Foreign and Defense Policy, Terrorism

Al-Awlaki gets his day in court

Image Credit: DrSmith 7383 (Flickr) (CC BY 2.0)

Image Credit: DrSmith 7383 (Flickr) (CC BY 2.0)

On Wednesday, Judge Colleen McMahon of the Manhattan federal court rejected an effort by the New York Times and the ACLU to use the Freedom of Information Act to compel the Obama administration to fork over its classified legal opinion justifying the 2011 lethal drone strike against al-Qaeda imam and U.S. citizen Anwar al-Awlaki.

However, in dismissing their suit, Judge McMahon made it clear that she was extremely uncomfortable in doing so: “I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusion a secret,” she noted. She then went on to suggest that the president and his administration might well be in violation of both the Constitution’s Treason Clause and 18 USC 1119, which makes it illegal for a US national to kill another US national outside the United States.

Now, ignoring for the moment the important issue of whether the administration should make public more of its case for killing al-Awlaki—and there is a case for doing so—the Judge’s preening about the laws and the Constitution are little more than liberal moral indignation hiding behind judicial garb. Her dicta in this instance are not supported either by constitutional history or common sense.

First, a US person who engages “in armed combat against the United States” is indeed engaged in an act of treason. But at no time in US history has it been the case that the US government is obligated to give such a person a trial. If the person happens to be in US custody or is readily secured, then, a trial is the appropriate remedy. But if not–and there is no reason to believe al-Awlaki could be easily and safely captured–the only remaining issue is whether his behavior amounted to engaging “in armed combat against the United States.” And on that front, there is, according to the Justice Department, plenty of evidence, such as al-Awlaki’s personal hand in directing the Christmas Day plot in 2009 to bring down a passenger airline over Detroit, to indicate that he was.

As for the suggestion that the president and his advisors might be in violation of the US Code and, hence, murderers, it’s really unfathomable that Judge McMahon would even hint as such. Putting aside the question of whether the 2001 Authorization for the Use of Military Force (AUMF) is applicable to al-Qaeda aligned terrorist organizations outside of Afghanistan and Pakistan, such as al-Awlaki’s al-Qaeda in the Arabian Peninsula (and two successive administrations, with Congress’ implicit blessing, believing it is), if Anwar al-Awlaki was involved in terrorist plots against the United States, then, the president not only has the constitutional discretion to defend the country by striking at al-Awlaki but, under his oath of office, he has a positive duty to do so.

If there is any “justice” in the judge’s remarks, it’s that she is taking aim at a president who, while campaigning for the office in 2008, found it all too easy to claim his predecessor, George Bush, was undermining our constitutional system by his own actions in the “war on terror.” It wasn’t true then (see my “The Myth of the (Bush) Imperial Presidency”) and it isn’t true now.

23 thoughts on “Al-Awlaki gets his day in court

  1. But at no time in US history has it been the case that the US government is obligated to give such a person a trial.

    Actually, that is wrong. The Constitution says the government is obligated to give traitors a trial:

    Article III, Section 3, Paragraph 1:

    “Treason against the United States shall only consist in levying war against them…No person shall be convicted of treason unless on the Testimony of two witnesses to the same overt act, or a confession in open court.”

    There was no open court, therefore the President violated the law. Was it treason? No. But what it is an impeachable offense.

        • So no action can be taken against a citizen traitorously waging war, unless it’s possible to capture him and put him on trial?

          • So, while the American terrorist is trying to kill us, we’re supposed to wait tioll we can catch him and THEn try him in a court and hopefully convict?

          • Again, no.

            You are confusing the whole question anyway.

            Al-Awlaki was not on a battlefield. He was not in Afghanistan or Iraq. There were no US troops near him. This was not two armies meeting on a battlefield: this was a targeted assassination. The president’s justification for this assassination was that Al-Awlaki was a traitor and Mr. Schmitt’s justification is that traitors are not guaranteed trials. This is demonstrably false.

