Tag: assassination

Four Thoughts on the Anwar Al-Awlaki Assassination

As Bob Levy has already ably probed the legal issues surrounding the killing of Anwar al-Awlaki, I’ll just append a few miscellaneous thoughts.

First, over the last decade we have been repeatedly told by foreign policy hawks that it is foolish, and even borderline offensive, to suggest that aggressive U.S. action abroad may have the counterproductive and unintended consequence of swelling the ranks of terror groups. When evaluating the wisdom of drone strikes or invasions of other countries, we need not even factor in the downside risk of “blowback” stemming from such actions, because “they hate us for our freedoms.” In other words, radical Islamist terrorists are fundamentally motivated by a vision of a global caliphate, not by any grievances stemming from real or perceived injuries inflicted by U.S. policy. I think of this as the “No Marginal Terrorist” Theory, because it posits that people are motivated to join terror groups strictly for reasons connected with either personal psychology or theology, such that reactions to specific U.S. actions never make the difference at the margin.

At the same time—and often by the same people—we are told that Anwar al-Awlaki posed a grave threat to the United States, not so much because of any particular logistical genius he possessed, but because he was so dangerously effective as a recruiter and propagandist who could inspire people already living in the West to jihad. Surely, then, it’s relevant to inquire into the nature of this lethally effective propaganda. Here is an excerpt from what The Guardian calls one of ”his most direct, English-language statements endorsing terror attacks on Americans”:

With the American invasion of Iraq and continued U.S. aggression against Muslims, I could not reconcile between living in the U.S. and being a Muslim, and I eventually came to the conclusion that jihad against America is binding upon myself just as it is binding on every other Muslim….

To the Muslims in America, I have this to say: How can your conscience allow you to live in peaceful coexistence with a nation that is responsible for the tyranny and crimes committed against your own brothers and sisters?

Possibly al-Awlaki is just a sort of Salafist James Earl Jones, and the sheer hypnotic beauty of his voice is what compels people to sacrifice their lives for him, without regard to the specific contents of his sermons. Still, it seems to be a problem for the No Marginal Terrorist Theory if a propagandist who was believed to be uniquely effective at motivating people to become terrorists used rhetoric like this to do it.

Second, a good deal of the coverage I’ve been seeing has treated the conclusions of U.S. intelligence analysts about al-Awlaki’s role and status within al Qaeda in the Arabian Peninsula (AQAP) as ironclad facts rather than contestable inferences from necessarily patchy data—even though the past decade should have made it abundantly clear that analysts sometimes get it wrong. Certainly al-Awlaki is no “innocent” in any sense of the word, but on the crucial claim that he’d progressed from terrorist mascot to mastermind, it’s worth noticing how much of the case depends on plots that the cleric was “linked to” or “believed to have had a hand in planning.” At least one Yemen expert has argued that al-Awlaki’s status within AQAP has been wildly inflated, describing him as a “midlevel religious functionary.”

While there is some public evidence that certainly seems to support the conclusion that al-Awlaki had gone “operational”—that he did not merely advocate jihad in principle, but played a key role in planning and directing terrorist acts—the bulk of it remains classified. As we learned to our great cost after the invasion of Iraq, a top secret clearance does not actually grant omniscience, and sometimes a case that seems like a slam-dunk on the surface falls apart under impartial scrutiny. Paradoxically, the administration’s refusal to submit to that scrutiny seems to have given its determinations an aura of oracular certainty.

Third, the case for targeted killing here relies very heavily on the fact that al-Awlaki had put himself beyond the reach of feasible arrest. The most ardent hawk would recoil at the prospect of simply dropping a bomb on a citizen suspected of al Qaeda ties in New Jersey, or London. But as Robert Farley notes, what is “feasible” is at least in part a matter of judgments about the risks and benefits of attempting a capture. So we’re required to entrust to the executive branch to determine not just when a particular citizen has joined the enemy, but under what conditions it’s worth the risk of attempting to take them alive.

In al-Awlaki’s case, one can at least say—as the judge who rejected a lawsuit brought by his father did—that the target was plainly aware the government was after him, and in theory could have offered to surrender himself if he’d been interested in seeking his day in court. (I stress “in theory” because it’s hard to imagine AQAP looking favorably on such a decision in the wildly improbable event al-Awlaki had been inclined to make it.)

