Of Predator Drones and Due Process...

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Of Predator Drones and Due Process...

Was the attack that killed Anwar al-Awlaki and Samir Khan justified under US and International Law?

Just to give a basic framework of the discussion, the Palm Beach Post lays it out rather nicely:

The killing of the U.S.-born Al-Qaeda cleric Anwar al-Awlaki on Friday along with another U.S. citizen and two other Al-Qaeda operatives in Yemen is likely to fuel the international controversy over the legality and wisdom of the Obama administration's dramatically increased use of drone attacks.

For several years, U.S. allies have made no public comment, even as U.S. drone strikes have killed twice as many suspected Al-Qaeda and Taliban members than were ever imprisoned in Guantanamo Bay. But that acquiescence may change, as human rights groups and the media debate the legality and collateral damage of drone attacks. The U.S. drone program has been highly effective in killing senior Al-Qaeda leaders, but the administration needs to better explain and defend its use of drones to avoid losing international support and potentially exposing administration officials to legal liability

The U.S. position, under the Bush and Obama administrations, has been that drone strikes against Al-Qaeda and Taliban leaders are permitted by the September 2001 Authorization to Use Military Force Act, which empowered the president to use "all necessary and appropriate force" against nations, organizations or persons who planned, committed or aided the Sept. 11 attacks. The United States also believes that drone strikes are permitted under international law and the United Nations Charter as actions in self-defense, with or without the consent of the country where the strike takes place.

It’s perhaps easiest to start with the people who think that it was not justified, which seems to range across the political spectrum, but noticeably more present at the far peripheries.  From the far left, it is customary for me to start with Glenn Greenwald of Salon…

What’s most striking about this is not that the U.S. Government has seized and exercised exactly the power the Fifth Amendment was designed to bar (“No person shall be deprived of life without due process of law”), and did so in a way that almost certainly violates core First Amendment protections (questions that will now never be decided in a court of law). What’s most amazing is that its citizens will not merely refrain from objecting, but will stand and cheer the U.S. Government’s new power to assassinate their fellow citizens, far from any battlefield, literally without a shred of due process from the U.S. Government.  Many will celebrate the strong, decisive, Tough President’s ability to eradicate the life of Anwar al-Awlaki — including many who just so righteously condemned those Republican audience members as so terribly barbaric and crass for cheering Governor Perry’s execution of scores of serial murderers and rapists: criminals who were at least given a trial and appeals and the other trappings of due process before being killed. 

Meanwhile from the right we have Presidential candidates Ron Paul and Herman Cain representing the libertarian and conservative wings.  First, Ron Paul:

"No, I don't think that's a good way to deal with our problems,” Paul said in a videotape of the questioning by reporters. Awlaki “was never tried or charged for any crimes. No one knows if he killed anybody. We know he might have been associated with the ‘underwear bomber.’ But if the American people accept this blindly and casually that we now have an accepted practice of the president assassinating people who he thinks are bad guys. I think it's sad.”…

“I think, what would people have said about Timothy McVeigh? We didn't assassinate him, who certainly had done it,” Paul said. McVeigh “was put through the courts then executed. … To start assassinating American citizens without charges, we should think very seriously about this.”

Paul argued that the killing of Awlaki was different from the attack on Bin Laden because Bin Laden was involved in the 9/11 attack on the World Trade Center in New York and the Pentagon in Washington.

 Frankly, the Ron Paul logic on this one escapes me entirely.    How is it different?  Bin Ladin was never put on trial either, so was it just that 9/11 changes it?  And who exactly makes the decision as to whether one event is strong enough to overcome the need for a trial, and another is not.  I’d like to give the Dr., the benefit of the doubt and assumed he was misquoted, and/or there was something else he said to bolster this line of thinking, but I have been looking for two days and found nothing.

Meanwhile, Hermann Cain is being no less difficult to pin down on this one.  On May 5 of this year, Cain said

"He should be charged. And since he's an American citizen, he should be tried in our courts," Cain said of al-Awlaki. When asked if he considered it legal for President Obama to order al-Awlaki killed, Cain said, "In his case, no, because he's an American citizen."


