Op-Ed: Legality And Wisdom Of Killing Al-Awlaki

An American drone flying over Yemen fired a missile that killed Anwar al-Awlaki, an al-Qaida operative and U.S. citizen. Many hailed the elimination of a man implicated in several terrorist plots. Others wonder how any American citizen can be placed on a death list based on secret intelligence.

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NEAL CONAN, host: And now, the Opinion Page. On Friday, an American drone flying over Yemen fired a missile that killed Anwar al-Awlaki, a senior official of al-Qaida in the Arabian Peninsula and an American citizen. Many hailed the elimination of a man implicated in several plots to attack the United States. We are at war with al-Qaida, the argument goes, an attack to kill an enemy commander is entirely justified. Others wonder how the president of the United States can put any American citizen on a death list on the basis of secret intelligence with no opportunity to challenge the evidence and no judicial review.

We want to hear your thoughts on the legality and wisdom of the drone attack that killed Anwar al-Awlaki. Our phone number is 800-989-8255. The email address is talk@npr.org. And you can join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION. We're also going to read excerpts from several op-eds, and there's a list of those at our website. Again, that's at npr.org. Click on TALK OF THE NATION. This email from Faye(ph) in New Bern, North Carolina.

I am disgusted to think that people are defending the civil liberties of the likes of Anwar al-Awlaki just because he's an American. American criminals are put to death here in this country from time to time. If a criminal is fleeing from a crime scene, are not the police allowed to warn, halt or I shoot? Is it not killing in self-defense considered legal? I've just cited three precedents for killing American citizens. The man was a known criminal. He hated America and did his best to see us undone. Why should his civil liberties be protected? Why isn't killing him a form of self-defense?

And this email - this is from Dave in Madison. The president I voted for took an oath to preserve, protect and defend the Constitution. He has willfully violated his oath by denying the protection of the Fifth Amendment to al-Awlaki and Samir Khan. These citizens were not even enemy combatants as styled by the Bush administration. There is no American battlefield in Yemen. Murder most foul. I call for impeachment.

And as we mentioned, we wanted to read some op-eds. And this is from Mary Eileen(ph) O'Connell on CNN. She's a professor of law and research professor of international dispute resolution at the University of Notre Dame Law School. How could we, she wrote. Killing in war is justifiable morally and legally because of the extraordinary situation of real hostilities. In the limited zones on the planet where two or more contending armed forces fight for territorial control, people are on notice of the danger. In such zones, the necessity to kill without warning is understood. Still, even in combat, there are rules.

Civilians may not be directly targeted; principles of necessity and humanity restrain. When no such armed fighting is occurring, killing is only justified to save a human life immediately. Peacetime human rights and criminal law prevail. The actual facts of fighting determine which rules govern killing. The president has no override authority. Nor should he want it. These rules apply globally. The U.S. should not weaken them, providing a basis for Russia, Iran, China or Pakistan to declare war against opponents, killing them anywhere with missiles and bombs. And what about within the U.S.? If the president can target suspects in Yemen, why not here?

And let's see if we can get another caller on the line. Again, it's 800-989-8255. Email, talk@npr.org. We'll start with Al. Al with us in Minneapolis. Hello, Al.

AL: (Unintelligible).

CONAN: Well, I guess, he's not with us in Minneapolis. Let's see - we go to Jessie(ph). Jessie with us from Grand Junction.

JESSIE: Hi. Thanks for taking my call.

CONAN: Grand Junction, Colorado, of course. Go ahead, please.

JESSIE: Hi. I just have a quick point. I know I haven't looked at to - the were saying that they didn't violate the Geneva Convention, and I wasn't really sure the specifics of it. But I have seen some documentation that Obama had signed saying that in situations like this, this can work around that, and it doesn't apply to it. So my only concern with that is basically is, you know, what extent are we willing to work around these international conventions, you know, how big of much of a power we're giving ourselves by doing that?

And can we really trust ourselves to have that power? I mean, I'd love to trust our government. I'd love to trust the intelligence that we have, but I mean that seems like a slippery slope to be going down.

CONAN: I hear your argument. The opposite argument is this is an enemy commander. He has conducted war against the United States, declared himself to be at war with the United States, renounced his citizenship, and you have an opportunity, a fleeting opportunity to shoot - to kill him, as the opportunity presented itself in the Second World War to kill the commander of the Japanese combined fleet.

JESSE: Exactly. Yeah. I agree on both sides of the spectrum. I think it's just one of those issues that's a little bit hard to deal with because both sides have really strong points on it, and it's - on the end of it, it kind of goes into a matter of trust and what kind of trust we have and...

CONAN: All right, Jesse. Thanks very much for the call. Appreciate it.

JESSE: Thank you.

CONAN: This is an editorial from The Daily Beast by Richard Miniter: For the first time since the days of Abraham Lincoln, an American president has ordered the killing of a U.S. citizen, far from any battlefield or courtroom. And like Abraham Lincoln, Obama has saved the Constitution and the country by defending it against a nihilistic and narrow reading of the Constitution that would prevent the country from protecting itself.

