When a Predator drone killed al Qaeda propagandist Anwar al-Awlaki in a lawless area of Yemen recently, Americans lined up in three camps:  happy that they thought a terrorist was dead, outraged that they thought an American citizen was assassinated, or uncomfortably approving, or ambivalent about the fact that an apparent al Qaeda leader was snuffed.  The discussion of his death at the same time evoked and begged the broader question that was not made express in most debates around the legality or propriety of killing him:  what is the limiting principle in America's continuing military conflict with the terrorist group al Qaeda?  Critiques of killing al-Awlaki, to me, are necessarily much more about that, just as supporting killing him fails to articulate whether there is a limiting principle in the conflict, and then, what it is in particular.  This piece steps through the (now fairly familiar) arguments over al-Awlaki, and suggests an answer to that broader and more important question, to which we looked in the discussion after his death through a glass darkly, if at all.  Thus, we consider:  (1) whether it is novel or surprising that Obama ordered the death of al-Awlaki in the first place; (2) whether al Qaeda leaders should be considered as subject to criminal justice or military assault, and how the correctness of killing al-Awlaki is mostly a function of which premise you choose; (3) whether American forces could legally attack al-Awlaki; and (4) why discomfort over his killing points to the larger and far more important question of what limiting principles there are or should there be in America's undeclared war on al Qaeda, now in its eleventh year. 

Was It a Surprise or Departure From Policy For President Obama To Order the Death of al-Awlaki?

Given the considerable evidence that al-Awlaki fostered terrorism, the short answer is absolutely not.  In the Presidential campaign in 2008, Candidate Obama spoke without controversy or any contradiction within the Democratic Party that I can remember, in favor of tracking down terrorists around the world and killing them.  He set out a doctrine of striking at terrorists, and al Qaeda in particular, just as if we were at war with a nation-state.  ("America is at war with terrorists who killed on our soil.")  Obama's stated plan for striking at al Qaeda was one without regard for national borders wherever it or its leaders hide, in wild and remote physical spaces beyond government.  Describing the Taliban striking in Afghanistan, and then holing up in Pakistan, unchecked by Musharraf or the ISI, Obama stated: 

"As 9/11 showed us, the security of Afghanistan and America is shared.  And today, that security is most threatened by the al Qaeda and Taliban sanctuary in the tribal regions of northwest Pakistan.  Al Qaeda terrorists train, travel, and maintain global communications in this safe-haven.  The Taliban pursues a hit and run strategy, striking in Afghanistan, then skulking across the border to safety.  This is the wild frontier of our globalized world.  There are wind-swept deserts and cave-dotted mountains.  There are tribes that see borders as nothing more than lines on a map, and governments as forces that come and go.  There are blood ties deeper than alliances of convenience, and pockets of extremism that follow religion to violence.  It's a tough place.  But that is no excuse.  There must be no safe-haven for terrorists who threaten America.  We cannot fail to act because action is hard…. But let me make this clear.  There are terrorists holed up in those mountains [in Pakistan] who murdered 3,000 Americans.  They are plotting to strike again.  It was a terrible mistake to fail to act when we had a chance to take out an al Qaeda leadership meeting in 2005.  If we have actionable intelligence about high-value targets and President Musharraf won't act, we will."  

Obama also suggests with similar language that he would "take down terrorist networks" from Indonesia to Africa.  In another place in the speech, Obama uses "taking out terrorists" to mean "capture or kill."

Anyone who heard all this understood that Candidate Obama would treat al Qaeda as something America is at war with; that he would, like President Clinton in 1998, strike preemptively at its leadership across national borders.  Obama's 2007 speech defines al Qaeda as an enemy presently planning terrorist attacks on America or Americans.  It defines leadership in al Qaeda, again like President Clinton did in 1998, as a sufficient basis to strike with deadly force.  Obama also describes as a military goal destroying al Qaeda's ability to have a space in which it can "train, travel and maintain global communications."  From this, it's pretty clear that leaders of al Qaeda will be killed wherever they are found, as enemies in an undeclared but real asymmetric war between the United States and AQ.  ("Groups affiliated with or inspired by al Qaeda operate worldwide.")  Candidate Obama also separately emphasized that national borders were an antiquated limit on war-fighting, deploring the Iraq War as an example of "[a] rigid 20th Century ideology that insisted that the 21st century's stateless terrorism could be defeated through the invasion and occupation of a state."  There is a lot of foreshadowing of each of the elements of killing al-Awlaki here:  (1) that the U.S. is at war with al Qaeda; and (2) that leadership of al Qaeda is fair game anywhere, anytime.  

