http://www.theatlantic.com/politics/archive/2011/10/the-secret-committee-that-drafts-obamas-kill-list/246286/

I find this article to be deeply disturbing. I wrote below that war is a killing business, killing and destroying, but in war one legitimately kills enemy soldiers on the basis of their group identity as members of an armed force. Even in counter-terrorist operations, the decision to kill is contingent on the functionality of the individual within the group but it is the group that is the target on thre basis of their shared identity and shared hostility. The violence against such groups is authorised by Congress, even in the absence of a declaration of war. This article in The Atlantic Describes a system in which a faceless panel of NSC staffers weighs the pros and cons concerning an American enemy combatant and decides, subject to presidential review, that the armed forces or CIA should kill this person.

That does not sound or smell like war to me. It seems to be exactly the kind of arbitrary "law" and judicial practise that caused our ancestors to rebel against the 18th Century British government. To target an individual protected by the constitution for extra-legal death by the US Government is a far different matter from pursuing the same person as part of his secret army.

An opinion on this depends on whether or not you think we are at war and whether or not you think Awlaki was an enemy combatant. I think that we are at war and that Awlaki was an enemy combatant. Based on these views I judge his death from above to be an act of war against someone who had made himself an enemy of the United States and was a present danger.

On the other hand we must consider the evident expansion of power in the United States of the various internal security groups: the FBI, ATF, the Department of Justice, the FISA courts and the federal judiciary in general.

I am accustomed to wars fought against America's enemies abroad, not "wars" of suppression internally focussed against dissenters. There is a great danger of that. pl

The killing of Anwar al-Awlaki certainly raises profound legal questions. Nonetheless, he was intensely involved in activities that threatened the lives of other American citizens. Consequently, standing aside in the face of such activities and allowing them to continue unabated--and in a foreign country from which extradition related to legal decisons made here is practically impossible--would have been a highly risky course of action.

The Fifth Amendment to the US Constitution explicitly guarantees the right to life of American citizens in the absence of due process of law to determine when to withdraw that right. Having only limited legal expertise, I am hardly familiar with various aspects of US law that might be available related to revoking citizenship as a prelude to taking more aggressive action against such dangerous US nationals overseas. From my tour as a US consular officer abroad, I do recall that a 1960's Supreme Court ruling, "Afroyim vs. Rusk," held that the government may revoke the citizenship of those who served in "the armed forces of a state engaged in hostilities against the United States." This ruling, however, leaves some measure of legal ambiguity as to what constitutes a "state," its "armed forces," or perhaps even "hostilities."

Nevertheless, Mr. Awlaki had deliberately and continuously engaged in activities aimed very pointedly at threatening the security of the United States and the lives of other American citizens. And even in this country there arise regularly instances in which police are compelled to take life in the midst of situations in which other lives are imminently at risk or a citizen is forgiven for taking a life because it was done in the context of self-defense. But there are, of course, laws empowering the police or the courts to take such actions. So it seems we are left with a dilemma which, strangely, has never been addressed directly by US law in more than two centuries since the ratification of the US Constitution.

If Mr. al-Awlaki had coducted such dangerous activities in the US, it is reasonably fair to assume that he would be under arrest on serious charges--or on the run with police empowered to use deadly force if necessary to subdue him if he were to resist arrest. But even that presumption does not address the specfic case in front of us now.

Yet, I personally still believe simply doing nothing with respect to individuals such as Mr. Awlaki in order to remain absolutely sure of not violating US law seems difficult to defend. Consequently, it would be best if the legalities involving this and other similar cases sure to arise would be addressed by the White House, the Congress, and the Supreme Court as expeditiously as possible to eliminate all possible ambiguity. The current situation (leaving dangerous individuals like Mr. Awlaki in a position to enjoy a certain personal immunity in directly menacing others derived from their American citizenship plus their absence from the US or the US government striking out against them without a firm legal justification) seems intolerable.

However, until such legal matters are put to rest by the collective US government, it is difficult to either applaud or condemn unconditionally the action taken against Anwar al-Awlaki, even though the world surely is a better place without him.