This week, somewhat inexplicably, he stated:

“I never said that [President Obama] should not have ordered [the killing]. I don’t recall saying that. I think you’ve got some misinformation," Cain said. "Keep in mind that there are a lot of people out there trying to make me sound as if I am indecisive."

“I don’t know all of the compelling evidence that the intelligence agencies and the military had. I’m convinced—I’m convinced that they have enough intelligence information that said he’s a threat to the United States of America,” Cain said. “You don’t try to prosecute or capture him simply because he’s a United States citizen.”

Unfortunately, we don’t have a particularly clear-cut explanation of the legal thinking of the White House, as the memo that was drafted is secret….

The Justice Department wrote a secret memorandum authorizing the lethal targeting of Anwar al-Aulaqi, the American-born radical cleric who was killed by a U.S. drone strike Friday, according to administration officials.

The document was produced following a review of the legal issues raised by striking a U.S. citizen and involved senior lawyers from across the administration. There was no dissent about the legality of killing Aulaqi, the officials said.

“What constitutes due process in this case is a due process in war,” said one of the officials, who spoke on the condition of anonymity to discuss closely held deliberations within the administration.


The closest that we have to a legal reasoning is a speech by John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism before the Program on Law and Security at the Harvard Law School:


In the face of this ongoing and evolving threat, the Obama Administration has worked to establish a counterterrorism framework that has been effective in enhancing the security of our nation.  This framework is guided by several core principles.

First, our highest priority is – and always will be – the safety and security of the American people.  As President Obama has said, we have no greater responsibility as a government.

Second, we will use every lawful tool and authority at our disposal.  No single agency or department has sole responsibility for this fight because no single department or agency possesses all the capabilities needed for this fight. 

Third, we are pragmatic, not rigid or ideological – making decisions not based on preconceived notions about which action seems “stronger,” but based on what will actually enhance the security of this country and the safety of the American people.  We address each threat and each circumstance in a way that best serves our national security interests, which includes building partnerships with countries around the world.

Fourth—and the principle that guides all our actions, foreign and domestic—we will uphold the core values that define us as Americans, and that includes adhering to the rule of law.  And when I say “all our actions,” that includes covert actions, which we undertake under the authorities provided to us by Congress.  President Obama has directed that all our actions—even when conducted out of public view—remain consistent with our laws and values.


Now, I don’t really see much of a legal argument per se in there, but everyone else is pointing to this speech as the justification.  So, in the meantime, I guess we just have to guess as to what it is, and try to find a way to differentiate the Greenwald/Paul/Cain reasoning from that of the White House. 

Either way, what do you guys think?  Was the strike legally justifiable or not?


UPDATE:  This article in Military.com today gives me a little more to go on....

A secret panel of mid-level national security officials has been established that can put American citizens on a “kill or capture” list that is ultimately sent to the White House for final approval.

The panel’s recommendations first go through a group of National Security Council “principals” – meaning Cabinet secretaries and intelligence chiefs – for approval before reaching the president’s desk, according to a report today by Reuter’s.

There is no public record of the panel’s workings and no law actually establishing it or spelling out its functions.


I don't know if that makes me more or less apprehensive about this.  Is Congress cool with the President making this quasi-Judicial body without any legislative input? 

If anyone is reading an inherent bias on my part in the preceding, I'd love to know what that bias is, because I honestly have no clue how I feel about this whole thing.  I feel uncomfortable with secret bodies not authorized by legislation authorizing things like killings.  On the other hand, Awlaki needed to be ventilated and good riddance to bad rubbish.  But, we should always think worst case scenario with these sorts of things.  Can you envision a scenario where a US Citizen is killed abroad with a drone attack, and he didn't have what was coming to him?  Probably we all can.  So, what safeguard is there?  That's where I get somewhat lost. 

Update X2: The family of Samir Khan issued this press release today:

We, the family of Samir Khan, in our time of grief and mourning, request that the media let us have our peace and privacy during this difficult time.

It has been stated in the media that Samir was not the target of the attack; however no U.S. official has contacted us with any news about the recovery of our son’s remains, nor offered us any condolences.