Critics of the President's recent action will correctly note in his 2007 text that he pledged to "restor[e] our values," which the critics correctly note Obama describes at times in terms of civil liberties.  In the 2007 speech, though, "our values" have nothing to do with compromise in conflict with attacking al Qaeda.  Instead, Candidate Obama suggests that we will redeem American values by closing Guantanamo, rejecting torture, bringing terrorists to trial.  Other than standing trial when captured, Obama suggests no particular interest in the civil liberties of al Qaeda leadership figures or fighters.  Read it and see.  Civil liberties means FISA, it has to do with warrantless searches at home.  It does not have to do with claimed civil rights, if any, of the leadership of al Qaeda.

And does this really have anything to do with Barack Obama, or does Obama's action simply carry forward a de facto bipartisan consensus from the 2008 campaign to carry forward transnational military strikes against al Qaeda?  Most everyone who voted in the 2008 Democratic primary voted for Obama or his current Secretary of State, Hillary Clinton.  Consider this essay, which claims that in the wake of 9/11, Senator Clinton asserted that any country providing aid and comfort to al Qaeda "will now face the wrath of our country."  Claiming a right to attack any country permitting al Qaeda to operate within it, a fortiori, justifies attack on the areas of the country then harboring al Qaeda.  (Consider also that the essay citing then-Senator Clinton's statements, from www.antiwar.com, no less, describes a "broad consensus" after 9/11 "that the United States should go after al-Qaeda cells and their leadership.")  Consider this March 2007 New York Times interview, in which, when asked how she would wind down the Iraq War, Senator Clinton responded by finding "vital national security interests" in "whether you have a failed province or a region that serves as a petri dish for insurgents and al Qaeda."  In July 2007, Candidate Clinton pledged that even in withdrawing troops from overseas, she would "order specialized units to engage in narrow and targeted operations against al Qaeda and other terrorist organizations in the region."  This sounds precisely like Joe Biden's 2009 plan for a lighter footprint in Afghanistan and a greater emphasis on more narrowly conceived lethal strikes by Special Forces or CIA at terrorist groups, interestingly beyond al Qaeda.  

In making the case that President Obama has somehow entered terra incognita in dispatching a terrorist leader, Greenwald doth protest too much.  President Obama's use of Predator drones to attack identified al Qaeda leaders or cells is exactly what he said he would do, and what other Democrats seem to indicate they would do, before the 2008 election.  To pretend otherwise is fatuous.  Since charges that Truman lost China, Democrats have been at pains to burnish their hawk credentials.  Think staunchly antiCommunist JFK in the Senate.  Think LBJ refusing through 1964 to clarify what he would do in Vietnam, and the strong response to the Gulf of Tonkin incident.  Think of Bill Clinton launching cruise missiles at Osama bin Laden in 1998, without prior overflight permission from Pakistan or Afghanistan.  Think John Kerry claiming (correctly) that the U.S. should have put boots on the ground quicker to seek bin Laden in September 2001.  The history of Democratic Presidential candidates in our lifetime is almost universally that of reassuring the populace that they are, if not hawkier-than-thou, they are at least equally hawky.  And Obama's statements about al-Qaeda were there for all to see.  The Greenwald/ACLU position did not command any attention or support in the 2008 Presidential election.  That doesn't make it right (I'll get to that soon), but it hardly makes it surprising or novel. 

Should We View al Qaeda Leaders Through a Criminal Law or Military Prism?

The entire discussion of whether one believes al-Awlaki can be killed centers around which of two opposed premises you pick about members or leaders of al Qaeda:  (a) that they are military targets and can be killed overseas; or (b) that they are subject at all times and places to the American criminal justice system.  Glenn Greenwald, unsurprisingly, picks (b), and as you can see in his writings, everything falls neatly into place from there.  To the Greenwaldians, not only was it wrong to kill al-Awlaki with military force, but likewise bin Laden, who, they argue, should have been captured.  Thus, to Greenwald, killing bin Laden is not defense against terrorist attacks, nor is it a military attack against a military figure, it is an illegal assassination.  This is a perspective with which some human rights lawyers disagree, on the basis that bin Laden was engaged in leading the operations of al Qaeda, a military force, and had not surrendered himself.  In a blog just after bin Laden was killed, Greenwald argued that bin Laden's killing violated the Democratic Party's supposed position that terrorism should be dealt with primarily as a criminal law enforcement problem and not through a war paradigm.  Greenwald shows the lack of force behind that claim when he cites it, oddly, to George Will discussing John Kerry.  If one asks John Kerry himself what he thinks about killing bin Laden or al-Awlaki, you get a different answer.