Awlaki was an imminent threat to the lives of Americans and our allies. Based on Awlaki's links to two 9/11 hijackers, to the leadership of al-Qaida in the Arabian Peninsula and to jihad in America, there's no doubt he posed a continuing and urgent threat. As evidence accumulated of Awlaki's links to Major Nidal Hasan, the Fort Hood shooter, and Umar Farouq Abdulmutallab, the so-called underpants bomber, who planned to down a Detroit-based jet on Christmas day, and to the Times Square bomber, these developments only confirmed Obama's view that Awlaki was a clear and present danger.

The government of Yemen was not going to arrest him. And unlike bin Laden - excuse me, just a turning a page here. Unlike bin Laden, he moved constantly, meaning the Special Forces team would be going into a location they knew little about. And while Awlaki's protectors were numerous, hardened and well-trained, these those two factors increased the odds of a deadly failure, nor was there any reliable way to lure Awlaki to a place where he might easily be captured. The president was left with two hard options: ignore Awlaki or kill him in a way that minimizes civilian and American casualties.

Let's see if we get another caller on the line. Let's go to Patricia, Patricia with us from Syracuse.

PATRICIA: Thanks for taking my call. So we have this guy who's tie has been confirmed as having his hand in all these acts of what, I think, are called treason. Isn't that treatable with the death penalty? And I'll take your comments off the air.

CONAN: Well, thanks, Patricia. You left the air before I could tell - say, of course, yes, the Constitution does call for the death penalty for treason, but that would call a trial for treason, and that's the point that a lot of writers, op-ed writers mentioned.

This is from the Los Angeles Times: If Awlaki was, in fact, the architect of terrorism attacks inside the United States, as officials maintain he was, then perhaps his demise is to be welcomed, but we don't really know, do we? There was no transparent, legal, reviewable process by which he was placed on the list of those targeted for killing by the U.S. government. There was no judicial procedure, nor any public airing of the charges against him. He had no opportunity to respond to specific allegations.

Even in wartime, the killing of a U.S. citizen or anyone else who poses no immediate danger is morally obnoxious. It also is impossible to harmonize with the U.S. Constitution. The Fifth Amendment says that no citizen should be deprived of life, liberty or property without due process of law. If Awlaki had been arrested in America rather than assassinated in Yemen, he would have had an incontestable right to a trial.

We understand the government's conundrum. In this dangerous new world, our enemies don't wear uniforms; threats cross national borders, and an order given abroad can quickly lead to devastation at home. The U.S. has struggled for a decade with how to safeguard people without crossing moral lines or violating individual rights. But if the U.S. is going to continue down the troubling road of state-sponsored assassination, the government should, at the very least, provide a clear understanding of the criteria used to decide who should be placed on the target list.

This is from an email. This is from Ed. In the 18th century, the British Army was confounded by the guerrilla tactics of American revolutionaries. Their inability to adapt to this new method of war led to their defeat. In the 21st century, Lower Manhattan has become the battlefield. Commercial airliners and vans loaded with improvised explosives are the new weapons. We can either cling to our traditional notions of warfare, or we can adapt to these new methods of war. Our nation's security requires the latter.

And this is an email from Louis(ph) in Denver. Although every American citizen, good or bad, has a right to trial to confront his or her accusers, the killing of al-Awlaki without trial shows I was wrong. Apparently, only some American citizens have the right to trial.

And this is from an editorial that was published in The New York Time, an op-ed piece. This is from Yasir Qadhi, an American Muslim cleric. And he writes that, by the killing of al-Awlaki, you create a martyr. Mr. Awlaki's ideas were dangerous, he writes. His message that one cannot be a good Muslim and an American at the same time was insulting to nearly all Muslim Americans. His views about the permissibility of killing Americans indiscriminately were completely at odds with those of mainstream Muslim clerics around the world. He needed to be refuted, and that is why many people, myself included, were extremely vocal in doing just that.

Mr. Awlaki needed to be challenged, not assassinated. By killing him, America has once again blurred the lines between its own tactics and the tactics of its enemies. In silencing Mr. Awlaki's voice, not only did America fail to live up to its ideals, but it gave Mr. Awlaki's dangerous message a life and power of its own. And these two facts make the job of refuting that message now even more difficult.

Let's see if we can go next to - this is Al. Al is now on the line from Minneapolis. Nice to have you back. Al, are you there? Evidently Al's still not there. I apologize for that. Let's go instead to Rufus, Rufus with us from Orlando.

RUFUS: Yes. I want to say that when this gentleman stated explicitly his intention against the United States government, against - but he would be - what would be fellow citizens of the United States government, at that point, he forfeited any right to a fair hearing by a trial. He forfeited any kind of reasonable effort that could be used to detain him to have a judiciary hearing of that effect. And I totally support what the president did, and I think this clearly is indicative of his being tough on terrorism and being an American that will uphold the Constitution of the United States.