But remember that this was supposed to be a wholly covert operation, and would (according to the administration) imperil national security if discussed in any way—even though the national security risk appears to have diminished a great deal now that it’s a matter of taking credit rather than blocking litigation. There was an advance leak in this instance, but the next citizen on the list may have no idea there’s a Hellfire missile with his name on it. What we think about the specific instance of al-Awlaki, then, seems less important than how we feel about a case in which everything goes according to plan. That is, an American citizen is simply killed abroad with no advance warning, on the basis of an executive determination that he has joined an enemy power and poses an imminent threat, and no guarantee that the United States will acknowledge (let alone justify) the operation even after the fact.

Fourth and finally, the debate after the fact has been a reminder of how utterly useless conventional war metaphors are for grappling with the unique problems presented by the present conflict. Anyone who imagines the very thorny issues presented in the current case are somehow illuminated by analogies from World War II is just kidding themselves: if this conflict were not so plainly unlike World War II and other conventional conflicts between nation states, on so many salient dimensions—if we could straightforwardly treat an ever-shifting array of emerging terror groups as equivalent to a sovereign country’s uniformed military—everything would be a good deal simpler.

Awlaki and Due Process

The administration argues that suspected al Qaida terrorists – even U.S. citizens – can be targeted for assassination because they either (a) pose an imminent threat or (b) are part of an enemy army; and (c) other governments are unwilling or unable to act. Although the Fifth Amendment ensures that persons not be denied due process, it’s unclear what process is “due” – especially when the person is a citizen. For example, a U.S. citizen who threatens hostages with imminent loss of life can be killed by law enforcement authorities. Similarly, an American who serves in a foreign army against which the United States is at war is plainly a legitimate target.

Moreover, under the Nationality Act, a citizen can lose his citizenship if he intends to do so (although intent can be inferred by actions) and he either (a) declares allegiance to a foreign state, (b) serves in a post requiring such a declaration, (c) serves in armed forces in combat with the United States, or (d) serves as an officer or NCO in the armed forces of a foreign state.

Still, the killing of Awlaki is a close legal call. On balance, it’s probably unlawful. The imminent-threat contention isn’t credible. To my knowledge, no one has identified a threat that is imminent (meaning: about to happen). The part-of-an-enemy-army claim and the loss-of-citizenship argument raise several questions: First, is the Nationality Act itself constitutional? The Constitution establishes criteria for citizenship. Stripping someone of citizenship effectively changes those criteria, and Congress may not have that power. Second, even if the Nationality Act is constitutional, does al Qaida qualify as a foreign state for purposes of the Act? Are al Qaida agents equivalent to soldiers engaged in combat with the United States? Third, even if the Nationality Act might apply in Awlaki’s case, how do we know that he triggered the provisions of the Act? Can the administration simply assert that he met one of the tests for loss of citizenship, or must there be some threshold process to make that determination?

Finally, the Authorization for the Use of Military Force sanctioned force against those involved in the 9/11 tragedy. Awlaki, although not directly involved, probably qualified as part of an “associated force”; but actions that might self-evidently be lawful if Awlaki were actively fighting on a battlefield are less so when he’s allegedly plotting attacks from Yemen.

All told, when U.S. citizens are targeted, I’d be more comfortable with somewhat more process – not a trial before an Article III court, of course, but perhaps the equivalent of an assassination warrant that required a non-executive-branch body with relevant expertise to certify sufficient cause. Anything less risks disrespect for the Constitution, which could have regrettable implications in other areas. The separation of powers doctrine, if it means anything, stands for the proposition that citizens cannot be killed on command of the executive branch alone, without regard to the Fourth and Fifth Amendments. Naturally, exceptions are justified for truly imminent threats. If I were convinced that involvement of another branch might result in Awlaki-types escaping punishment, I’d be more willing to invoke “emergency” powers – similar to hot pursuit – but not in this case.

Measuring Progress on Violence against Union Members in Colombia

During a recent Congressional hearing on President Obama’s trade agenda, Rep. Sander Levin (D-Mich.) stated his continued objections to the FTA with Colombia:

“Union worker violence in Colombia remains unacceptably high - if not the highest in the world. Limited progress is being made in the investigation and prosecution of those responsible. Additionally, reports indicate that threats against union workers and others have increased, and there has been little concrete action today to pursue these cases.” [Emphasis added].