Once one decides that a criminal law enforcement paradigm must control dealing even with al Qaeda leaders, one can basically repeat the same point -- that killing violates legal norms -- by repetitiously cataloguing the ways in which killing bin Laden does not fit the paradigm of criminal law.  The arguments are, essentially that:  (1) that no criminal court adjudicated al-Awlaki's guilt, and that the Fifth Amendment requires such an adjudication; and (2) al-Awlaki has some First Amendment rights that were abridged by the Predator drone strike (Greenwald here off-topically cites a prior column criticizing the suggestion that people attending a treasonous speech should be arrested).  To these points, Greenwald and those who echo him add the tautologies that the killing was an "assassination" (that's illegal, right?), and "murder" (hey, isn't that illegal too?) and "extrajudicial" to boot.  (Isn't everyone killed in a war killed extrajudicially?)  The entire set of points reduces to the speaker's assertion that you can only think of bin Laden (or al-Awlaki) as civilians requiring arrest and not military targets.

But if you favor the military paradigm in dealing with al Qaeda, as does, say, the United States Congress, the point that killing a senior al Qaeda leader is "extrajudicial" and not pursuant to trial, while true, is beside the point.  For in the September 18, 2011 Authorization of the Use of Military Force, Congress committed to the discretion of the President the authority to hunt down and militarily attack "organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001… in order to prevent any future acts of international terrorism against the United States by such…organizations or persons."  Notably, the AUMF is not restricted to people involved in 9/11; it allows hunting the responsible organization(s) to preempt future attacks.  In this respect, Greenwald, formerly a practicing lawyer, is trying to do precisely what al-Awlaki's father did when he filed a civil suit complaining that his son is a military target:  to use legal arguments to attack decisions and resolve questions that are fundamentally political and committed to the political branches to resolve, and which they in fact did resolve.  For precisely this reason, a federal District Court rejected the father's suit to protect his son, citing the political question doctrine.  As a matter of law, including in particular the U.S. Constitution, this outcome is correct.

And thus Greenwald's arguments that attacking al Qaeda should not be viewed through a military lens are one, long sustained attempt to talk past and around the existence of the AUMF.  You see Greenwald misstating the law by ignoring the AUMF here, when he classes those who approve of bin Laden's death into two camps:  "(1) those, largely on the Right, who believe the U.S. is at War and anything we do to our Enemies is basically justifiable; and (2) those, mostly  Democrats, who reject that view -- who genuinely believe in general in due process and adherence to ostensible Western norms of justice" yet who view bin Laden as "such singular Evil…that they're…willing to waive away their principles just for him:  creating the Osama bin Laden exception."  To the Greenwaldian, there are only lawless extremists, or principled people who ordinarily would not kill al Qaeda leaders with military force but who abjured the rule of law in a Tourette's like fit for bin Laden alone.  Yet as Adam Serwer wrote, if the AUMF means literally anything, it means the President can find and kill bin Laden.  Next, we explore why finding and killing al-Awlaki is the same.

But Can America Legally Kill Citizen al-Awlaki, For Leading Terrorism Against the U.S. For al Qaeda in the Arabian Peninsula?

The short answer is yes, because, though a birthright citizen, he took up armed struggle against the U.S.  He was, as Alexander Meleagrou-Hitchens wrote in what is the definitive treatment to this point of al-Awlaki's career, "a senior member of al Qaeda in the Arabian Peninsula."  

Anyone who wants to say that there is no hard intelligence or evidence of al-Awlaki being involved in AQAP terror plotting is wrong and uninformed.  How about this e-mail?  "Our highest priority is the US. Anything there, even on a smaller scale compared to what we may do in the UK would be our choice. So the question is with the people you have is it possible to get a package or a person with a package on board a flight heading to the US?"  That's an e-mail from al-Awlaki to Rajib Karim, a computer specialist with British Airways who al-Awlaki was working with in an attempt to commit terrorist acts in the U.S.  Karim was convicted of conspiring with al-Awlaki.  Check out this supposed counterpoint op-ed in the New York Times by doctoral candidate Gregory Johnsen, which pooh-poohs the possibility of killing al-Awlaki.  He's not the actual leader of AQAP, you see -- "he has always been a minor figure in al Qaeda."  If that is the argument friendly to al-Awlaki's position, then with friends like that, he hardly needed enemies.  Taking Johnsen's judgment at face value, al-Awlaki was a member of al-Qaeda in the Arabian Peninsula who was so insignificant that he didn't run all of AQAP, but who was nonetheless found by a jury in a criminal trial to have conspired to blow up jets.  

