With the news of yet another tape of extremist American-born cleric Anwar al-Awlaki calling for/praising the murder of American citizens, I began wondering whether these articles bolster the legal merit of the government's argument that they have the authority to kill al-Awlaki without trial, or whether this kind of news merely bolsters the administration's public case for doing so in the court of public opinion. The law is supposed to be king in America, but at the moment other nations are following our example better than we are.
Matthew Waxman, a former Defense Department official during the Bush administration and currently a Council on Foreign Relations fellow, says that "as a legal matter, al-Awlaki's anti-American rhetoric alone -- no matter how nefarious -- can't justify targeting him." But the government appears to be arguing that his operational role in terrorist operations is more than just rhetorical, and his rhetoric may be an important element among others in assessing whether he is a legitimate target."
That's the view of Ben Wittes, a scholar at the Brookings Institution who suggests that where al-Awlaki's rhetoric may cross the line from protected speech into incitement is where it identifies him as a member of al-Qaeda or one of its affiliated groups. “What he’s really saying is, I’m a part of an organization against which Congress has authorized the use of force,” says Wittes, referencing the 2001 AUMF. "If you’re a part of the enemy, you’re a lawful target full stop, even if you’re a cook. That’s what it means to be part of the enemy.”
David Cole, a constitutional law professor at Georgetown University, was more skeptical: "On one hand, the U.S. plainly has the right to target Americans who are actively engaged in fighting against us in the ongoing conflicts in Afghanistan or Iraq. On the other hand, we clearly do not have the right to target people for making speeches supportive of terrorist attacks against us. ... I don't think al-Awlaki could be targeted based on the statements reported in the NYT story."
The administration, Cole says, is doing the American people a disservice by refusing to disclose the legal rational for its use of targeted assassinations. In the case of al-Awlaki, Cole says, "We would need to know a lot more about the substantive standards and the procedures the [government] is using to assess the legality of its actions. While there are obvious reasons not to disclose actionable intelligence, there seems to be much less basis for declining to defend the specific parameters of the program in public."
-- A. Serwer
