Awlaki a "Specially Designated Global Terrorist." That designation makes it illegal for any individual to have any business dealings with Awlaki and, therefore, illegal for any lawyer to represent him in court without a license from the Department. (15)
The ACLU and CCR applied for such a license on July 23, asking for an urgent reply (on the grounds that Awlaki could be killed before the injunction was heard. However, the Treasury Department did not even bother to reply. Accordingly, the two groups sued Treasury Secretary Timothy Geithner and the Department on Aug. 3, seeking, "on an emergency basis, an Order declaring the Treasury Department's asserted power to be without statutory authority and/or in violation of the U.S. Constitution, and to bar the U.S. Government from imposing any penalties whatsoever (criminal or otherwise) on the ACLU and CCR for providing legal representation to Awlaki." The supporting brief argues that violates the plaintiffs' First Amendment rights to stop them from litigating, as well as violating the separation of powers for the Executive to dictate who can or cannot represent whom in court. (15)
The Treasury Department subsequently issued a license, but that lawsuit continues. However, with the license now in place, the second suit Al-Aulaki vs. Obama could also proceed. That suit seeks to have the court (1) declare that the killing of U.S. citizens, except where they represent concrete, specific, and imminent threats, which cannot be neutralized by other means, is unconstitutional; (2) enjoin the defendants Obama, Defense Secretary Robert Gates, and CIA Director Leon Panetta from having Awlaki killed, unless those circumstances apply; and and (3) have the defendants disclose the criteria they use to deciding to target an American citizen.
Argues the brief:
The right to life is the most fundamental of all rights protected by the Constitution and by international law. Outside the context of armed conflict, the intentional killing of a civilian without prior judicial process is unlawful except in the narrowest and most extraordinary circumstances.
The United States is not at war with Yemen, or within it. Nonetheless, U.S. government officials have disclosed the government's intention to kill U.S. citizen Anwar Al-Aulaqi, who is believed to be located there, without charge, trial, or conviction. . . .
Outside of armed conflict, both the Constitution and international law prohibit the use of lethal force against civilians except as a last resort to prevent concrete, specific, and imminent threats that are likely to cause death or serious physical injury. An extrajudicial killing policy under which individuals are added to "kill lists" after secret bureaucratic processes and remain on the lists even in the absence of any reason to believe that they pose a threat of imminent harm goes far beyond what the Constitution and international law permit.
That the government has kept secret the standards under which it targets U.S. citizens for death independently violates the Constitution: U.S. citizens have a right to know what conduct may subject them to execution at the hands of their own government. Due process requires, at a minimum, that citizens be put on notice of what may cause them to be put to death by the state. (1)
Columnist Glenn Greenwald, who has written extensively on the affair, comments: "What I've found most disturbing about this controversy from the start is how many Americans are willing to blindly believe the Government's accusations of Terrorism against their fellow citizens -- provided they're Muslims with foreign-sounding names -- without needing to see any evidence at all. All government officials have to do is anonymously leak to the media extremely vague accusations against someone without any evidence presented (Awlaki is involved in multiple plots!!), and a substantial number of people will then immediately run around yelling: Kill that Terrorist!!"
He adds: "As always with this topic, it's worthwhile to recap the worldview of many Democrats (including Barack Obama) on such matters:
"It was an extreme outrage of the highest order -- a shredding of the Constitution -- when George Bush imprisoned or even just eavesdropped on American citizens without any due process. But it's perfectly acceptable -- even noble -- for Barack Obama to kill them without any due process."
(1)
(1) Glenn Greenwald, "Lawsuit challenges Obama's power to kill citizens without due process," Salon, Aug. 30, 2010. Web. Sep. 6, 2010.
(9) "Deaths in Yemen raid on al-Qaeda," Aljazeera, Dec. 24, 2009. Web. Sep. 6, 2010.
(10) Dana Priest, "U.S. military teams, intelligence deeply involved in aiding Yemen on strikes," Washington Post, Jan. 27, 2010. Web. Sep. 6, 2010.
(11) Barbara Starr, "Intelligence chief: U.S. can kill Americans abroad," CNN, Feb. 4, 2010. Web. Sep. 6, 2010.
(12) "Obama Administration: US Forces Can Assassinate Americans Believed to Be Involved in Terrorist Activity," Democracy Now!, Feb. 9, 2010. Web. Sep. 6, 2010.
