Anwar al-Awlaki: A Watershed Moment in the U.S. Drone Program’s Erosion of Constitutional Rights

by Samuel B. Parker

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On September 30th, 2011, President Barack Obama ordered a drone strike against Anwar al-Awlaki, a Muslim cleric living in a remote village in Yemen who had been accused of participating in terrorist plots. The drone strike successfully eliminated al-Awlaki and ended the threat that he ostensibly posed to the United States.

In many ways, this event mirrored countless others before it. It was unilaterally directed by a U.S. president. It targeted a noncombatant. It violated both Yemeni sovereignty and international law. And while all of these facts are certainly damning, they did not contravene the contemporary status quo: one that has accepted unaccountable executive actions that victimize civilians and breach the autonomy of other nations.

But one factor did set this drone strike apart from the thousands that preceded it: Anwar al-Awlaki was a U.S. citizen, and his manner of death implicated the U.S. Constitution and the unconditional rights delineated therein. Those fundamental rights include the right to speech and the right to due process of law, both of which were wholly infringed by al-Awlaki’s extrajudicial execution.

Al-Awlaki was born to Yemeni immigrants in New Mexico in 1971. He spent his early life in the United States before moving with his family back to Yemen in 1978. As an adult, al-Awlaki returned to the U.S. to study in 1991 before eventually and permanently leaving the country in 2002 as a result of the “climate of fear and intimidation” following the September 11th attacks.

The U.S. government had previously identified al-Awlaki as a person of interest due to his alleged ties to multiple al-Qaeda operatives in the United States, Canada, the United Kingdom, and elsewhere. Specifically, al-Awlaki’s jihadist preaching was credited with inciting violent hostility towards Western societies and this violent hostility, in turn, purportedly provoked terrorist acts. A long list of individuals who attended his sermons, viewed his lectures, or were personally ministered to by the cleric reportedly includes the 9/11 hijackers and members of the failed 1993 World Trade Center bombing scheme, among others. While U.S. intelligence agencies long suspected his indirect involvement in numerous terrorist operations, no charges were ever filed against al-Awlaki while he lived in the United States, and no evidence has ever been produced to indicate that he took part in the orchestration of terrorist attacks. While he was placed on a government watch list after the September 11th attacks, he was also invited to attend a private event at the Pentagon only weeks later and was permitted to leave the United States the next year. His role as a preacher and spiritual advocate of radical Islam was too vague and too general to warrant his detention by U.S. law enforcement.

However, in 2009, his personal connections and direct communications with the perpetrators of the Fort Hood shooting and the attempted bombing of Northwest Airlines Flight 253 in Detroit resulted in his placement on the Disposition Matrix: a classified and formerly secret “kill list” maintained by the U.S. government. As in prior cases, al-Awlaki categorically denied claims that he had ordered, encouraged, or even suggested either operation, although he did admit that he had a relationship with the responsible parties and even expressed his approval of the assault on the airliner. After these incidents and his connection to several others, al-Awlaki was labeled a “specially designated global terrorist.” President Obama authorized U.S. intelligence agencies to kill him on sight. Two years later, he was dead: a martyr whose persuasive efficacy has only been enhanced.

Was al-Awlaki a terrorist? Did he actively engage in the planning of attacks against innocent men, women, and children? It is possible, and perhaps even likely. But it is not certain that al-Awlaki instigated such atrocities, nor were his verified activities necessarily criminal.

Two significant U.S. Supreme Court rulings served to further define al-Awlaki’s absolute right to free expression enshrined in the First Amendment. In Brandenburg v. Ohio, the U.S. Supreme Court overturned the conviction of Ku Klux Klan leader Clarence Brandenburg, who had threatened several political officials during a public speech. Brandenburg was tried under an Ohio statute that prohibited the advocation of “unlawful methods of terrorism as a means of accomplishing… reform.” The U.S. Supreme Court considered whether it was constitutional to criminalize speech that “advocates illegal activities” such as terrorism, and ruled against the state of Ohio on the grounds that the law was obscure and overbroad; only in cases wherein “the lawless action… [produced by the speech is] imminent,” the Court held, could such speech be forbidden.

Not only did al-Awlaki’s speech fail to demonstrably yield immediate danger when measured against the Brandenburg test (still the decisive standard for deciding speech and expression cases), but he was also shielded from liability in the event that other individuals cited his speech as instrumental in motivating their crimes. In National Association for the Advancement of Colored People v. Claiborne Hardware Company, the U.S. Supreme Court unanimously ruled that “nonviolent elements” of protest including “‘threats’… [of] force [and] violence” are entitled to First Amendment protection, and that a person is not legally culpable for the actions of others that their speech supposedly inspires.

