Wednesday, September 01, 2010

Who Can Be The Target?

That's really the question that the ACLU and Center for Constitutional Rights is asking.

Anwar Al-Aulaqi (aka Anwar Al-Awlaki) is a radical cleric who was born in the United States. Unlike some radical clerics, he takes his preaching very seriously. In the 1990s, he traveled to Afghanistan. It is unclear whether he participated in training, but it appears that he was taken in by the Islamic teachings of those supporting Jihad. By 1998, after a few arrests for soliciting prostitutes, he was the vice-president for Charitable Society for Social Welfare, an organization with ties to Osama Bin Laden and Al Qaida. Not content to work for CSSW, from 1999 to 2000, he was a fundraiser for Hamas.

Already, you can see that this is a person with whom I would have a fundamental difference.

Although Al-Aulaqi was under surveillance by the FBI, there was never enough information pre-9/11 to make a case against him. According to reports, he was in contact with associates of Omar Abdel Rahman (aka The Blind Sheikh who had a hand in the 1993 attempt on the World Trade Center). He also helped get a battery for Bin Laden's satellite phone.

Then in January 2001, he settled in Falls Church, VA, where he started to preach at the mosque there. A native English speaker, combined with his charisma, made it easy for him to attract non-Arabs to joining Islam. In addition to new converts, there were two other men who were regular attendees at his mosque: Nawaf Al-Hazmi, Hani Hanjour, Nidal Malik Hasan. Al-Hazmi and Hanjour would soon crash an aircraft into the Pentagon. In 2009, Hasan, now a Major in the U.S. Army would be the Fort Hood Shooter.

In the investigation which followed, the FBI interviewed Al-Aulaqi about the hijackers. They also discovered Al-Aulaqi's phone number with the reported 20th Hijacker, Ramzi Binalshib. The FBI and the Congressional investigators both felt he was more involved than simply being the Imam at the Mosque that these men attended. However, there was no concrete evidence to allow them to move forward with any sort of prosecution.

As the investigations continued, Mr. Al-Aulaqi's preaching began to become more open and widely spread in support of Jihad. He praised suicide bombers in articles and in sermons. Moving to the United Kingdom, he continued to preach his version of radical Islam, claiming that the West was trying to kill Islam. The British government began looking into his connections with the Muslim Brotherhood.

With greater scrutiny on actions, Al-Aulaqi moved to Yemen, setting up at a Imam University. Imam University is reputed to being controlled or associated with Al Qaida. It was one of the places where John Walker Lindh studied for a time.

In his time at Imam University, it is reported that Al-Aulaqi has been acting as an agent of Al Qaida. Reports have been made that he negotiated agreements with Yemeni tribes to provide protection for Al Qaida. He has also issued communiques to Muslims living America, urging them to rise up against the U.S. All along, it is charged, that Al-Aulaqi has been recruiting for Al Qaida.

All of this has resulted Al-Aulaqi being placed on the terrorist watch list. It is also said that he is on a kill list that authorizes the CIA to assassinate him.

Frankly, I'm not sure that his death would be a bad thing.

However, there is a tiny little wrinkle. He's still an American citizen. And in the United States, when the government wants to execute someone, there has to first be a trial. And that result of that trial is subject to judicial review. It's called due process. The right is enshrined in the Fifth and Fourteenth Amendments.

Yes, sometimes it takes a while, but that's our system.

However, since 9/11, and some would argue earlier, it can be said we have been in a de facto state of war against militant Islam. Congress has specifically authorized the use of military force on two occasions (2001 and 2002). While not an outright declarations of war, they have been the legal basis for operations in Iraq and Afghanistan.

The 2001 authorization is far more broad in its permissions to the Government. It states

    (a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Essentially, the law could be read to give the Executive Brand the ability to go after any nation, organization, or person who had a part in the 9/11 attacks. If there is evidence that Al-Aulaqi had a hand in the 9/11, he could fall under class of people and organizations which the U.S. government could use force against.