(13) Scott Shane, "U.S. Approves Targeted Killing of American Cleric," New York Times, Apr. 4, 2010. Web. Sep. 6, 2010. http://www.nytimes.com/2010/04/07/world/middleeast/07yemen.html?hp
(14) Eli Lake, "Dozens of Americans believed to have joined terrorists," Washington Times, June 25, 2010. Web Sep. 6, 2010.
On August 30, the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) filed suit on behalf of Anwar Awlaki, seeking a court order barring the Obama administration from having Awlaki assassinated. The suit alleges that assassinating Awlaki would violate his Fifth Amendment right to not be deprived of life without due process. The groups represent Awlaki's father, Nasser Awlaki, as plaintiff. (Anwar Awlaki could not file suit because he is in hiding in Yemen.) (1)
Anwar Awlaki (also spelled Aulaki, Aulaqi, al-Awlaki, al-Aulaki, or al-Aulaqi) is a dual citizen of the United States and Yemen. While described by some as a "senior recruiter for Al-Qaeda," "the Bin Laden of the internet," and the like (2), he has never been convicted or even indicted in the United States for any crime. (3)
A former imam in San Diego, CA, and Falls Church, VA, Awlaki was investigated by the FBI as far back as 1999 for, among other things, alleged ties to Sheik Omar Rahman (now in prison for the 1993 World Trade Center bombing). That investigation was closed in 2000 for lack of evidence. (4)
In 2001, Awlaki again came to the FBI's attention, as the alleged "spiritual adviser" to accused 9/11 hijacker Nawaq Alhazmi, who had prayed at his mosques in both states. A second accused hijacker, Khalid al-Midhar, also prayed at his San Diego mosque and spoke to him there; and a third, Hani Hanjour, did the same in Falls Church. However, the FBI, "whose agents interviewed Mr. Awlaki four times in the days after the Sept. 11 attacks, concluded that his contacts with the hijackers and other radicals were random, the inevitable consequence of living in the small world of Islam in America." (5)
"In the weeks after the Sept. 11 attacks," the New York Times later reported, Awlaki "condemned the 9/11 murders." At the same time, though, he "publicly doubted the Muslim role in the Sept. 11 attacks. (The F.B.I., he wrote a few days afterward, simply blamed passengers with Muslim names.)" (5)
As U.S. authorities began arresting Muslims in 9/11's wake, Awlaki became increasingly outspoken, declaring in March 2002: "So this is not now a war on terrorism, we need to all be clear about this, this is a war on Muslims! Not only is it happening worldwide, but it's happening right here in America that is claiming to be fighting this war for the sake of freedom." He moved to Britain that year, and began preaching the same message there. (5)
Awlaki's name was placed on the U.S. government's "terror watch" list in July, 2002. On his return to the U.S. in October, he was arrested at JFK Airport on charges of fraud. (Although born in the U.S., he had attended Colorado State University on an F-1 foreign student visa, having written on his visa application that he was born in Yemen.) He was freed when it turned out that the warrant for his arrest had been rescinded. (4)
Awlaki moved to Yemen in 2004. In 2006 he was imprisoned by the Yemeni government, apparently under U.S. pressure, and once again interrogated by the FBI; but "by the end of 2007, American officials, some of whom were disturbed at the imprisonment without charges of a United States citizen, signaled that they no longer insisted on Mr. Awlaki's incarceration, and he was released." (5)
Awlaki has also been linked by the media to Nidal Malik Hasan, the accused killer of 13 U.S. Army personnel at Fort Hood, TX, on Nov. 5, 2009. In a Nov. 16 interview, the Washington Post reported that Awlaki admitted to have "developed an e-mail correspondence" with Hasan, but "said that he neither ordered nor pressured Maj. Nidal M. Hasan to harm Americans." (6)
For its part, "after examining the e-mails and previous terrorism investigations, the FBI had found no information to indicate [Hasan] had any co-conspirators or was part of a broader terrorist plot." (7)
Awlaki's name has also been linked to accused underwear bomber Farouk AbdulMutallab. Awlaki later told a Yemeni journalist that he had also been "in correspondence" with AbdulMutallab, but again denied giving him any orders. (8)
It was widely reported on Dec. 24, 2009, that Awlaki had been killed in a joint operation by Yemeni security forces and the U.S. military's clandestine Joint Special Operations Command (JSOC). Some Yemenis were sceptical, like Sanaa University political science professor Abdullah al-Faqih, who told Al Jazeera news organization: "I have serious doubts about [Awlaki] being a target -- simply because he is well connected to the government and there is no serious case against him." (9)
However, on Jan. 27 the Washington Post reported that Awlaki, who "was not killed, ... has since been added to a shortlist of U.S. citizens specifically targeted for killing or capture by the JSOC, military officials said." (10)
Later in the same article, the Post gave more information about the shortlist:
After the Sept. 11 attacks, Bush gave the CIA, and later the military, authority to kill U.S. citizens abroad if strong evidence existed that an American was involved in organizing or carrying out terrorist actions against the United States or U.S. interests, military and intelligence officials said. The evidence has to meet a certain, defined threshold. The person, for instance, has to pose "a continuing and imminent threat to U.S. persons and interests," said one former intelligence official.