As to the underpants bomber, Umar Farouk Abdulmutallab, who failed to blow up an airliner nearing Detroit with explosives obtained in Yemen, we do not have access to the transcripts of Abdulmutallab's interviews with American interrogators.  We do know, however, that AQAP claimed responsibility for that failed attack.  We know that Awlaki has boasted that Abdulmutallab was his "student," and I do not think arguing that he received instruction from AQAP's top jihadist propagandist al-Awlaki that was unrelated to his jihadist mission passes the straight-face test.  (Digression for the Greenwaldians:  check out the Supreme Court's decision in Employment Division v. Smith (1990) (holding that there is no free exercise exemption from criminal laws of general application; meaning here, there is no First Amendment right to jihadi instruction as some sort of "free exercise", either in derogation of criminal law or the law of war).  Another thing we know is that in asserting the state secrets doctrine in al-Awlaki's father's case, Director of National Intelligence James Clapper filed an unclassified declaration with one tantalizing excerpt derived from questioning:  that "al-Awlaki personally instructed Abdulmutallab 'to detonate en explosive device aboard a U.S. airplane."   I am not sure what basis there is to disbelieve this statement other than desire to disbelieve either whatever the government says, or whatever facts make al-Awlaki an operational figure.

And consider this.  Clapper's declaration also states that al-Awlaki pledged an oath of loyalty to Nasir al-Wuhaishi, now the leader of AQAP and for four years the personal secretary to bin Laden.  Consistently, when Yemen indicated its interest in apprehending al-Awlaki and putting him through a criminal trial (wait, I thought Greenwald wanted that!), the same Nasir al-Wuhaishi, warned publicly that AQAP was protecting al-Awlaki and that arresting him would be punished by AQAP with reprisals.  This is consistent with the American government's explanation of his having a role in al Qaeda, as is, indeed, all of the foregoing evidence and more in Hitchens' paper than I have excerpted.

Finally, the Fort Hood shooter, Nidal Malik Hasan, like Abdulmutallab and Karim, was in contact with al-Awlaki before a planned crime.  Like Abdulmutallab, al-Awlaki called Hasan his "student" and praised his actions afterward for their successful lethality.   This is unsurprising, as al-Awlaki blogged (see Hitchens at p.72), "if a Muslim kills each and every civilian disbeliever on the face of the earth he is still a Muslim and we cannot side with the disbelievers against him."  And before Hasan murdered, al-Awlaki had confirmed to him that is proper to kill innocents for the cause of jihad.  As al-Awlaki put it, he "blessed the act."  If you find that to be anything meaningfully different from a military authorization to an officer of inferior rank, then I'd respectfully suggest you are giving too much weight to religious trappings in the fact-pattern.  Again, in our law, religion is not a defense to crime.  It makes no difference whether a terrorist-organization atheist tells an outsider atheist that it's ok to kill, and then they do, or if it's cloaked in the words of a radical priest in Northern Ireland or a radical Imam in Yemen.  The point is the continued contact with, involvement in, approval in advance of, and praise afterward, of murder.  If this were the only example of al-Awlaki fostering terrorism, this would be a different matter.  It is not.

This leaves the matter of citizenship, the shiny penny in the argument about al-Awlaki.  To me, this is not a distinction that matters either in principle or law.  A small number of Americans also fought for Nazi Germany during World War II.  It cannot seriously be argued that U.S. forces were required to apprehend those Americans separately, and subject them alone to criminal trials for treason, while the Germans fighting around them could be shot as enemy soldiers.

By invoking the Fifth Amendment, Greenwaldians create the mistaken impression that it Constitutionalizes protections and rights to trial for citizens as opposed to noncitizens.  This is wrong.  As another liberal lawyer explains correctly within a hyperbolic antiGreenwald screed, the Fifth Amendment provides that "no person" can be deprived of liberty without due process.  That protection extends to citizens and noncitizens alike who are subject to the power of the United States government, and it does not apply to war.  Yes, folks, killing bin Laden and al-Awlaki is subject to the same analysis.  Greenwald is consistent and believes both deaths are unconstitutional.  While he gibes at people who view the bin Laden example as exceptional, the tension between the cases runs both ways.  Meaning that, once you agree that bin Laden can be killed as an active senior leader of al Qaeda, then what is the distinction that saves al-Awlaki?  There is none.  Indeed, bin Laden was killed after a firefight on site, and did not surrender himself.  Al-Awlaki was under Yemeni indictment and did not surrender himself to Yemeni or U.S. authority.  He is another fugitive terrorist leader, indeed one with more recently successful terrorism, and more foiled plots, directly to his name.