As a result, we feel appalled by the indifference shown to us by our government.

Being a law-abiding citizen of the United States, our late son Samir Khan never broke any law and was never implicated of any crime. The Fifth Amendment states that no citizen shall be 'deprived of life, liberty, or property, without due process of law' yet our government assassinated two of its citizens.

Was this style of execution the only solution? Why couldn’t there have been a capture and trial?

Where is the justice? As we mourn our son, we must ask these questions.


The Khan Family.

I find that mildly ridiculous, because one of the last things Samir wrote was an article in the Al Qaeda Magazine entitled "I am proud be a traitor to America." So, he was a law-abiding self-professed traitor? Something doesn't add up there wouldn't you say?


My Friends at My Pet Jawa are also decidedly unpleased, and included this picture of Sami's article...

Posted in the burner | 355 comments
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I would consider this man a traitor, and a defector, and from that perspective one must conclude that it was justifiable, BUT only because he was a traitor.
What do our laws say about the legal rights of a traitor? I do not know but in this case that would be a good place to start.
I believe fully in our Constitution and in our principles of freedom, but how did the revolutionaries deal with traitors? I am sure that in those days if somone defected and joined our enemies and took up arms against us they would have most certainley been fired upon as any other who was wearing the stripes of our enemy.

If it was little bush that did this not ONE word would be said.... The news media are nothing but liers any more!!!!!


That comment is so old.

This is legitimately a tough call. I'm not going to lose any sleep over this guy being removed from the Earth. He was a bad guy, pure and simple. That said, he was also a citizen, and there are procedures for that. Just a couple weeks ago, Texas executed Lawrence Brewer, an extremely bad guy who had been involved in the dragging death of James Byrd, Jr. Is the world a better place without him? I can't argue it isn't. There was a process though.

On a battlefield, it's a little easier - if they're shooting at you, or about to, shoot back. Not a lot of problems in my book.

It's a weird world though when you get into the asymetric warfare that is terrorism and counter terrorism. You can launch an Op with a cell phone text message from a sidewalk cafe that kills 3000 people. Are you on the battlefield then?

I applaud the government for removing a bad operator from the playing field. I'm not going to lose sleep over whether this guy should have died or not.

But you do also have to raise your eyebrows cautiously and say - wait - how does the government get to decide who's a bad guy and who's a clear threat? Should there be some kind of clarity to that process? Not in a way that would compromise methods used to catch these guys, but surely there's a way to make public the legal rationalization.

Otherwise...there's a whole slippery slope to start worrying about.

I agree 100%. Not that he deserves anything but it steps on the toes of the justice officials and undermines our due process system. That's what we fight for, right? Liberty and Justice for all?

Tough call yes, but ask the question. Did this guy make war/attempt to make war on US citizens and/or soldiers? Was he directing, assisting or carrying out missions here or abroad. If yes, then let the rain fall.

Actually, yes he WAS directing, assisting and carrying out missions against the US directly AND US troops abroad AND US Allies. Two of the 9/11 hijackers were video taped visiting this guys Mosque prior to the attacks. Granted, nobody knows what they talked about, it can only be assumed. But it is known that before a Muslim goes on Jihad he/she will visit a Cleric and purify themselves.

Benedict Arnold was a traitor during a time of war and he was hanged as a result of his choice. al-Awlaki made his decision to be become a traitor of this country just the same and therefore he met the same fate.
I don't understand the liberals and the even more liberal journalists of this country defending this man. What rights did any of the Americans that were killed by the cowardly acts of a terrorist get? He may not have pulled the trigger or set off the bombs, but just the same as a General is considered a military target so should the leaders of any terrorist network be considered a viable military target regardless of their nationality.
Yes it is a tough call but once he decided to become an enemy combatant during a time of war he gave up all of his rights as an american citizen.
I cant speak for others but as a veteran and father of a Marine in Afghanistan I sleep better at night knowing that our military commanders and Commander-in-Chief made the decision to conduct this operation. If it saves one American service members life it was well worth it.