The question then becomes whether it is necessary and appropriate. Given Mr. Al-Aulaqi's actions, necessary seems to be satisfied. The man is an effective recruiter for Al Qaida, convincing Muslims that it is their duty to kill Westerners, even if it requires them sacrificing their own life.

As such, in April 2010, President Obama approved a targeted killing order for Al-Aulaqi. To date, the CIA and other Federal agencies have failed to arrange a meeting between Al-Aulaqi and his hoped for matyrdom. If he is killed, it would make him the first U.S. citizen to be assassinated by the U.S. government in the War on Terror (as opposed to death on the battlefield or some other way).

On August 30, 2010, the Center for Constitutional Rights and ACLU filed a complaint seeking declaratory and injunctive relief. The remedy sought? Well read below.
Alaulaqi v Obama Complaint

The plaintiffs want an order forcing the U.S. government to disclose the criteria for someone being placed on the kill list. They also want an order preventing the Federal government from killing U.S. citizens except in armed conflict as recognized by U.S. or internation law.

While not the most convenient question, it is one that needs to be asked. Who can be the target of a targeted killing? Does the U.S. government have the right to execute a U.S. citizen who lives outside the country because they oppose U.S. policy?

Let's ask the question again, but take out the Islamic component. What if there was an administration in office which made a finding that there was a group that opposed government policy on abortion, taxes, and was very attached to gun ownership right. And there was an effective recruiter for that organization living in Mexico. All it would take to put the person on the targeted killing list is a finding by the National Security Council and approval by the President of the United States.

Do you know who the members of the National Security Council are? According to statute, they are: the President, the Vice-President, and the Secretaries of State and Defense. The National Security Advisor, the Deputy National Security Advisor, and the President's Chief of Staff are not required member, but are usually invited. Usually there is the military advisor, who is the Chairman of the Joint Chiefs of Staff, and the intelligence advisor. All of these people are appointed by the President.

And in designating such groups potential threats, as the one in the hypothetical, think that could not happen? Well, Department of Homeland Security almost did in 2009.

But then there is the flip side of the argument. We know that Al-Aulaqi is a terrorist, or at the very least, a fervent supporter of the terrorists' cause to the extent that the preaches that Muslims have a duty to participate in the jihad. Assume, for the sake of argument, that the government has developed actionable intelligence that he is taking an active role in the Islamic jihad against America and the West. By doing so, he does make himself a legitimate target. Were he found on the battlefield with a weapon, there would be no doubt that if he was killed by American servicemen, then he would be just another casualty of war.

While we have rights enshrined in the Constitution, does that mean he cannot be targeted as any other combatant in the War on Terror would be? And is there any way that the Constitution would allow for the death penalty for Americans who are not captured and brought to trial?

Oddly enough, the answer, if you were to ask some is yes. (And yes, I do realize that yes is answering both those questions.)

While I have touched on the former, let me touch on the latter. When the U.S. was being organized, and the various former colonies which were becoming states of the United States of America, there were similar concepts for stateless enemies.

One example would be pirates. By the end of the 18th century, piracy was well past the Golden Age of Captain Morgan, the pirate/privateer and not the character on the rum bottles. The law on piracy was developed to an extent. One of the concepts which was recognized was that a person caught engaged in the act of piracy could be executed if caught. No trial was necessary.

Conceivably, a judge who looked at originalist intent could arguably find that terrorists are modern day outlaws, just as pirates were in the 18th Century. Therefore, as it was a power of the U.S. Government in 1787 to order the killing of pirates, either through military expeditions or executions on the high seas, it could be found to be implied as a power of the government as the drafters understood it back then.

Whats the right answer?

Logic tells me that a targeted assassination is a violation of a person's due process rights as a citizen of the United States. However, the other parts of my brain tell me that there should be a way to deal with enemies beyond our shores.

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