            Mr. Al-Awlaki may very well have been a traitor. I don’t know and you don’t know. All we do know is the government has said “he was. Trust us.” I am saying “do your Constitutional obligation and show us the proof.”

  2. “… if Anwar al-Awlaki was involved in terrorist plots against the United States, then, the president not only has the constitutional discretion to defend the country by striking at al-Awlaki but, under his oath of office, he has a positive duty to do so.”

    So, by this logic, then, President Clinton was obligated to hunt down Timothy McVeigh like a dog and summarily execute him? (You’re the one who set aside the applicability of the 2001 AUMF.)

    • >So, by this logic, then, President Clinton was obligated to hunt down Timothy McVeigh like a dog and summarily execute him?

      That is not logical. One could be caught, one could not.

      Now if in trying to hunt down TM, he fights back, then the officers are entitled to shot to kill. So, by that logic, yes Clinton would have been entitled to kill him on the spot.

      • yes Clinton would have been entitled to kill him on the spot.

        But not with a drone strike.

        One could be caught, one could not.

        They didn’t even try to catch Al-Awlaki

        • >But not with a drone strike.

          It would be safer for the cops who would be sent to arrest him.

          >They didn’t even try to catch Al-Awlaki

          Its much easier to say things when your hiding behind your keyboard.

          • It would be safer for the cops who would be sent to arrest him.

            So would banning all forms of firearms, but that doesn’t make it right.

            Drone strikes? Random execution of citizens without a trial? This is police state stuff here. This is not acceptable behavior in a free and just society.

          • > its much easier to say things when your hiding behind your keyboard.

            Yemen isn’t either one of them. Its more of a no man’s land and if you’re from the “wrong” tribe, you’re not welcome!

          • I am not talking about Yemen. I am talking about the United States. For the President to use drones to assassinate US citizens without a trail, regardless of where they reside at any given point, is a clear violation of the Constitution and moral law.

            No government ever has the right to execute or imprison its citizens without due process.

            The only justification presented here is that Al-Awlaki was a bad guy, so therefore he deserved to be killed. Well, that is not good enough. This is not Stalinist Russia. The charges against him must be proven in open court, and if he cannot be found then you try him in absentia.

          • >I am not talking about Yemen.

            That’s where the guy was when the drone got him.

            > I am talking about the United States.

            No drone has ever killed an American on American soil without a trial.

            >The only justification presented here is that Al-Awlaki was a bad guy, so therefore he deserved to be killed.

            Worse than merely “bad.” And yet that’s exactly what happened to Cameron Todd Willingham in Texas–executed by the state for a crime that didn’t even take place and wasn’t granted a stay by the gov because he was “a bad guy.”

            >The charges against him must be proven in open court, and if he cannot be found then you try him in absentia.

            Granted and they knew exactly where he was.

          • That’s where the guy was when the drone got him.

            That is irrelevant. The order was given here and the Constitution protects US citizens from their government regardless of where they are in the world.

            Worse than merely “bad.” And yet that’s exactly what happened to Cameron Todd Willingham in Texas–executed by the state for a crime that didn’t even take place and wasn’t granted a stay by the gov because he was “a bad guy.”

            After he was convicted in open court.

            Let justice be done! This “President as judge, jury, and executioner” argument is unsupported by any moral argument. This is the stuff of tyrants. The 5th and 6th Amendments, as well as Article III, Section 3, Paragraph 1 of the Constitution all gaurentee Mr. Al-Awlaki the right to a speedy, public trial, and to not be deprived of his rights without due process. By denying him these rights for no reason other than “he’s a bad guy and we’re too lazy to go after him” is barbaric.

            This is the difference between those who love freedom and those who just love the idea of it. Those who love freedom defend the rights of all people. Those who love the idea of freedom only defend the rights of those who agree with them.

          • >After he was convicted in open court.

            When no crime took place. Kinda makes a mockery of “Let justice be done!”, eh?

            >This “President as judge, jury, and executioner” argument is unsupported by any moral argument.