Mr. Smith,

Benedict Arnold died of poor health in England in January 1801. Using him as your example of a traitor is also complicated due to the political dynamics at play at that time. Was he a traitor to the newly minted United States, or was he a loyalist the the United Kingdom, that the United States was fighting to be independent of? Forgive me if I've gone off on a tangent, but it is difficult to make comparisons from past wars line up with the current situation. Here is another difficult example: should the Union have executed all Confederate sympathizers during the Civil War?

I need to correct myself. Arnold died in June 1801, not January.

Sorry, but Benedict Arnold was not hanged he and his wife went to live in England. He thought he was going to be received as a hero, but was thought of as a traitor even in England.

Mr.Smith your comment was well put as a miltary veterant I can see your most cilvilans the way we see the point of view. The man choice was to kill americans and to me anyone that decides to be our enemey will meet their fate as well.

He had no Constitutional protections since the Bill of Rights did not yet exist. Also, it is well understood today that military members voluntarily give up certain protections from self-incrimination and to due process as part of their volunteering for military service. We have similar (but not equal) protections as codified in the UCMJ.

Knowing the acts and verbage used by them anainst the United States and the fact that they were in a foreign country plotting against the Unites States and its citizens, then I would vote yes the President has the right to order the strike against them.

However, this should not mean that he has the right to order a strike against anyone else. When a citizen turns against the Country in words and deedsthat are traiterous and the only way to be able to bring them to justice is to seek them out and destroy themshould be specifically defined in law and be extreme imited by the law for future operationsur1jg

Using him as your example of a traitor is also complicated due to the political dynamics at play at that time. Was he a traitor to the newly minted United States, or was he a loyalist the the United Kingdom, that the United States was fighting to be independent of? Forgive me if I've gone off on a tangent, but it is difficult to make comparisons from past wars line up with the current situation. Here is another difficult example: should the Union have executed 5 minute membership at all Confederate sympathizers during the Civil War? click n bank

He got his 97 Virgins what's the problem?
Sorry he didn't get the Navy treatment BL got.
Navy pissed all over him and put pork in the bag before dropping him off to the sharks.

Once Anwar al-Awlaki and Samir Khan became terrorists, they are no longer American Citizens and deserved what they got.

YOU ARE CORRECT, just take up your US Passport: number 8..............citizenship can be lost. Also, after the Civil War: Citizenship had to be restored. Robert E Lee was a classic example...........

Any person, regardless of race or adverse tenets who declares his pride in being a traitor to the USA and his former friends, whom he obviously wants to harm, deserves to pay the price for his criminality.

We are a nation of laws that govern civilians and military of the US. Our laws do not include foreigners in other countries and especially does not include terrorist and combatants seeking to destabilize the US or the rest of the free world. This isn't about fair play. We received no warning of bombings at our embassy's in Africa, Lebanon, The Petagon, and The World Trade Buildings in New York on 9/11. I am tired of the rest of the world dictating policy on how we treat our enemies.
To use an old saying "I say Kill Em All and let God sort them out" Send them all to ALAH

He was an American Citizen who joined an organization who declared war on the United States and has pledged itself to the destruction of western civilization. He has committed treason against our country. He has preached the destruction of our country. So tell me, where is the due process, what rights?

Sorry when an individual does such things he is no longer protected by citizenship or rule of law. Any person who denies other persons of Life, Liberty and The Pursuit of Happiness deserves death.

I don't see a problem with it. On any other battle field, the question of citizenship would never come up. The only consideration would be do you have a clear shot? At the point where the drone fired it's missile, did we have an absolute identity, or just a suspicion? Worrying about things like that may give us the moral high ground, but will lose us the war! The other side wouldn't bat an eyelash in achieving their goal. I say if they establish the rules, then play their game their way. We can apologize after the fact!

We have laws and regulations that covers all war situations between two combating countries.
We do not have laws nor regulations in the case of terrorism acts, conducted by groups of militants that do not represent a given country, but do represent ideologies.
The International organizations should formulate laws and regulations that should cover those cases.
There will always be does who conduct their part following the existing regulations and those that will not follow any regulations nor international accords.

F the law. shoot first and ask questions later for when it comes to terrorists. he decided to join the terrorist which means he shall join them in death!