It is hazardous to reach conclusions on something as important as due process of law based on one or two specific cases. (Someone can always come up with counter-examples that would suggest a different direction.) And to say that it makes no difference whether or not armed hostilities with another state are involved is to ignore a huge distinction, one that is the basis for, among other things, a whole body of international law.

I have addressed the topic with regard to the killings in Yemen in my regular blog:

http://nationalinterest.org/blog/paul-pillar/the-killings-yemen-the-rule-law-5963

Imagine an FBI sniper who’s got a criminal in his sights. Law enforcement is in a high-stakes standoff with a deadly gang, negotiation is impossible, and use of deadly force is authorized. This particular target isn’t armed – at the moment – but he’s a known leader of the gang. Sending a team in to capture him is technically possible, but the gang is so well-entrenched and well-armed that the risk of casualties would be prohibitive. So the practical alternatives are kill him or let him go.

I’d say, take the shot.

No trial. No due process. No attempt to take him alive. Just pull the trigger.

My hypothetical scenario is an unlikely and extreme one for domestic law enforcement – but it happens all the time in international counterterrorism. It’s better legally, morally, and tactically to take terrorists alive, especially the leaders, since they may yield valuable intelligence. But they tend to hole up in places where even Special Operations can’t penetrate without a high risk of casualties, up to the death or capture of the entire team. The intelligence we have on a target’s location is often so fleeting that he’d be gone by the time we got a team in the air, anyway. So we’re faced with the same choice as my hypothetical sniper: kill him now or let him go, in the full knowledge that he will keep plotting the deaths of innocents.

That Anwar al-Awlaki is an American citizen complicates the legal issues, and I don’t pretend to be a lawyer, let alone one qualified in international human rights. But trying to bring him to trial would risk too many lives. So would letting him go. If killing someone like Anwar al-Awlaki without due process is illegal, we should change the law.

– Sydney J. Freedberg Jr.

www.LearningFromVeterans.com

If a US citizen had returned to Japan or Germany during World War II and died fighting US troops in the Philippines or on the beaches of Normandy the issue would not have even been raised. I don't see the difference.

The real issue here is where do we go from here. The administration’s plan to primarily depend on drone strikes alone and walk away from Afghanistan is a disaster in the making. This strategy will give al Qaeda an opportunity to get back in the game. In two years we’ll be chasing targets in at least three countries--Yemen, Pakistan, and Afghanistan. When that happens what Obama is planning to do won't seem like progress.

The Awlaki killing can only be interpreted and assayed meaningfully if placed in the context of the ‘War On Terror.’ For America today is not the same country that it was before 9/11. Our ethical standards, our sense of danger and vulnerability, our understanding of right and wrong, our readiness to place enormous discretionary power in the hands of our rulers – all have been qualitatively altered. The subtle balance between personal liberties and raison d’etat has markedly shifted in the latter direction. Moreover, we have yielded to our government leaders the right to define the ‘necessities’ that justify arbitrary actions that contravene tradition, principle and even law. The trauma of 9/11 made Americans scared, vengeful and desperately needy for protection – physical and emotional. Hence, a climate emerged that is favorable to the abuse of power. That same climate fed the imagining of enemies of mythic proportions. Osama bin-Laden (with reason) was evil incarnate – with a coterie of diabolical associates like Zawahiri, Zarqawi and more recently Anwar al-Awlaki (with less reason). A marginal figure, Awlaki figured ominously in the American mind as an apostate to the national creed, a traitor to Americanism who was born in Los Cruces (The Crosses) New Mexico. It is as if Americans’ fearful mood has to have a specific, personalized point of reference; otherwise it would turn into the debilitating, free floating dread.

