The Killing of Anwar al-Awlaki

I've posted a comments page on Off Times Square on the Killing of Anwar al-Awlaki.

A reader wrote today to ask my opinion on the Administration's legal justification for the targeting & killing of Anwar al-Awlaki, an American citizen. Charlie Savage of the New York Times reported yesterday on "a secret legal memorandum" that concluded the killing of Awlaki would "be lawful if it were not feasible to take him alive." I linked the story yesterday; it's here. Here is a slightly edited version of my answer to the reader. Also, do read Glenn Greenwald, linked below.

There are several ways to look at this issue, but I think it’s essential to try to separate the moral/ethical implications from the legal “justification.”

Lawyers can justify almost any action. It’s what they’re paid to do. On this, see Glenn Greenwald, who lays out at some length why the “justification” to kill Awlaki was bogus. But in reading Greenwald, it’s also a good idea to bear in mind that Greenwald’s position is a pretty easy one to make. Greenwald -- who is a lawyer -- says you can’t kill a U.S. citizen without due process because the Constitution (and some other legal principles) says you can’t. For Greenwald, that’s the end of the story. As I said, an easy call.

Also, as Greenwald notes, months before the date of the “justification” memo, the media were reporting that there was a kill order on Awlaki. I don’t know if the media got that right, but if they did, then the “justification” followed the decision to kill him. The lawyers, just as usually happens in a trial, were making their case after the fact.

Another thing to bear in mind, & something Greenwald also points out, is that we don’t really know what the 50-page memo said. Greenwald implies Savage had only one source; I think Savage makes clear he had more than one source. But Greenwald’s point is well-taken – all we get from Savage’s report is the Administration’s gloss on the memo. Savage’s sources are telling him what they want him to hear. A 50-page memo obviously contains some nuance, and the Administration has not released the nuance. It’s secret. So we only know what officials in the Obama Administration want us to know.

Another point: Savage reports that the memo does not address the quality or quantity of evidence against Awlaki. The implication then is that the memo reads, “If you have evidence that Awlaki has done all this bad stuff & that he cannot reasonably be captured & is unwilling to turn himself over to U.S. authorities, then you can kill him for these reasons: blah blah blah.” That means to actually justify the killing of Awlaki, the Administration would have to have acquired some pretty good “slam dunk” evidence against him. Presumably, the bulk of whatever evidence the Administration had came from the CIA. And you know how slam-dunky the CIA has been.

I respect the civil libertarian POV that the U.S. just can’t go around killing American citizens if they have not received due process in accordance with the Constitution & U.S. laws.

BUT. I think there are exceptions.

First, on the legal issue, something Greenwald doesn’t mention -- and he wouldn’t because it undermines his argument -- this is a case of the Constitution being in conflict with itself. As Justice David Souter outlined in his Harvard commencement address last year, "The explicit terms of the Constitution ... can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises.” (The text is here & is worth reading. I've appended the video of Souter's speech below.) The President takes an oath to uphold the Constitution, & one of his duties as “Commander in Chief of the Army & the Navy” (Article II) is spelled out in the preamble: to “provide for the common defence” of the nation. I don’t think there’s any question but that providing for the common defense may occasionally put a Commander in Chief in conflict with the Bill of Rights or with other provisions of the Constitution. (Ask Abe Lincoln about suspending habeas corpus & about closing down newspapers that opposed the war!) You might argue that Obama should have marched his case over to the Supremes for their input on the constitutionality of targeting Awlaki, but I’m not sure I’d want to leave the defense of the nation to Nino Scalia.

As a moral issue -- as opposed to a legal one -- I don’t think it matters a whit what nationality Awlaki was. If I murdered my neighbor who is Brazilian, I’m just as guilty of murder as if I had murdered his wife who is American. I don’t get some moral free pass because the guy “isn’t even an American!” Murder is murder.

At the same time, there are “legal” killings that are immoral. I would argue, for instance, that the execution of Troy Davis – though entirely legal – was immoral. After his trial, enough reasonable doubt surfaced to suggest that, if we had a system that allowed a do-over (as does, say, Italy), there was clearly enough evidence to raise reasonable doubt of Davis’s guilt. I have no idea if Davis was or was not guilty of murder. I do have an idea that he could not be found guilty beyond a reasonable doubt.

As I argued in a comment in Off Times Square, not all Americans get due process. Nearly once a week, you hear of some American (on American soil) who is suspected of a heinous crime – usually but not always murder – being killed by police. Unless there is some special circumstance – like racism – usually not much of a fuss is raised about the shooting of the suspect. So quite a few Americans suspected of crimes do not get anything approaching due process. They just get shot dead.

Based on what I’ve read in the media, I think it’s pretty certain that Awlaki fomented violence against Americans. Whether he was also involved in planning & carrying out violence against Americans, I don’t know. I have only the government’s claim on that.

I also know that Awlaki did not turn himself over to U.S. authorities. Given the way the U.S. has treated enemy combatants, & given his views, this is hardly surprising. But it was an option he had, if not such a great one. He chose not to surrender.

He also put himself in a situation in which he made his capture more than a little difficult.

As I mentioned earlier, the media widely reported that there was a kill order out on Awlaki. Therefore, it is reasonable to assume that Awlaki knew he was a target and had time to think about how to deal with that.

So I equate Awlaki with the local murder suspect who knows the police are after him but who resists arrest & gets shot dead. The authorities may or may not have good evidence – evidence that would stand up in court – against Awlaki & the local suspect. But Awlaki & the suspect made essentially the same choice. They decided not to surrender; that is, not to have their days in court.

Therefore, I think that if the evidence against Awlaki was accurate – or even if the Administration merely believed the evidence that he was planning terrorist attacks against Americans – then his killing was morally justified. Tying a legal justification to his killing is a nicety, but it doesn’t carry a great deal of weight with me.

What I think civil libertarians like Greenwald fail to take into account is that Awlaki, too, was an actor in this drama, not just a bystander. He made decisions that put him in danger of being targeted and killed. These decisions were not just the ones he made after he was targeted – they include his decision to advocate for, and probably participate in, violence against Americans. There is no way to know whether the killing of Awlaki saved American lives or if his killing will instead only embolden anti-American sentiments. But I do think the Administration made a reasonable call, given what it knew. Time will tell. Or rather, may tell.

As I said, my position – and for that matter, the President’s -- is harder to make than Greenwald’s. Lines in the sand are easy to draw. Nuance is not so neat. And because it’s so messy, it’s easy to err or one side or the other. But sometimes it’s a mistake to be so sure of yourself. I think Greenwald makes that mistake quite often. There’s a good chance this is one of those times.

Here's Souter on the Constitution. He begins speaking at about 4:00 minutes in: