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Another One Bites the Dust

Another One Bites the DustThe Obama Administration checked another high profile terror suspect off its’ list today. A senior Administration official reports that a U.S. drone strike in Yemen killed Anwar al-Awlaki, a U.S. born cleric that allegely sought to inspire “lone – wolf” jihadists in the Western world. Security officials argue that Al-Awlaki was the inspiration behind the Ft. Hood attacks, as well as the the underwear bomber’s foiled Christmas day attack in 2009. The attack in Yemen also killed another suspected terrorist name Sami Khan, who was an editor of “Inspire,” an English language magazine published by al-Qaeda.

Like the operation that killed Bin Laden, many will claim the strike was a victory for U.S. national security. And similar to the raid on Bin Laden’s compound, this strike raises interesting, albeit different and more troubling issues for the rule of law. Below is a rough and dirty analysis of the operation, based on initial reports and my graduate coursework on international and U.S. national security law.

Did the attack violate Yemen’s sovereignty? No. Yemen and the U.S. have a cooperative security relationship. Last year, Yemen invited a U.S. security presence into the country to fight terrorists, and has not protested against drone attacks. Yemen seems to have tacitly consented to U.S. strikes.

Did the attack violate international human rights or humanitarian law? It depends, but I don’t think so. Some legal scholars believe that U.S. drone strikes must comply with human rights law in Yemen or Somalia, because these locations are simply too remote to qualify as part of the U.S. war against al-Qaeda. Those that believe human rights law governs attacks in these countries will suggest the strike against al-Awlaki violated human rights law, because the cleric wasn’t an imminent threat at the time he was killed.

However, others believe that the conflict follows the actors, and thus international humanitarian law governs the use of force against al-Qaeda figures in Yemen or Somalia. This is a difficult and unresolved issue. But, I believe that humanitarian law, or the law of war, is the applicable legal model in this situation. Based on initial reports, the strike appears to be consistent with international humanitarian law, because the attacks seems to have been discriminate and proportionate.

Did the attack violate U.S. constitutional law? I believe so. The protection and rights granted by the U.S. Constitution apply to U.S. citizens, wherever they may be. Anwar al-Awlaki was a dual citizen of the U.S. and Yemen, and thus was owed the right to due process by a U.S. judiciary. While the Obama Administration will undoubtedly claim that al-Awlaki was a bona – fide terrorist, the information available suggests his actual role in planning or directing specific attacks is somewhat unclear.

In Hamdan, the Supreme Court made clear that U.S. citizens suspected of engaging in terrorist acts against America deserve some sort of due process upon capture. The same analysis must apply for the use of lethal force against U.S. citizens. Indeed, constitutional law prohibits the use of lethal force against U.S. citizens unless they present an imminent threat to U.S. security or the broader public. The use of deadly force against an American posing no imminent threat and before an independent judiciary has examined the evidence is a manifest violation of the right to due process.

It seems likely that Al Awlaki committed treason against the United States, but that case needs to be made before a court. At the very least, an impartial judiciary should have examined the evidence the Administration relied on to determine that al-Awlaki played a direct role in planning or carrying out terrorist attacks. The fact that the Administration explicitly and brazenly affirmed its right to kill al-Awlaki without any sort of judicial review should be disturbing to all Americans.

I am curious to hear other thoughts on the strike against al-Awlaki.

 

Author

Trevor Keck

Trevor Keck is currently a fellow with the Campaign for Innocent Victims in Conflict (CIVIC) based in Kabul, Afghanistan, where he is researching civilian casualty issues, and advocating for policies that will better protect civilians from the conflict in Afghanistan. Trevor holds a graduate degree from the Fletcher School of Law and Diplomacy, at Tufts University, where he concentrated in international security and public international law, and BA in peace and conflict studies from Chapman University. Trevor's writings on this blog may or may not reflect the views of CIVIC.

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