THE WORLD WOULD BE A BETTER PLACE — and the United States a safer one — if notorious terror-imam Anwar al-Awlaki were removed from it.
Anwar al-Awlaki is an American citizen-born in New Mexico-and a committed jihadist. He is reportedly in Yemen.
Though the details of Awlaki’s involvement have not been made public, it was he who corresponded with the perpetrators of-and possibly helped plan-three terrorist attacks. The alleged Fort Hood mass murderer, Major Nidal Hasan, e-mailed extensively with Awlaki before the massacre. Awlaki was also corresponding with failed Times Square bomber Faisal Shahzad and unsuccessful underwear bomber Umar Abdulmutallab. Awlaki has reportedly referred to Hasan and Abdulmutallab as his “students.”
Shahzad said he was “inspired by Awlaki.” Abdulmutallab admitted being trained by al Qaeda and meeting with some al Qaeda leaders, including Awlaki.
Last, and not least, Awlaki has been linked to the 9/11 attacks. Several of the hijackers at-tended his sermons in 2001, and the telephone number of his mosque was reportedly found in an apartment in Germany used by one of the hijackers.
Last September, Jonathan Evans-head of Britain’s MI5 domestic security agency-labeled Awlaki “public enemy number 1.”
Awlaki has been named a “specially designated global terrorist” under Executive Order 13224, freezing his funds. And the Obama administration reportedly ordered that Awlaki’s name be added to a CIA “capture or kill” list.
Which should have ended the matter, but this is modern America, which means that the question — even in time of war — is now a question for the courts. Awlaki’s father brought suit — about which more later — to set aside the order.
Can a president order the assassination of an American citizen? The answer is “maybe.” It depends on where the president’s constitutional powers as commander in chief begin and end. And it further depends on where and when it’s done and who does it. Though the federal courts, under the “non-justiciability” doctrine (as we’ll see below), should not decide the issue, it’s entirely possible that an activist federal court will intervene to do just that.
But there is a curious dichotomy in the Obama policy: if there are so many reasons to protect the rights of foreign-born terrorists, why doesn’t that effort extend itself to Americans such as Awlaki?
SINCE THE OBAMA ADMINISTRATION’S first days, it has been working tirelessly to afford terrorist prisoners all the rights preserved for American citizens under the Constitution. Almost simultaneously with his inauguration, Obama and his team removed the supervision of terrorist interrogations from the CIA’s authority and brought it into the White House, and ended use of the entirely legal “enhanced interrogation techniques” that were the means by which intelligence information was obtained from terrorist detainees during the Bush years. (Former CIA director George Tenet wrote in his memoir that these interrogations produced more valuable intelligence information than everything else done by the CIA and FBI.)
Not content with the military commission system created by President Bush (and later recreated by Congress after years of litigation culminating in a Supreme Court decision that confirmed the propriety of a military commission system), the Obama administration has been working tirelessly to either release inmates of the Guantanamo Bay, Cuba terrorist detention facility or move those who aren’t released to a prison in the United States. It has brought one such terrorist to the United States for trial and — despite congressional bans — Attorney General Eric Holder still lobbies to bring more here for that purpose.
It has even redefined “enemy combatants” to the euphemistic “unprivileged enemy belligerents” in an effort to leave no privilege behind.
The terrorists’ “rights,” as the Obama theory goes, have to be protected if America is to recover the good graces of the nations of the Islamic world. Heaven forbid that we be perceived to be acting as if we were an Arab (or Persian) nation.
The Obama administration has been inarticulate in explaining its policy, but it is faithful to it. In his bumbling November 2009 testimony before the Senate Judiciary Committee, Attorney General Holder assured the committee that reading Miranda rights to Osama bin Laden wouldn’t be necessary because he’d not likely be captured alive. Holder also said that there’s no worry about reading Osama his Miranda rights because the evidence against him is so overwhelming.