In other words, al-Awlaki’s speech was safeguarded by the U.S. Constitution, and he was not answerable for the behavior of the terrorists who were roused by it.

Perhaps there is an argument to be made that al-Awlaki’s conduct fell outside the scope of these U.S. Supreme Court decisions and even beyond the limits of his own constitutional right to speech. But the time and place for that argument would be in the courtroom, where such points could be deliberated in accordance with the due process that al-Awlaki was indisputably afforded by his status as a U.S. citizen. Instead, President Obama elected to act as judge, jury, and executioner because, in the words of David J. Barron, “‘the risk of erroneous deprivation of a citizen’s liberty in the absence of [due] process’… [is] overwhelmed when the target poses ‘a continued… threat of violence or death.’” Simply put: in circumstances arbitrarily evaluated by U.S. intelligence agencies and the executive branch as sufficiently extreme, constitutional rights no longer have any application or relevance. They no longer matter. Barron provided no clarification or basis for these remarks. He simply offered them as evidently true.

The Obama administration predicated its argument for the legality of its assassination of al-Awlaki on the infamous and sweeping S.J.Res.23 - Authorization for Use of Military Force (AUMF), which, unbound by either time or geographical location, permits the U.S. president 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.” Two things must be noted regarding this defense.

Firstly, if the powers granted to the U.S. president by the AUMF could be said to supersede the privileges and immunities guaranteed to U.S. citizens by the Bill of Rights, then the resolution was inherently unconstitutional and therefore entirely illegitimate to begin with. And if its stated intent had been to supplant the right of due process with unchecked executive purview, there is little doubt that it would never have been passed by the U.S. Congress. Secondly, even if the AUMF had constitutional legitimacy, there is no evidence that conclusively links al-Awlaki to the September 11th conspirators, a fact that would arguably place him outside of its scope. In fact, the FBI interrogated al-Awlaki in 2001 and subsequently declined to pursue charges related to the attacks.

So why didn’t the U.S. government simply capture al-Awlaki and transfer him to the United States to stand trial? Officials in the Obama administration insisted that it would be difficult and “infeasible” to do so, as if constitutional and human rights are premised upon the practicality, ease, and convenience of observing them in any given scenario. That is neither a legal nor a moral justification. Rather, it’s an acknowledgment that it is often impractical and inconvenient to honor human rights, which of course is the whole point of codifying them in the first place.

In the face of heated criticism and valid fear surrounding the summary execution of a U.S. citizen by drone strike, President Obama supplied only meaningless explanations and empty promises. He assured the American public of his sincere belief that it would be unconstitutional “for the government to target and kill any U.S. citizen… without due process… over U.S. soil.” Unfortunately, he neglected to elaborate, leaving millions of Americans to wonder whether U.S. soil is somehow the mystical source and guarantor of their rights, and whether they could be extralegally slain during their next vacation in Cozumel. Less than a year later, President Obama’s own Attorney General Eric Holder contradicted him: in “extraordinary circumstance,” Holder said, the U.S. president is constitutionally empowered to kill U.S. citizens without due process on U.S. soil.

The precedent established here is obviously horrifying. The U.S. government had already demonstrated that it would not be constrained by international law or by any coherent school of ethical thought. With the execution of al-Awlaki, they also displayed inability and unwillingness to comply with the limitations that their own domestic laws impose upon their power. What constraints remain? If it is true that the U.S. president can exercise discretion to determine the severity of the threat that a person represents to the nation and can use his own judgment to decide whether that person may access their rights, what can and what will stop him from dispossessing any and every American of those rights?

To be clear, al-Awlaki was a force of unmistakable evil. His rhetoric was reprehensible; his words and the values that they reflected demand profound and total condemnation in the strongest possible terms. Al-Awlaki condoned aggressive violence towards innocent people, and he celebrated such aggressive violence when it occurred. And yet, we must ask ourselves: is every subject of retributive government action necessarily guilty? Al-Awlaki may indeed have been. But what about the others? What happens when the U.S. government gets it wrong?

These questions are the reason, the foundation, for constitutional rights, and al-Awlaki was a U.S. citizen with those rights. The murder of a U.S. citizen is, of course, no morally different or worse than the murder of a noncitizen. But what is revealed by this event is both unique and chilling: there is no law, no logic, no moral principle that will deter the U.S. government from transgressing the constitutional and human rights of the very people it professes to protect.

Anwar al-Awlaki is dead, and there’s really no telling who will be next.