The Obama administration has adopted the same stance. If a U.S. citizen joins al-Qaeda, "it doesn't really change anything from the standpoint of whether we can target them," a senior administration official said. "They are then part of the enemy."
Both the CIA and the JSOC maintain lists of individuals, called "High Value Targets" and "High Value Individuals," whom they seek to kill or capture. The JSOC list includes three Americans, including Aulaqi, whose name was added late last year. (10)
National Intelligence Director Dennis Blair confirmed to the House Intelligence Committee in February that such a policy was in place. "'We take direct action against terrorists in the intelligence community,' Blair told lawmakers at the hearing. 'If that direct action -- we think that direct action will involve killing an American, we get specific permission to do that.' Blair said the reason he made the admission was to reassure Americans." (11)
Blair added that "Being a US citizen will not spare an American from getting assassinated by military or intelligence operatives overseas if the individual is working with terrorists and planning to attack fellow Americans." (12) He did not, though mention Awlaki by name. At the same time, "Another American security official told CNN that U.S. authorities want al-Awlaki for questioning but denied there is an explicit order to 'take him out.'" (11)
In April, counterterrorism officials confirmed anonymously that Awlaki was on a target list, claiming that he had "shifted from encouraging attacks on the United States to directly participating in them". (13)
In June, Obama's top terrorism adviser, while refusing to discuss the hit lists, suggested to the Washington Times that "dozens" of Americans could be on them:
"There are, in my mind, dozens of U.S. persons who are in different parts of the world, and they are very concerning to us," said John O. Brennan, deputy White House national security adviser for homeland security and counterterrorism....
The remarks came in response to questions about procedures used by the president to order lethal strikes on U.S. citizens who have joined al Qaeda or other terrorist groups." (14)
In early July, Nasser Awlaki retained the CCR and ACLU to seek a federal court order restraining the administration from killing his son without due process. On July 16, the Treasury Department responded by designating Anwar Awlaki a "Specially Designated Global Terrorist." That designation makes it illegal for any individual to have any business dealings with Awlaki, and therefore illegal for any lawyer to represent him in court, without a license from the Department. (15)
The ACLU and CCR applied for such a license on July 23, asking for an urgent reply (on the grounds that Awlaki could be killed before the injunction was heard). The Treasury Department did not even bother to reply at the time.
Accordingly, the two groups sued Treasury Secretary Timothy Geithner and the Department on Aug. 3, seeking, "on an emergency basis, an Order declaring the Treasury Department's asserted power to be without statutory authority and/or in violation of the U.S. Constitution, and to bar the U.S. Government from imposing any penalties whatsoever (criminal or otherwise) on the ACLU and CCR for providing legal representation to Awlaki." The supporting brief argues that it violates the plaintiffs' First Amendment rights to stop them from litigating, as well as violating the separation of powers for the Executive to dictate who can or cannot represent whom in court. (15)
The Treasury Department subsequently issued a license, but that lawsuit continues. However, with the license now in place, the original suit -- Al-Aulaki vs. Obama -- could also proceed. That suit seeks to have the court (1) declare that the killing of U.S. citizens, except where they represent concrete, specific, and imminent threats which cannot be neutralized by other means, is unconstitutional; (2) enjoin the defendants -- Obama, Defense Secretary Robert Gates, and CIA Director Leon Panetta -- from having Awlaki killed, unless those circumstances apply; and (3) have the defendants disclose the criteria they use in deciding to target an American citizen.