But the policy dedicated to protecting terrorists’ rights is not theoretical. That’s why underwear bomber Abdulmutallab was read his Miranda rights by FBI agents after only 50 minutes of ques-tioning, at which point he clammed up. The intelligence community was aghast: if Abdulmutallab had been transferred to Guantanamo Bay — which he could have and should have been as an “unprivileged enemy belligerent” — he could have been questioned by intelligence experts and information obtained which might have enabled the capture or elimination of his terrorist bosses.
Obama’s policy — and his campaign promise to close the terrorist detention facility at Guantanamo Bay — has also led to the release of too many dangerous terrorists who have gone back into the fight.
According to a report by the Director of National Intelligence, as of October 1, 2010, some 598 inmates have been released. Of that number 81 are confirmed to have reengaged in terrorism and 69 more are suspected of having done so, totaling about 25 percent of those released. Of these, 13 have been killed, 54 recaptured, and 83 are at large.
But what about that reported CIA “capture or kill” list? Is it within the power of the president to order the assassination of an American citizen?
THREE U.S. PRESIDENTS-Gerald Ford, Ronald Reagan, and Jimmy Carter-have banned as-sassination by our government. The best known ban, in Reagan’s Executive Order 12333, says, “No person employed by or acting in behalf of the United States government shall engage in, or conspire to engage in, assassination,” and goes on to include a ban on intelligence agencies’ indirect participation.
What one president can order a successor can change. Obama may have issued a secret order setting the assassination ban aside for Awlaki or for a whole class of terrorists. But the White House hasn’t indicated whether the prior executive orders have been changed or if they’re just being ignored.
Those executive orders were devised in the Cold War era, when adversary nations confronted each other by what we thought of as conventional means: glaring across international boundaries, subversion by military and economic means, and by espionage.
In that era, the “battlefield” was confined. Today, when terrorists operate covertly in any number of nations, the battlefield is wherever a terrorist may be able to act, whether it is on an airliner or walking the streets of a Western nation. Today’s “battlefield” extends everywhere: wherever a terrorist can conspire with others — especially the Internet — is as much a locus of the war as were the poppy fields of Verdun in 1916.
In Iraq, Afghanistan, Yemen, and other places, U.S. drones target terrorists for extermination. U.S. special forces raids — in those nations and probably others we don’t know about — have killed hundreds of al Qaeda and Taliban fighters in attacks that are properly a part of the war. But if the battlefield is everywhere, why should we not mount such attacks wherever we find the terrorists, be it in a cave in Afghanistan or walking the streets of London?
The CIA has what its congressional overseers call “lethal authorities.” And there is a “national security determination” process by which the president can use these authorities covertly. Soon after we went into Afghanistan in 2001, the CIA was given authority to use its own force of drones to conduct surveillance against terrorists and to use the drones — newly equipped with weapons such as the “Hellfire” missile-to kill terrorists they found.
We don’t know how far these lethal authorities go. But the CIA’s authorities are legislatively created and can be revised, if not easily at least possibly. But the president’s powers are constitutional. How far do they extend, and can the courts control them?
The Fifth Amendment provides that no person can be deprived of life, liberty, or property without due process of law. Some analysts point to the fact that the Authorization of Military Force (the oft-forgotten “AUMF,” Public Law 107-40)-passed soon after 9/11-authorizes the president to use military force against the people, organizations, and nations that planned, committed, or aided in the 9/11 attacks in order to prevent any future terrorist attacks against the United States.
But that doesn’t remotely resolve the Awlaki question. Has anyone seen his al Qaeda membership card or heard him renounce his citizenship? A person doesn’t lose his rights as an American citizen merely by traveling abroad, but what he does abroad is the key.
THERE ARE — under the Immigration and Naturalization Act — certain limited conditions under which a person is deemed to have given up his citizenship. If an American — with the intent of renouncing his U.S. citizenship — joins the military of another country if that country is engaged in hostilities with the United States or serves as a commissioned or non-commissioned officer in a foreign military, that person loses his citizenship.