Levin warned that, despite signs of a more constructive approach to this issue from Colombia’s new president Juan Manuel Santos, “The only adequate measuring stick is progress on the ground.”

Rep. Levin should take a look at the Free Trade Bulletin that my colleague Dan Griswold and I published this week: “Trade Agreement Would Promote U.S. Exports and Colombian Civil Society.” When it comes to progress on the ground regarding violence against union members, Colombia already has a remarkable record. The number of assassinations of trade unionists has dropped 77% since its peak in 2001, compared to the total number of homicides in the country, which declined by 44% in the same period.

 

 

 Sources: National Union School (ENS) and Ministry of Social Protection (MPS).

If we look at the homicide rate as defined by the number of murders per 100,000 inhabitants, the rate for union killings was 5.3 per 100,000 unionists in 2010, six times lower than the homicide rate for the overall population (33.9 per 100,000 inhabitants).

In our paper, we present evidence that shows that union members enjoy greater security than other vulnerable groups of Colombian civil society, such as teachers, councilmen and journalists. Also, we highlight research conducted by economists Daniel Mejía and María José Uribe of the Universidad de los Andes in Colombia, which found no statistical evidence supporting the claim that trade unionists are targeted for their activities. Instead, their results show that “the violence against union members can be explained by the general level of violence and by low levels of economic development.”

As for Rep. Levin’s claim that there has been “little concrete action” to pursue crimes against trade unionists, once again the evidence says otherwise. In 2010 there were over 1,400 trade unionists under a government protection program—more than any other vulnerable group of Colombia’s civil society. In 2007, a special department was created in the Office of the Prosecutor General dedicated exclusively to solving crimes against union members and bringing the perpetrators to justice. Close to 85 percent of the sentences issued since 2000 for assassinations of trade unionists were issued after the creation of this department.

If Rep. Levin’s “adequate measuring stick is progress on the ground,” then he should recognize the tremendous achievements made by Colombia so far in reducing violence against trade unionists, and solving the crimes committed against them.

You can read the full paper here.

Government and Violence

Radley Balko writes:

[I]t’s worth remembering that the government initiates violence against its own citizens every day in this country, citizens who pose no threat or harm to anyone else. The particular policy that leads to the sort of violence… is supported by nearly all of the politicians and pundits decrying anti-government rhetoric on the news channels this morning. (It’s also supported by Sarah Palin, many Tea Party leaders, and other figures on the right that politicians and pundits are shaming this weekend.)

I hope Rep. Giffords—and everyone wounded yesterday—makes a full recovery. It’s particularly tragic that she was shot while doing exactly what we want elected officials to do—she was making herself available to the people she serves. And of course we should mourn the people senselessly murdered yesterday, government employees and otherwise: U.S. District Judge John Roll, Dorothy Murray, Dorwin Stoddard, nine-year-old Christina Green, Phyllis Scheck, and Gabe Zimmerman.

That said, I long for the day that our political and media figures get as indignant about innocent Americans killed by their own government—killed in fact, as a direct and foreseeable consequence of official government policy that nearly all of those leaders support—as they are about a government official who was targeted by a clearly sick and deranged young man. What happened this weekend is not, by any means, a reason to shunt anti-government protest, even angry anti-government protest, out of the sphere of acceptable debate. The government still engages in plenty of acts and policies—including one-sided violence against its own citizens—that are well worth our anger, protest, and condemnation.

The worst outcome would be for all dissent to become suspect. “Anti-government” is a concept used, essentially, to stifle debate, by conflating reasonable criticisms with the actions of lunatics. Both — of course! — are “anti-government,” and both are therefore guilty. It should be obvious what sort of agenda this furthers: Everything “government” is good.

Targeted Killing of U.S. Citizen a State Secret?

That’s the claim the Obama administration made in court. As Glenn Greenwald puts it:

[W]hat’s most notable here is that one of the arguments the Obama DOJ raises to demand dismissal of this lawsuit is “state secrets”:  in other words, not only does the President have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are “state secrets,” and thus no court may adjudicate their legality.