CONAN: Though an American, any American is - if presented secret evidence, no judicial review whatsoever, the president can just put him on the list and say, if you see this person anywhere in the world, you can kill him.

RUFUS: You know, that's a slippery slope that we go down with this. And quite frankly, that's why I trust this president, that his people would weigh the evidence, vet it to the degree that it would not go to other extreme as you've just outlined there. But that's a slippery slope that we face with this kind of war that we are in, and, you know, those are some of the powers that we will give to the commander in chief when we put him or her in office to protect our life, liberty and pursuit of happiness.

CONAN: Rufus, thanks very much for the phone call. Appreciate it. We're collecting opinions on the drone attack that killed an al-Qaida operative and an American citizen, Anwar al-Awlaki in Yemen on Friday. You're listening to TALK OF THE NATION from NPR News.

And this is Micki(ph), Micki with u from Dexter, Michigan.

MICKI: Hello.

CONAN: Hi, Micki. Go ahead, please.

MICKI: Well, now I have two comments based on what the last caller has said. Based on what he said, you know, I heard several referenced to the slippery slope, a and my opinion is, if you're going to get on that slippery slope and cohort with al-Qaida operatives, then you're putting yourself in danger. And I can't but applaud Obama for this action and potential in saving thousands of American lives. If you're going to get in bed with al-Qaida, then you'll face the same consequences as they do.

CONAN: Micki, thanks very much for the call.

MICKI: Thank you.

CONAN: Email from Wayne in San Mateo. Our government has just demonstrated it has the capacity and will kill with impunity any Americans suspected of undesirable activity without due process and in violation of our individual rights simply for expediency.

And this email from Carl(ph) in Cincinnati - excuse me, Earl in Cincinnati. Having never been in indicted for an actual crime, he could not have given himself up and claims his rights to be tried. Also, no hard evidence or specific direction he gave anyone has ever been provided to the public or even had an attributable on-the-record government source name attached to it. He was a citizen killed with no specific charges on the bases of no specific evidence. How could he be considered a fugitive from justice, rather than the subject of summary education.

And this editorial was from the Wall Street Journal by former Justice Department official, John Yoo. Today's critics wish to return the United States to the pre-9/11 world of fighting terrorism only with the criminal justice system. Worse yet, they get the rights of a nation at war terribly wrong. Awlaki's killing in no way violates a prohibition on assassination first declared by executive order during the Ford administration.

As American government officials have long concluded, assassination is an act of murder for political purposes. Killing Martin Luther King Jr. or John F. Kennedy is assassination. Shooting an enemy soldier in wartime is not. In World War II, the United States did not carry out an assassination when it sent long-range fighters to shoot down an air transport carrying the Japanese admiral Isoroku Yamamoto. American citizens who join the enemy do not enjoy a roving legal force field that immunizes them from military reprisal.

Let's see if we can go next to - this is Bruce, and Bruce is on the line with us from Golden, Colorado.

BRUCE: Good afternoon. I think the problem - what happened is problematic from the constitutional point of view that I don't believe we have a constitutional declaration of war. Therefore, all the citations of justification saying that this wartime act are - that's the weak link, I think.

CONAN: Without a - so every American soldier who fired a weapon at - in Vietnam or Korea was committing an act of...

BRUCE: Let's - the issue here is that an American citizen was targeted and you have no declaration of war from a constitutional standpoint, and you have the Fifth Amendment that says that the United States will not deprive life, liberty, so on and so forth.

CONAN: Though Congress did pass a law saying the United States - the commander in chief was authorized to go anywhere in pursuit of al-Qaida.

BRUCE: That is not a constitutional declaration of war.

CONAN: All right. Bruce...

BRUCE: The point being is, I think, it is - it will be interesting to hear court arguments on this.

CONAN: The court did hear an argument, by the way, from - in a suit brought by Mr. Awlaki's father when he was placed, reportedly, on this list, and the judge threw the case out.

BRUCE: And now we've taken the next step of eliminating. By the way, I don't think it's necessarily a bad thing that he has stopped being a participant in the land of the breathing.

CONAN: All right. Bruce, thanks very much for the call. We will end with this email from Joe in Minneapolis. I'm glad Mr. Awlaki is gone. He's a clear and present danger to the U.S. Salman Rushdie really - he stated the man is clearly guilty of treason against his country, a capital offense, according to the Constitution. I'd like to see some sort of authorizing warrant for Mr. Awlaki's hit from a member of the independent judicial branch that would have enabled the balance of power to prevent any branch from singlehandedly overstepping its constitutional bound without oversight from one of its peer branches.

And we'd like to thank all of you who emailed and called, and we're sorry we could not get to all of your calls. And again, if you go to our website at npr.org, click on TALK OF THE NATION, you can find the full text of the editorials from which we quoted earlier today.

Tomorrow, we'll look at what's behind a growing number of drug shortages, not just for cancer drugs but other drugs, too, around the country, and about decisions over who gets what once supplies are short. This is TALK OF THE NATION from NPR News. I'm Neal Conan in Washington.

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