The plaintiffs' brief argues in part:
The right to life is the most fundamental of all rights protected by the Constitution and by international law. Outside the context of armed conflict, the intentional killing of a civilian without prior judicial process is unlawful except in the narrowest and most extraordinary circumstances.
The United States is not at war with Yemen, or within it. Nonetheless, U.S. government officials have disclosed the government's intention to kill U.S. citizen Anwar Al-Aulaqi, who is believed to be located there, without charge, trial, or conviction. . . .
Outside of armed conflict, both the Constitution and international law prohibit the use of lethal force against civilians except as a last resort to prevent concrete, specific, and imminent threats that are likely to cause death or serious physical injury. An extrajudicial killing policy under which individuals are added to "kill lists" after secret bureaucratic processes and remain on the lists even in the absence of any reason to believe that they pose a threat of imminent harm goes far beyond what the Constitution and international law permit.
That the government has kept secret the standards under which it targets U.S. citizens for death independently violates the Constitution: U.S. citizens have a right to know what conduct may subject them to execution at the hands of their own government. Due process requires, at a minimum, that citizens be put on notice of what may cause them to be put to death by the state. (1)
Columnist Glenn Greenwald, who has written extensively on the affair, comments: "What I've found most disturbing about this controversy from the start is how many Americans are willing to blindly believe the Government's accusations of Terrorism against their fellow citizens -- provided they're Muslims with foreign-sounding names -- without needing to see any evidence at all. All government officials have to do is anonymously leak to the media extremely vague accusations against someone without any evidence presented (Awlaki is involved in multiple plots!!), and a substantial number of people will then immediately run around yelling: Kill that Terrorist!!"
He adds: "As always with this topic, it's worthwhile to recap the worldview of many Democrats (including Barack Obama) on such matters:
"It was an extreme outrage of the highest order -- a shredding of the Constitution -- when George Bush imprisoned or even just eavesdropped on American citizens without any due process. But it's perfectly acceptable -- even noble -- for Barack Obama to kill them without any due process." (1)
---
Sources:
Photo: Anwar Awlaki in Yemen, October 2008. Photo by Muhammad ud-Deen (courtesy Wikimedia Commons).
(3) Margaret Coker and Charles Levenson, "Yemen in Talks for Surrender of Cleric," Wall Street Journal, Jan. 15, 2010. Web. Sep. 6, 2010. http://online.wsj.com/article/SB10001424052748704363504575003434023229978.html.
(5) Scott Shane & Souad Mekhennet, "Imam’s Path From Condemning Terror to Preaching Jihad," New York Times, May 8, 2010. Web. Sep. 6, 2010. http://www.nytimes.com/2010/05/09/world/09awlaki.html?pagewanted=1&_r=1&hp
(6) Sundarsan Raghaven, "Cleric says he was confidant to Hasan," Washington Post, Nov. 16, 2009. Web. Sep. 6, 2010. http://www.washingtonpost.com/wp-dyn/content/article/2009/11/15/AR2009111503160.html
(11) Barbara Starr, "Intelligence chief: U.S. can kill Americans abroad," CNN, Feb. 4, 2010. Web. Sep. 6, 2010. http://www.cnn.com/2010/POLITICS/02/04/killing.americans/index.html?eref=rss_latest
(12) "Obama Administration: US Forces Can Assassinate Americans Believed to Be Involved in Terrorist Activity," Democracy Now!, Feb. 9, 2010. Web. Sep. 6, 2010. http://www.democracynow.org/2010/2/9/obama_administration_us_forces_can_assassinate
(14) Eli Lake, "Dozens of Americans believed to have joined terrorists," Washington Times, June 25, 2010. Web Sep. 6, 2010. http://www.washingtontimes.com/news/2010/jun/24/dozens-from-us-on-list-of-targets-as-terrorists/?page=1
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Challenging Obama's assassination policy
In 2001, Awlaki again came to the FBI's attention, as the alleged "spiritual adviser" to accused 9/11 hijacker Nawaq Alhazmi, who had prayed at his mosques in both states. A second accused hijacker, Khalid al-Midhar, also prayed at his San Diego mosque and spoke to him there; and a third, Hani Hanjour, did the same in Falls Church. However, the FBI, "whose agents interviewed Mr. Awlaki four times in the days after the Sept. 11 attacks, concluded that his contacts with the hijackers and other radicals were random, the inevitable consequence of living in the small world of Islam in America." (