Toward Limiting Principles in the War on al Qaeda

I am not sure what good it does to demonstrate that there is a factual basis to explain the killing of Anwar al-Awlaki.  It feels like a true but empty exercise, because it misses the point, which is to consider with our eyes wide open where we are in American history.  We are in the middle of permanent war.  While America cannot declare war on a tactic, a rogue organization, or on the grievance that fundamentalist radical Islam has with America, Congress did authorize the President to use the military to attack, even preemptively, organizations responsible for 9/11.  That includes al Qaeda, obviously.  It amounts to an undeclared war, which is the hardest kind to end, as we have seen.  And there is no end to it in sight.  During the past eleven years, the American war effort in Afghanistan and Iraq has cost the nation more than $1.26 trillion.  My reaction to learning of al-Awlaki's death, honestly, was that it was the second person who I actually knew of and felt comfortable was an appropriate death in the asymmetric conflict we have waged since 9/11.  I would also be fine with Zawahiri being killed.  While they yet send the Abdulmutallabs of the world strapped with bombs to kill, while they induce those vulnerable to their message to kill, it makes some sense to me to target the operational leaders of al Qaeda as targets.  We have seen 100,000 Iraqi civilians die in a war that should never have been fought.  That bothers me.  Bin Laden and al-Awlaki do not.  Because of the scale of civilian death in war, because of the hellish qualities of war Barack Obama correctly warned of in 2002, and yes, even because we cannot afford endless war, we need a principle that avoids the former category and scale of deaths, so we don't create propaganda for more al-Awlakis, and fuel a cycle of endless retaliation.  

That is the hidden, important question we all avoid in our discussions of military versus criminal solutions, and which is not posed cleanly by the government authoring a memorandum justifying the killing of al-Awlaki standing alone.  The question is what is the limiting principle to our thus-far unending involvement in the undefined war.  Greenwald grapples with this question, of where our limit lies.  His answer is that all drone strikes against al Qaeda transgress criminal laws.  While absolutist and not likely to persuade the American public, his is one answer.  It is distinctly unpersuasive because he maintains it even where justice indicates to most others that killing bin Laden was simply right, and also legal.  But for Democrats, what is the real alternative to Greenwaldism?  The suggestion that we must fight a War on Terror until we win, as I have written before, is a child's dream of true safety.  Because one cannot eradicate all radical America-hating, a dream of total victory likewise fails to contain a practical limiting principle.  As LBJ found in 1964, it is all too easy to defer hard questions about why we are in an intervention, or to give easy, hawkish answers to those hard questions.  But we live in a time of increasingly limited financial resources, and are weary in particular of perpetual involvement in Afghanistan.  Between the low approval numbers for the President's handling of Afghanistan, and the persistent modest popularity of Ron Paul on the GOP side, the American people are waiting for someone to suggest a principled limit -- beyond this line we will not cross.  Whether it is once we pull out of Afghanistan, or once a critical mass of al-Qaeda leadership is incapacitated or killed, there needs to be a pivot to less killing.  

In fairness to his critics, I think only President Obama is in a position to lead us to the next place.  He has earned credibility with the right and the center he necessarily lacked on terrorism issues before assuming the Presidency.  We need President Obama to declare a limited victory, and in justification, given that he is a political leader, to trumpet his successes in degrading al Qaeda, and then to accelerate the drawdown from Afghanistan.  We need a doctrine that drones can be used sparingly, if at all, and with high justification in fighting evildoers who are linked to bombings and attacks planned for the U.S.  We need to get out of the business of raining down drones in a wide variety of Middle Eastern countries, for other than depleting our depleted Treasury, most of what we thus do is buy more enmity and war.  We need a smaller, narrower footprint.  And we need someone to explain what that is.  Like President Obama nine years ago, I'm not against all wars, I'm just against dumb wars.  The death toll in Iraq, our weariness in Afghanistan, our successes in degrading al Qaeda with intelligence and drones, and the impossibility of truly winning a War on Terrorism tell me that a widescale military War on Terrorism is a dumb war.  Yes, it's good that a few folks who caused and plotted terroristic deaths in America are dead.  And I'll support strikes against equivalent folks in the future.  But imagine that without an overseas occupation of note, and without the frequency of drone strikes you see today.  Imagine it rare and judicious and provably necessary.  From Occupy to the 2012 Presidential election, and in all our communications with the Congress that gave our Presidents an AUMF and an urging to wage permanent war -- and has not revoked it -- we need as one voice to articulate limiting principles.  Lines between legalistic defeatism and total war.  We have no other choice.