But that law is written for an era that passed away on 9/11. We are not living in the world that saw the armies of belligerent Westphalian states squared off on the battlefields of Belgium and France. Nations that sponsor terrorist groups conduct their wars with us by proxy. And when an American joins a terrorist group, he may not intend to give up his U.S. citizenship.
Awlaki is believed to be a member of al Qaeda in the Arabian Peninsula (“AQAP”). Other Americans have declared themselves to be members of al Qaeda, such as their American spokesman, Adam Gadahn. Gadahn has been indicted for giving material support to al Qaeda and a $1 million reward for information leading to his arrest has been offered. But Gadahn is just a mouthpiece: Awlaki is believed to be an al Qaeda operational planner. That difference justifies the fact that Awlaki is targeted for lethal measures.
The Immigration and Naturalization Act needs to be brought up to date. Whether or not someone intends to renounce his citizenship, anyone who acts in concert with a Foreign Terrorist Organization as that term is defined by law should be deemed to have intentionally renounced his citizenship. Were that amendment accomplished, the ability of an American terrorist such as Aw-laki to challenge an order to kill him in U.S. courts would vanish.
Meanwhile, it is entirely conceivable that a court could determine that before Awlaki is tar-geted for assassination, the government would have to get a court to hold that he has forfeited his citizenship.
In early December, U.S. District Court judge John Bates dismissed the case brought by Aw-laki’s father to have the “capture or kill order” set aside. Bates wrote that the court “lacks the capacity to determine whether a specific individual in hiding overseas, whom the Director of National Intelligence has stated is an ‘operational’ member of [al Qaeda in the Arabian Peninsula], presents such a threat to national security that the United States may authorize the use of lethal force against him.”
Going further, Bates wrote that there were several unique questions raised by the case. “Can a U.S. citizen-himself or through another-use the U.S. judicial system to vindicate his constitu-tional rights while simultaneously evading U.S. law enforcement authorities, calling for ‘jihad against the West,’ and engaging in operational planning for an organization that has already car-ried out numerous terrorist attacks against the United States?”
Bates left undecided the issue of whether the executive can “…order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization.”
Calling the case both “unique and extraordinary,” Bates dismissed the complaint on proce-dural grounds. His decision rested on whether Awlaki’s father had the ability to bring the suit and whether a federal court could review the alleged targeted-killing program. At this point, Bates ruled, the answer to both of those questions was “no.”
BATES’S RULING IS right on target, and on the law unquestionable. But it leaves unanswered all the questions that have been posed.
As I wrote on September 12, 2001, in the Washington Times, the U.S. courts are not instruments of national security. Judge Bates, at least, seems to understand that.
Bates’s first determination-that the court lacks the capacity to determine the question — is in deference to the “non-justiciability” doctrine. As the invaluable Heritage Foundation’s Guide to the Constitution explains it, “even if a federal court possesses Article III jurisdiction over a case, it will decline to issue a decision if the underlying question presented is ‘political’ in the sense of being entrusted by the Constitution exclusively to the President or Congress. Long-recognized examples of such political questions include the conduct of war and foreign affairs…”
But Bates’s ruling doesn’t forestall another judge from holding that any order to assassinate an American citizen has to be authorized by a court. So what should be done?
Terrorists and the nations that sponsor them are waging an unlimited war against us. We can — and must — wage the same kind of war against them, but we must not sacrifice the Constitution on the altar of unlimited war.
To wage such a war, the president should ask Congress to amend the Immigration and Natu-ralization Act to deprive terrorists of their citizenship. And, announcing his action in a major speech, the president should rewrite Executive Order 12333 to permit the assassination of any member of a Foreign Terrorist Organization whom the president designates-secretly-as a clear and present danger. That would accomplish the objective: the intelligence agencies, in secret presidential determinations shared with a limited number of the intelligence community’s congres-sional overseers, would be specifically licensed to kill the designated terrorists.
Terrorists — whatever their nationality — should not be able to hide behind their citizenship or American law to save them from the fates they have earned by their actions.
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