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

by Samuel B. Parker

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.