Italics in the original. My colleagues Gene Healy and Nat Hentoff have expressed concerns about targeted killings. Charlie Savage wrote a good piece on this that highlights how even the most ardent defenders of executive power may blush at this broad claim of power.

The government’s increasing use of the state secrets doctrine to shield its actions from judicial review has been contentious. Some officials have argued that invoking it in the Awlaki matter, about which so much is already public, would risk a backlash. David Rivkin, a lawyer in the White House of President George H. W. Bush, echoed that concern.

“I’m a huge fan of executive power, but if someone came up to you and said the government wants to target you and you can’t even talk about it in court to try to stop it, that’s too harsh even for me,” he said.

In fairness, Rivkin would defend the administration’s claim of power on other grounds – that targeting is a “political question” for the elected branches of government – but this approach seems to have lost out because it invites the judiciary to determine whether the U.S. is at war in Yemen.

Amending the Authorization for the Use of Military Force passed by Congress after 9/11 is long overdue. What groups are we truly at war with, where does the line between war and peace sit, who can we detain and kill, and what process is owed before a citizen may be targeted with lethal force? Questions of war are political in nature, and if we don’t know the answers, it is Congress’ role to step in and provide them.

‘Collateral damage worries you Americans. It does not worry me.’

Earlier this year, both The New York Times and The Washington Post confirmed that the Obama administration authorized the CIA to kill American-born, Yemeni-based Islamic cleric, Anwar al-Awlaki.

Several people I admire and respect—and who are far more versed in the legal aspects of the “war on terror”—have already weighed in on whether the U.S. Government is authorized to kill U.S. terror suspects abroad, so I defer to those experts.

But what’s interesting is that the U.S. Government has killed “many Westerners, including some U.S. passport holders” in Pakistan’s tribal areas dating all the way back to the Bush administration, according to Bob Woodward’s new book.

Jeff Stein over at WaPo’s SpyTalk writes that according to Woodward, on November 12, 2008, then-CIA Director Gen. Michael Hayden disclosed the killings to Pakistani president Asif Ali Zardari during a meeting in New York. At the meeting, Zardari allegedly said, “Collateral damage worries you Americans. It does not worry me.”

It now appears that two human rights groups are challenging the legality of the Obama Justice Department’s right to kill U.S. citizens abroad. Will these groups now do the same with former Bush officials, too?

A Government of Laws, Not Men

In the government of this commonwealth… the executive shall never exercise the legislative [or] judicial powers… to the end it may be a government of laws and not of men. – The Constitution of Massachusetts, 1780, drafted by John Adams, Samuel Adams, and James Bowdoin

In contrast, consider today’s news:

The Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki, who is believed to have shifted from encouraging attacks on the United States to directly participating in them, intelligence and counterterrorism officials said Tuesday.

Americans, this is what arbitrary government looks like. As a simple matter of fact, even George III was never this arbitrary. Even he didn’t make individual colonists’ lives depend merely on an act of his own will.

Indeed, if I wanted a perfect example of what a government of men, not laws, looked like, I could just glance at the newspapers today and see what our government is doing right at this moment.

Do not respond that this power will only be used wisely and sparingly. Doing so just admits my basic point, namely that we now depend purely on the wisdom and restraint of our individual leaders. We depend on their wisdom and restraint – to check their own worst impulses. All power, both for and against, is contained in one individual. No legal processes, and no guarantees, separate us from them. And the stakes are life or death.

Likewise, do not respond that this power will only be used against very bad people. Again, doing so just admits that we now depend on an unreviewable judgment of character, not on a legal system with formal procedures and safeguards. Even in the dark days of the Cold War – even during the Revolution itself – we never ceded so much power to so few.

To those who think our leaders’ prudence is a sufficient check on their own power, consider this. Let’s both grant that Barack Obama is basically a decent, well-meaning guy (apart from the fact that a decent, well-meaning guy would never want a power like this). If he’s a decent guy, then perhaps he’ll use his newly claimed power wisely, insofar as such an atrocious power can be used wisely. But on the other hand, if I were truly evil, and if I wanted to assassinate with impunity all the people I hated… Suddenly now I’d be very interested in running for president.

Glenn Greenwald has a lot more on the issue, including evidence that Barack Obama was apparently against this power… before he was for it.