Posted on Thu, Oct. 06, 2011
last updated: September 30, 2011 09:08:48 PM
WASHINGTON — Lawyers signed off on the targeted killing of Anwar al Awlaki, the radical U.S.-born Muslim cleric whose violent death provokes fresh questions about right and wrong in wartime.
Rules, after all, still apply even when the missiles start flying.
The Obama administration considers Awlaki's killing the justified elimination of a proven national security threat. Critics, including Republican presidential candidate Rep. Ron Paul of Texas, called it on Friday an unlawful "assassination."
This is one legal dispute judges won't solve.
"There are circumstances in which the (president's) unilateral decision to kill a U.S. citizen overseas is constitutionally committed to the political branches and judicially unreviewable," U.S. District Judge John Bates concluded last year.
In his 83-page decision last December, Bates dismissed an effort by Awlaki's father and civil liberties groups to block, in essence, Awlaki's execution. While acknowledging many "stark and perplexing questions," Bates said he lacked the authority to get involved.
The same advocates who challenged Awlaki's lethal targeting then are now seeking through the Freedom of Information Act the specific documents and in-house legal opinions the Obama administration used to justify the alleged hit lists.
"The legality of the targeted killing program is a concern, whether or not the target is an American citizen," Hina Shamsi, the director of the American Civil Liberties Union's national security project, said in an interview Friday, "but with an American, there are additional due process concerns."
An American overseas, for instance, can't be wiretapped without a warrant approved by a U.S. judge. No such warrant is needed to eavesdrop on a foreigner.
On Friday, exemplifying the administration's secrecy, White House spokesman Jay Carney said that "we're not going to address circumstances of (Awlaki's) death."
But through congressional hearings, legal briefs and other documents, some glimmers reveal how much Obama has come to rely on the war-fighting reasoning previously articulated by the Bush administration.
Broadly speaking, the administration claims the nation's inherent right of self-defense recognized under international law. International law, though, also imposes limits: Targeted killing is banned except to protect against "concrete, specific and imminent" danger.
More specifically, the Obama administration finds justification through the two-page Authorization for Use of Military Force introduced on Sept. 14, 2001, and signed by President George W. Bush four days later.
The bill authorized action against those who "planned, authorized, committed or aided the (9/11) terrorist attacks." A decade later, the Obama administration contends that this wartime authority remains even if it's evolved for reasons the administration won't fully elucidate.
"The (president's) judgment as to whether force is authorized against (al Qaida) or any other organization is informed by changing circumstances and sensitive intelligence that cannot be disclosed" in court, Assistant Attorney General Tony West argued in an October 2010 legal filing.
Awlaki's U.S. citizenship complicates things, at least a little.
Awlaki spent his first seven years in the United States, before his family moved back to Yemen. He returned in 1991 to attend Colorado State University, and went on to earn a master's degree at San Diego State University. He married and had three children in the United States before leaving the country in 2003.
The Obama administration maintains that none of this matters as long as the proper secret procedures are followed in authorizing his death.
"We take direct actions against terrorists in the intelligence community," then-Director of National Intelligence Dennis Blair advised lawmakers last year. "If we think that direct action will involve killing an American, we get specific permission to do that."
Blair's public testimony before the House Permanent Select Committee on Intelligence in February 2010 amounted to the first confirmation that the Obama administration had procedures in place to lethally target Americans. The officials can cite, in part, a 1942 Supreme Court case in which justices reasoned that the U.S. citizenship of an enemy belligerent "does not relieve him from the consequences" of war.
"In this instance," Charlie Dunlap, a Duke University Law School visiting professor, said Friday, "that consequence is being targeted like any other enemy."
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