The Legality of Killing Anwar al-Awlaki

Anwar al-Awlaki, the “Bin Laden of the Internet”, was killed yesterday, just five months after Bin Laden was killed by the same force – CIA drones. The Washington Post writes this morning, “a radical U.S.-born Muslim cleric and one of the most influential al-Qaeda leaders wanted by the United States, was killed Friday in a U.S. drone strike in northern Yemen, Yemeni and American authorities said, eliminating a prominent terrorist recruiter who inspired attacks on U.S. soil.” Good. No one will miss him.

I fully welcome the death of such a terrorist and vulgar hatemonger. Many politicians agree.

Rep. Peter T. King (R-N.Y.), chairman of the House Committee on Homeland Security, called the killing of Aulaqi “a great success in our fight against al-Qaeda and its affiliates,” as well as a “tremendous tribute to President Obama and the men and women of our intelligence community.”

In a statement Friday, King added: “For the past several years, [Aulaqi] has been more dangerous even than Osama bin Laden had been. . . . Despite this vital development today, we must remain as vigilant as ever, knowing that there are more Islamic terrorists who will gladly step forward to backfill this dangerous killer.”

Not all agreed.

But Rep. Ron Paul (R-Tex.), a contender for the GOP presidential nomination, called the killing an “assassination” of an American citizen without trial.

The Council on American-Islamic Relations, a Muslim civil rights and advocacy group, also expressed reservations.

“As we have stated repeatedly in the past, the American Muslim community firmly repudiated Anwar al-Awlaki’s incitement to violence, which occurred after he left the United States,” it said in a statement. “While a voice of hate has been eliminated, we urge our nation’s leaders to address the constitutional issues raised by the assassination of American citizens without due process of law.”

Rep. Paul and CAIR have an interesting, if not valid, point. (Why CAIR is concerned about these specific constitutional issues and not American-Islamic relations for law-abiding, non-terrorist Muslims is another story.) Al-Awlaki, as vile as he was, was a US citizen who was given no constitutional protections.

That hardly seems constitutional. He was convicted of no crimes, only accused. He was not granted an attorney, given the chance to submit or challenge witnesses or evidence, or in any way to make a case for his innocence in front of a judge and an impartial jury. Troy Davis was given all of those protections and several appeals before he was finally executed last week, and yet there were massive protests decrying the illegality, immorality, unconstitutionality, racism, inequity… Surely the same logic applies to this case of “assassination.”

In the case of Bin Laden, we additionally have internationally recognized military actions in Afghanistan. There were legal concerns with a strike in Pakistan because it is a sovereign nation. Yemen is also a sovereign nation, but we have no internationally recognized military actions, nor has our government declared war as in Afghanistan. (I should say that the legal concerns for this point concern me very little, but they concern progressives and the Left. It will be interesting to see how it plays out with them and with Obama’s supporters.)

Troy Davis was also executed as an individual that day. Al-Awlaki was one of several.

The strike also killed a second U.S. citizen — Samir Khan, the co-editor of an al-Qaeda magazine — and two other unidentified al-Qaeda operatives, the Yemeni government said. But tribal leaders in the area said at least seven people were killed. They identified one of the others as al-Qaeda militant named Salem bin Arfaaj.

So where to stand on this? I support such drone attacks, as it is often necessary to strike targets that have taken sanctuary across borders. All of these drone attacks are in countries whose governments lack the control or desire necessary for counterterrorism – Yemen lacks the control, Pakistan lacks the desire. We would never think of a drone attack in France or Chile. In my opinion, al-Awlaki waived his rights when he left the US and publicly spent his time recruiting others to kill Americans. An incitement to violence in the US warrants a prison sentence. An incitement to terrorism against the US warrants a drone strike. If he was concerned for his safety, he could have returned to the US and been granted full legal protection during his trial. He chose otherwise. He chose to be an operational leader of an al-Qaeda affiliate, and a target during war.

It will be interesting to see how the Left settles on this issue. In favor of Obama and further attacks on al-Qaeda, or in opposition to continued bombings (of US citizens) in nations with which we are not at war?

*****

Most of this post was written this morning. As I check for updates, several sources are addressing the legality of the attack. Jack L. Goldsmith makes a well-constructed argument in the NYT.

Al Qaeda and I Finally Agree

Poor Mahmoud! He can’t seem to get the support of anyone these days. First, the delegates from more than 30 countries walked out during his address to United Nations General Assembly last week. Now the BBC reports that:

Al-Qaeda has accused Iranian President Mahmoud Ahmadinejad of spreading “conspiracy theories” about the 9/11 attacks in 2001.

Inspire, an al-Qaeda-linked online magazine, described Mr Ahmadinejad’s controversial speech to the United Nations last week as “ridiculous”.

The Iranian leader said he believed the World Trade Center towers could not have been brought down by aircraft.

The article said such a belief “stands in the face of all logic and evidence”.

Dick Cheney vs. Joshua Rovner and Austin Long

Dick Cheney:

In my view, the most important lesson to be learned from the Soviet experience in Afghanistan in the 1980s is what happened after the Soviets left. The United States turned its attentions elsewhere, and Afghanistan descended into civil war. The resultant instability and eventual takeover of the country by the Taliban meant that Osama bin Laden and his al Qaeda terrorists were able to find a safe haven there. Throughout the late 1990s, thousands of terrorists were trained in al Qaeda camps in Afghanistan, and it became the base for the attacks of 9/11. When I hear policy-makers talk about walking away from Afghanistan, I want to remind them of what the consequences can be.

(From In My Time, p. 347.)

Not so, say Joshua Rovner and Austin Long in a CATO Institute Foreign Policy Briefing.

They point out that both the Bush and Obama administrations have argued that state-building and counterterrorism are inseparable. Obama’s national security strategy states that, “In Afghanistan, we must deny al Qaeda a safe haven, deny the Taliban the ability to overthrow the government, and strengthen the capacity of Afghanistan’s security forces and government so that they can take lead responsibility for Afghanistan’s future.”

First of all, that argument is not even practical. Rovner and Long explain:

Unfortunately, the necessary ingredients for successful state building—time, money, and existing institutions—are in desperately short supply in Afghanistan. Public and congressional opposition to the war is rising in the United States, and the Obama administration has already announced it will scale back the U.S. commitment beginning next year. In addition, Afghanistan’s political and economic institutions are extremely weak. The fledgling government has had enormous difficulty expanding control outside of Kabul. The judiciary, which is notoriously inefficient, competes in many places with a shadow Taliban court system. Economic institutions remain fragile at best; witness the recent run on the Kabul Bank. For all of these reasons, the U.S. desire to build a strong and legitimate government in Afghanistan is not practical.

“The good news,” they explain, “is that it is not necessary.”

A state-building failure would not mean victory for al Qaeda or the Taliban. Even if the United States substantially reduces its ground forces in Afghanistan and the Kabul government remains weak and ineffectual, al Qaeda would not be able to recreate anything like the safe haven it once enjoyed. The original circumstances that made sanctuary possible no longer exist today.

Why? First of all, if the Taliban were to regain control over parts of Afghanistan, there are significant costs to pay (i.e. airstrikes), which they know well. There would be little hesitation from either American political party about using air assets for such operations. It is much more likely that al Qaeda will have to remain in hiding for the foreseeable future. This was proven in the Korengal Valley in 2010, when al Qaeda attempted to reestablish itself in an area that coalition forces had left, only to be greeted by U.S. aircraft informed by Afghan sources on the ground.

Second, the Afghan Taliban have some support from the Pakistani ISI. Al Qaeda does as well, but they will most likely elect to just stay in their current sanctuary. Pakistani militants, an enemy of the Pakistani government, do not have such support from the ISI. The Afghan Taliban would not risk their ISI support by extending a welcome to Pakistani militants if the Taliban were to return to Afghanistan.

Thus, if the Taliban return to Afghanistan, they have no incentive to welcome neither al Qaeda nor Pakistani militants. If they welcome the former, the U.S. will certainly retaliate. If they welcome the latter, no one will stop Pakistan from attacking.

As Rovner and Long conclude:

The upshot of this analysis is that state building is not necessary to succeed in Afghanistan. The decline of the central state will not lead to a domino effect in the region. Al Qaeda will not be able to recreate its old safe haven there even if the government collapses. Pakistani militants will not find reliable sanctuary either, regardless of what happens in Kabul. Rather than investing heavily in state building, the United States can achieve its interests by streamlining its counterterrorism campaign. It does not need to become mired in the bloody business of Afghanistan’s political evolution.