Yes, he was an American, but he was a traitor to this country. He was no longer a Citizens of this Country when he turned against it. How many American Lives did he take? Did he consider the fact that he was killing his brothers and sisters. He got what he deserved.

I feel it was fully justified based upon the actions taken by the individuals against Americans. They can be classified as Terrorists or Traitors, as the case may be. The vast amount of intelligence that is being taken to identify, track and hunt them down provides ample opportunity to determine their aggressive nature, actions and intentions. Civil liberties are for civil people. The individuals that were targeted were far from what would be considered a "civil human being" in any society. The program should be increased to the point that if a terrorist looks into the sky, a drone would be looking down on him.

I am looking forward for your next post, I will try to get the hang of it!
Mcford University

The vast amount of intelligence that is being taken to identify, track and hunt them down provides ample opportunity to determine their aggressive nature, actions and intentions. Civil liberties are for civil people.
Mcford University

The way we're giving up our Freedoms, and the way the Liberals continue to take away our Freedoms and Rights, we now must also re-consider our actions, in eliminating a terrorist, American or Not, the Terrorist got what was coming to him!

C'mon America - Do you think, or believe those guys that we took out, would even think once, as to a person's citizenship, gender, age, religious preference, or sexual preference? You must know what I am getting to here....."The Only Good Terrorist, is A Dead One!"

There's no political or should I say :"National Preference," or protection, when you are the one that devices harm and cause loss of innocent lives in the free world!

United States Citizen or Not - If you're a terrorist, you will be taken out!

Bottom Line!

Who is to say who is a terrorist? That is a very dangerous label, and will be used against us, even as we drone people into martyrdom. So Obama says he was a terrorist. Well, he has proven trustworthy. I mean, he even shut down Gitmo, right? All of the trillions of dollars he gave away went strait to shovel-ready projects, right?
There is no oversight here, and that increases the potential for abuse. Obama has ordered more drone strikes in two years than Bush did in six. Are there really so many "terrorists" in the world? Senator Sherrod Brown was bragging in our newspaper that we are expanding the drone fleet by 90%. This at a time when our nation is dying from within. Many, many families around here are hurting financially, our neighborhoods are full of vacant houses, and we are building more multi-million dollar weapons. Who are we going to use them on? Are these for the war with Iran they are prepping us for now?
Every drone strike we make prolongs this war. Or these wars, more accurately. There is no honor in it, and every one invites retaliation. Every drone strike is pure propaganda for recruiters. Surely those we call enemies will one day have this technology. We claim the right to bomb indiscriminately in other nations. How would you feel if the same were done to us? What if Mexico declared Eric Holder a terrorist and droned him off the face of the Earth?
I propose that drones be treated the same as chemical and nuclear weapons. No one should use them to deliver death.
It is much like the traffic cameras that are popping up. An Officer on the ground can make a human judgement call as to why you ran the light. Maybe it was raining and stopping would have caused an accident. maybe you deserve a ticket! With the camera you just get a ticket in the mail.
it is risky to fight without drones, I know, but the biggest risk is to Obama losing support when more American soldiers begin to die for this ridiculous war. But war is risky. So is life, democracy, a career, freedom, and crossing the street. If we are not willing to risk the lives of our young men and women in an honorable war then perhaps we should not be fighting it.

Lastly, we must consider how hypocritical it is to declare someone a terrorist because they blew something up, and then blow up a whole building full of people to kill them. Are we not delivering the same terror? Maybe it's just ok because we do it, and Obama says they are a terrorist. I can't wait until he finds one in Europe.

He posed a immediate danger to to U.S. lives, lethal force was authorized. If he could have been taken into custody with out endangering US lives we should have done so, this however does not appear to have been the case. He could have turned himself in at any time, he did not. It was his call and choice, glad we could be of service. ex Cop and AF Vet

Pull our Troops OUT and then Nukem all.

You bet it is. The first group that spoke above who thinks that it was wrong and everyone should not be derprived of life with out due process. What kind of brainless thinking is that?
The enemy of our Country does not get the right to due process on the battle field for pete's sake. Why should anyone else who is devoted to destroying our great Nation. Get politics out of the war and let the military hadnle it and it would have been done years ago!

