The US government wanted to kill Anwar al-Awlaqi long before a CIA-JSOC drone strike actually succeeded in doing so on September 30, 2011. Before and after that deadly strike, al-Awlaqi’s kill-ability has been a bone of contention because he was a US citizen. The cleric, who had become radicalized as the “war on terror” wore on, moved to Yemen, his ancestral homeland, in late 2004. There, he became a prolific jihadi propagandist on the Internet.
‘Abd al-Rahman al-Awlaqi, left, and his father Anwar, right.
On January 27, 2010, the Washington Post reported that he and at least two other citizens had been designated for extrajudicial execution. The listing of al-Awlaqi came on the heels of two incidents to which he was reportedly linked: the November 5, 2009 armed rampage by Maj. Nidal Malik Hasan at Fort Hood in Texas that killed 13 and wounded 29 people, and the December 25 attempt by a Nigerian, Umar Farouk Abdulmutallab, to detonate a bomb hidden in his underwear on a transatlantic flight bound for Detroit. Al-Awlaqi’s alleged involvement in these crimes raises the question of why the government never indicted the cleric if it actually had information implicating him.
After the Post article reporting that al-Awlaqi had been put on the targeted killing list, the American Civil Liberties Union and the Center for Constitutional Rights filed a lawsuit in August 2010 on behalf of al-Awlaqi’s father Nasir to challenge executive authorization for extrajudicial execution of a citizen (al-Aulaqi v. Obama). The case was dismissed that December when the court ruled that Nasir al-Awlaqi lacked standing, since the government had no intention of killing him, just his son.
Meanwhile, on July 16, 2010, the Justice Department’s Office of Legal Counsel (OLC), which functions as the “government’s lawyer,” produced a memorandum laying out the legal rationales for the killing of al-Awlaqi. That memo remained a closely guarded secret until last week, when the government finally released it in heavily redacted form. Among the redacted portions is the first 11 pages laying out the factual basis for determining that al-Awlaqi had gone from inspirational to operational and become an “enemy combatant” and leader of al-Qaeda in the Arabian Peninsula (AQAP), which is at war with the United States.
Leaving aside the quality of the OLC memo’s legal arguments, the underlying premise that killing al-Awlaqi in a military operation was a legal option depended on information provided by unnamed “high government officials” who “have concluded, on the basis of al-Aulaqi’s activities in Yemen, that al-Aulaqi is a leader of AQAP whose activities in Yemen pose a ‘continued and imminent threat’ of violence to United States persons and interests” (p. 21).
The phrase “have concluded” sounds so authoritative. The secrecy that guards such intelligence makes its veracity literally unarguable. But what about the “intelligence” and the “legal logic” for the October 14, 2011 drone strike that killed al-Awlaqi’s 16-year old son ‘Abd al-Rahman, as well as his 17-year old cousin and five others while they were dining in an open-air restaurant? In the immediate aftermath of that attack, officials claimed that ‘Abd al-Rahman was a 21-year old militant. After his grandfather produced the boy’s birth certificate proving the lie, the administration reverted to its default position of asserting that CIA operations are classified and cannot be commented upon. Indeed, the Obama administration has never produced an official justification or explanation about the killing of ‘Abd al-Rahman (who, by the way, was also a US citizen).
The OLC memo offers nothing in the way of understanding intelligence mistakes, which are numerous, as reflected in the large number of civilians who have been killed in drone strikes. ‘Abd al-Rahman’s killing is a particularly salient example of why it behooves us to be skeptical about the assurances of “high officials” who “have concluded” that death-causing intelligence is valid.
So far, federal courts are no help. On April 4 of this year, Nasir al-Awlaqi lost a second lawsuit, Al-Aulaqi v. Panetta, challenging the government’s constitutional right to kill US citizens without trial (and, in the case of his grandson, for no stated reason). As one of his lawyers, Maria LaHood, said after hearing of the judge’s dismissal of the case: “It seems there’s no remedy if the government intended to kill you, and no remedy if it didn’t.”
