Secret U.S. memo sanctioned killing of Aulaqi

In the decade before his death, Anwar al-Awlaki served as an imam at two American mosques attended by 9/11 hijackers. He corresponded regularly with Nidal Hasan before the Army major went on his murder spree at Fort Hood in November 2009. He was in touch with Umar Farouk Abdulmutallab, who nearly brought down a jetliner over Detroit the following month. His sermons were cited as an inspiration by attempted Times Square bomber Faisal Shahzad. He said that "jihad against America is binding upon myself, just as it is binding on every other able Muslim."


Now a Hellfire missile fired from an American drone somewhere over Yemen has brought Awlaki's career of incitement to an abrupt close. Lest you suppose this is a blessing for civilization, certain self-described civil libertarians would like a word with you.


The caviling over Awlaki's death began almost the moment the news was announced yesterday. "Al-Alwaki was born here, he's an American citizen, he was never tried or charged for any crimes," said Ron Paul, the Republican Presidential candidate, in New Hampshire yesterday. "To start assassinating American citizens without charges—we should think very seriously about this." In the Guardian, Michael Ratner of the Center for Constitutional Rights called Awlaki's killing "extrajudicial murder."


Then there is the view that the U.S. cannot carry out strikes against terrorists in countries that, like Yemen, are not at war with us. Last year, Awlaki's father filed a case in federal court on those grounds. Federal Judge John Bates dismissed it by noting that "there are circumstances in which the [President's] unilateral decision to kill a U.S. citizen overseas" is "judicially unreviewable."


More recently, however, the New York Times has reported that State Department legal adviser Harold Koh is making the case within the Administration that while the U.S. can target terrorists in places like Yemen, it must also "justify the act as necessary for its self-defense—meaning it should focus on individuals plotting to attack the United States."


Mr. Koh has his current job in part because he made a name for himself as a vociferous critic of Bush Administration antiterror policy, so maybe it's no surprise that he should now serve as this Administration's in-house scold. Yet the Authorization for Military Force Against Terrorists adopted by Congress a week after 9/11 (on a 420-1 vote in the House and 98-0 in the Senate) gives the President broad authority to use force against "those nations, organizations or persons he determines planned, authorized, committed or aided" the attacks "in order to prevent any future acts of international terrorism against the United States."


A second American killed in Friday’s attack was Samir Khan, a driving force behind Inspire, the English-language magazine produced by al-Qaeda in the Arabian Peninsula. An administration official said the CIA did not know Khan was with Aulaqi, but they also considered Khan a belligerent whose presence near the target would not have stopped the attack.


The circumstances of Khan’s death were reminiscent of a 2002 U.S. drone strike in Yemen that targeted Abu Ali al-Harithi, a Yemeni al-Qaeda operative accused of planning the 2000 attack on the USS Cole. That strike also killed a U.S. citizen who the CIA knew was in Harithi’s vehicle but who was a target of the attack.


The Obama administration has spoken in broad terms about its authority to use military and paramilitary force against al-Qaeda and associated forces beyond “hot,” or traditional, battlefields such as Iraq or Afghanistan. Officials said that certain belligerents aren’t shielded because of their citizenship.


“As a general matter, it would be entirely lawful for the United States to target high-level leaders of enemy forces, regardless of their nationality, who are plotting to kill Americans both under the authority provided by Congress in its use of military force in the armed conflict with al-Qaeda, the Taliban, and associated forces as well as established international law that recognizes our right of self-defense,” an administration official said in a statement Friday.


President Obama and various administration officials referred to Aulaqi publicly for the first time Friday as the “external operations” chief for al-Qaeda in the Arabian Peninsula, a label that may be intended to underscore his status as an operational leader who posed an imminent threat.


A Justice Department spokeswoman declined to comment. The administration officials refused to disclose the exact legal analysis used to authorize targeting Aulaqi, or how they considered any Fifth Amendment right to due process.


Otherwise, the groups argued, such a killing would amount to an extrajudicial execution and would violate U.S. and international law.


“International human rights law dictates that you can’t unilaterally target someone and kill someone without that person posing an imminent threat to security interests,” said Vince Warren, executive director of the Center for Constitutional Rights. “The information that we have, from the government’s own press releases, is that he is somehow loosely connected, but there is no specific evidence of things he actualized that would meet the legal threshold for making this killing justifiable as a matter of human rights law.”


ACLU lawyer Ben Wizner said that Aulaqi had been targeted for nearly two years and that the government would appear to have a very elastic definition of imminent threat.


The former senior intelligence official said the CIA did reviews every six months to ensure that those targeted for possible killing remained threats as defined by law and presidential findings.


The administration describes al-Qaeda in the Arabian Peninsula as an associated force of the original terrorist group that was led by Osama bin Laden until he was killed, making AQAP subject to congressionally authorized military force. Officials said Aulaqi was part of an enemy force and posed an ongoing, immediate danger.




Staff writer Mary Beth Sheridan and staff researcher Julie Tate contributed to this report.