I think that, yes, his death by our drone was justified.

We know that our government's choice was not that of one man; the choice instead followed repeated meetings of very studied minds.

I think that our government officials made a good choice in this case.

I'm not going to go unto detail but I did not see any post saying this person should still be alive. If America wants to survive in the future, they will have to show the countries and terrorists that are against the US, that America will have no mercy and they picked the wrong country to f--- with. America does not wish harm on innocent people, but sometimes that is the cost when you choose to let terrorists raid you country. The country is more scared of the terrorist then the US because the terrorist threaten thief lives while the us gives them money and food that the US does not even have. Would you turn in a terrorist that can kill your family? It is hard for people of these countries that have to live around terrorists organizations.

Kill them any way you can. They want to go over to the enemy then they should be treated just like the enemy they are. Why risk American lives when we can use drones.

Hell Yes !! Too bad it took so long to paint him. Mark some more so we can, "Light em Up" !

US Citizen or not, becoming and being an active member of a terrorist cult bent on America's destruction forfiets their citizenship, their rights and their life...

The right to kill or assassinate citizens are reserved for Monarchs and Dictators who own their citizens. The President of the United States nor any state or Federal agency have the authority to take away any inalienable right, e.g. LIFE for exercising his first Amendment right of FREE SPEECH. It appears that he was an editor and Blogger and never carried a weapon. Anything else is mere propaganda until the individual is charged in a Court of Law and convicted by his peers. In our REPUBLIC which is the RULE of LAW protects the rights of individuals from (the mob) public opinion and does not grant imperial authority to anyone.

"...conviced by his peers." YGBSM! A jury of Islamic Jihadists? Your point is well taken if relative to an ordinary American "citizen" in dispute with the government over domestic affairs. The dirtbag who was an American "citizen" only as a matter of paperwork, and an enemy combatant in reality, (cite your own "propaganda"), is not subject to Constitutional protections -- not if the Republic is to survive. An awkward technicality? Nope. Not even that.

So the same could have been said for Goerbels?

Part of the oath every recruit takes upon joining any branch of the military is 'to defend the U.S. against ALL enemies. Both foreign and domestic..."
1st... In my oppinion, this "Citizen" gave up his rights when he sided with an organization that,not only spoke against, but also, ACTED against the U.S.
2nd... I imagine with all the trouble we went thru to aprehend Osama(and see how thqat ended up), the powers looked at the apprehention of this guy. But considering suiside is the prefered way to avoid capture, why risk American lives when a drone will do the trick!
3rd... There was a certain honor in battle when our Constitution and Bill of Rights were written. They weren't dealing with people who's mindset is that there is no greater honor than to die for Alah. And have proven over and over that innocent lives would not deter them from finishing their mission.

Oh... to put my oppinion in perspective... This is one of the only actiuons this president has taken that I agree with!

Remember this " all is fair in Love and War" and my friends this is war .

I will forward this article to him. Pretty sure he will have a good read. Thanks for sharing!
undergraduate course certificates, Business management degree, online criminal justice degree

Anyone who is an american and aids or becomes the enemy, is a trator and as a trator should be put to death. This is a free country but trators are trators and there is no justifaction to help the enemy! Keep up the good work perdator.

10 years ago we (USA) declared war on terrorist and those associated with or assisting in their terrorist deeds, so anything of that nature has to do with rules of war not rules of law. When you declare war on someone you don't say well we are gonna wait to strike until we think we're covered by the law, you go get them before they get you. Remember that saying, "alls fair in love and war". I guess that if these terrorist and their associates want due process then they need to change their occupation choices. Gordon

Plus all of these bleeding heart liberals needs to be put on the front lines of combat seeing just what these terrorist are doing and capable of doing to them they might smarten up a bit and quit crying over simple @#$% of war.

by all means the attack was justified, threaten my country, you threaten me. perhaps the liberals havnt heard the old adage Live by the sword,Die by the sword.


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News from the World of Military and Veterans Issues. Iraq and A-Stan in parenthesis reflects that the author is currently deployed to that theater.