A brief recitation of the innovations associated with the ‘War On Terror’ reminds us how far we have travelled from being a polity that held fast to legality, individual freedoms and fairness as the pillars of our civic union. This now is a nation where state organs actively spy on its citizens, by means electronic or otherwise, with either the flimsiest of judicial review or none at all. Our communications, our bank accounts, our associations have been declared the legitimate object of attention for a multitude of agencies who arbitrarily decide what is just cause. American citizens in the United States (and many more with resident status) have been held in detention under terms that contravene the principle of habeas corpus. The right of assembly has been abridged. The Central Intelligence Agency itself engages in these practices domestically in violation of specific legal prohibitions. The CIA has gone so far as to collaborate with the New York City police department so as to enable the latter to operate outside of its jurisdiction as the Agency’s sub-contractor. The NYPD, the FBI and several other local police forces have placed under surveillance residents of entire neighborhoods based solely on their ethnicity/religion and have made a permanent record of their daily activities. None of this conduct occurred or would have been permitted between the revelations of the Church Committee about CIA domestic activities in the mid-1970s and 9/11.

In effect, the United States’ leaders have twisted the meaning of the term ‘threat’ so as to render it a catch-all phase referring to dangers conjectured as well as actual, maturing at some indefinite time in the future as well as in the near term, and covering persons unwitting of their associations who provide even intangible forms of ‘aid and comfort’ to anyone who may be placed in the former broad categories. Preventive action in the police and intelligence realm is the norm every bit as much as it was the excuse for invading a non-threatening Iraq. Preventive action is also the reason given for attacks on militant Islamist groups from Chad, to Somalia, to Palestine, to Thailand, to Tajikistan to Pakistan who have no intention or capability of striking the United States. But – according to this mindset - they may contribute, by some means or other, to some sort of menace that may surface at some time in the future. Therefore they are legitimate targets.

The Awlaki killing is more readily comprehensible set in these frames of reference. An Islamic militant, tied to the formation popularly call al-Qaeda in the Arabian Peninsula, one who preaches hatred of America, one who calls for violent acts against Americans, and the man who sponsored the Christmas shoe bomber two years ago, Awlaki fully qualifies to be put on Washington’s hit list – according to the criteria sketched above. Legal niceties count for little if anything when someone like Awlaki is in the cross-hairs. Obama’s Justice Department under Attorney General Eric Holder seemingly fashioned some document that made the case for the legality of the killing. It is reported to have been agreed unanimously by a panel of government lawyers. Can we doubt that the conclusion preceded the legal reasoning that supposedly justified it? In this sense, Holder et al are behaving in a matter little different from John Yoo et al who cobbled together a pseudo-legal scaffolding that supported a dedicated program of torture, indefinite detention of tens of thousands, and related scandalous behavior. Yoo thought laws, rules and treaties ‘quaint.’ Obama and Holder evidently view them similarly. And that is the key point.

There has been no legal process that found Awlaki guilty of a capital crime AND there was no legal process worthy of the name that made the determination that his killing could be reconciled with U.S. law and the U.S. constitution. Let us be clear exactly what has been done. President Obama publicly declared more than a year ago that he had the right to kill any American citizen residing outside the country who he decided was a threat to national security. The White House has stated unequivocally that an American citizen can be liquidated any place and any time based on an arbitrary judgment made by unidentified persons using unidentified criteria that such an individual posed some manner of threat to Americans anywhere in the world at any time now or in the future.

The profound implications of this policy are in no way affected by Mr. Awlaki’s words, actions or affiliations. Whatever magnitude of threat he represented* that should not short circuit the legal safeguards that historically have distinguished America as the cynosure of civil liberties secured against the abuse of arbitrary state power. Nor should the psychological need for a diabolical personality who embodies “the worst terrorist threat out there” deprive us of our ethical bearings. That ultimately is what this is about.

A successor to Awlaki will soon be found to fulfill Americans’ emotional needs, the calculated electoral needs of politicians and to benefit the public-private partnership that is the terrorism industry. The Haqqanis already have passed their audition. Necessity is the mother of invention.

*That is debatable since his only ‘terrorist’ action was to send one callow, poorly trained Nigerian with a Rube Goldberg explosive device defeated by his flammable underpants. If indeed that is the worst threat we face, then we should thank our lucky stars rather than alternate between fearfulness and exuberant celebration of inflated triumphs.