            Save the crocodile tears/fake outrage. We both know that if McCain had won the election and gotten him, it would be “Mission Accomplished!”

            >This is the difference between those who love freedom and those who just love the idea of it. Those who love freedom defend the rights of all people. Those who love the idea of freedom only defend the rights of those who agree with them.

            As if I don’t.

            (KJV) Revelation 21:8 But the fearful, and unbelieving, and the abominable, and murderers, and whoremongers, and sorcerers, and idolaters, and all liars, shall have their part in the lake which burneth with fire and brimstone: which is the second death.

            Revelation 21:27 And there shall in no wise enter into it any thing that defileth, neither whatsoever worketh abomination, or maketh a lie: but they which are written in the Lamb’s book of life.

            Revelation 22:15 For without are dogs, and sorcerers, and whoremongers, and murderers, and idolaters, and whosoever loveth and maketh a lie.

          • >By denying him these rights for no reason other than “he’s a bad guy and we’re too lazy to go after him” is barbaric.

            Who said anything about being lazy? Do you have any idea of how difficult it would have been to aprehend him? What would have been really barbaric would be to knowingly sacrifice the lives of who knows how many brave young men just to satisfy somone’s fake moral outrage.

          • When no crime took place.

            At least he got his day in court. Did the system fail? Yes, but at least it was given a chance. That is far more than what can be said about Al-Awlaki.

            Save the crocodile tears/fake outrage. We both know that if McCain had won the election and gotten him, it would be “Mission Accomplished!”

            Read what I said earlier: No government ever has the right to execute or imprison its citizens without due process.

            As if I don’t.

            Your actions here clearly show you do not. You refuse to support Mr. Al-Awlaki’s right to trial. Supporting freedom means supporting it forever and always, not just when it is easy.

            Who said anything about being lazy?

            You did. You said we knew precisely where he was (which is true). But you said it is better to use drone strikes than to try to apprehend criminals. This is not equilivent to using drones on a battlefield. This is equilivent, however, to using a missile to kill and American citizen who, in the eyes of the law, had done thing wrong (as he was not convicted). If there is evidence out there to suggest otherwise, why hide it?

            Every US citizen has the right to due process and a trial by jury. Period, end of story.

          • > You refuse to support Mr. Al-Awlaki’s right to trial.

            Hmmm, failed Reading 101, did we? What part of this exchange did you conveniently forget:

            YOU: The charges against him must be proven in open court, and if he cannot be found then you try him in absentia.

            ME: Granted and they knew exactly where he was.

            > But you said it is better to use drone strikes than to try to apprehend criminals.

            I never said anything of the sort. Why lie?

          • Hmmm, failed Reading 101, did we? What part of this exchange did you conveniently forget…

            None of it. Just the fact that you are oddly insistent that the president did the right thing.

            I never said [drone strikes are better]

            In your comment on Jan 4, 9:47 AM, you said that it would be safer to use a drone strike to kill McVeigh than send cops to arrest him.

            You then go on to say how difficult it would be to send someone to go capture Al-Awlaki, and that it would be barbaric to do so (your comment on Jan 4, 1:44 PM).

            Those two comments taken together says to me that you prefer drone strikes to arrest. If I have misunderstood you, then I apologize.

  3. David, I think that the problem is that when we look at someone like Anwar al-Awlaki, people can easily say, yeah, dirty rotten traitor, he had it coming, but lawyers being lawyers, invariably it’s not the thing itself but the precedent that’s set that is problematic. What will be the next expansion of presidential power this will be used to justify?

    You speak of the difficulties associated with pursuing al-Awlaki in Yemen, and yes, there are substantial. However, we generally have the cooperation of the Yemeni government in these matters; in Pakistan, we did not, at least not consistently and entirely, but we still took the risk necessary to go after Bin Laden. We (NATO) enabled the capture of Gaddafi by dropping Hellfire missiles and 500 pound JDAMs onto his convoy, followed up by ground pursuit. Could we not have pursued a similar approach with al-Awlaki?

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