International Execution

Anwar Al-Awlaki

It is being reported this morning that an American drone attack in Yemen killed Anwar al-Awlaki, an American-born cleric tied to Al Qaeda.

I previously wrote about the legal challenge brought by his father challenging the Obama Administration's policy of targeting an American citizen for assassination.  I was particularly incensed by the criticism of the legal team that brought the lawsuit as having crossed some line by representing a suspected terrorist. 

The judge ultimately dismissed the case without reaching the merits, finding that the father did not have standing to sue.  But it is worth taking note of the New York Times Dec. 12th editorial entitled Judicial Scrutiny Before Death, which argued that despite winning in court, "the administration should remain very worried about the moral implications of its policy," which the district court judge "sharply questioned" despite dismissing the lawsuit.  The Times noted that, as the judge wrote, one of the many unanswered questions remaining is whether "the Executive [can] order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization”

The Times stressed the importance of judicial scrutiny, and suggested creating a court that operates in secrecy, "like the Foreign Intelligence Surveillance Court, which authorizes wiretaps on foreign agents inside the United States."  Thus, at minimum, "the government could present its evidence to this court behind closed doors before putting a terror suspect on its target list."

After the death of Osama bin Laden, I wrote:

Of course the world is better off without Osama bin Laden, and it is far better that "the face of the Arab world in America’s eyes," as Jon Stewart said, will no longer be bin Laden's, but instead will be "the young people in Egypt and Tunisia and all the Middle Eastern countries around the world where freedom rises up.”  But, while President Obama declared that "justice has been done," if it turns out that bin Laden could have been taken into custody alive without immediate risk to life when more than 20 Navy SEALS entered his compound, then his killing was retribution, not justice.

"Proper justice," as Daniele Archibugi explains, "is made in the tribunals, not outside them."  Perhaps there was no choice, but it would have been "much more judicially satisfactory," if less immediately gratifying, "to have arrested bin Laden," and to give responsibility to the courts, "rather than to a commando" to judge and punish.

As human rights lawyer Geoffrey Robertson states, justice "requires a fair trial before an independent court."  . . .  What should not be forgotten, as Karen Greenberg reminds us, is that the effect of bin Laden's reign of terror on the United States was to pervert our notion of justice: "Under the rubric of fighting terror, the United States rolled back its hallowed notions of civil liberties, its embrace of modernity, and even its reliance on its own courts. We delved into medieval-style torture, we reneged on our courts as a viable option for trying terrorists, and we blindly took aim at a religion, rather than its disaffected hijackers."

This Administration's "relentless program of wiping out top al-Qaida leaders around the world through unilateral covert strikes" is deeply troubling, both morally and legally.  More so for Al-Awlaki, an American citizen, who was never indicted and not afforded the due process rights to which American citizens are entitled.  As Glenn Greenwald put it:  "he was simply ordered killed by the President: his judge, jury and executioner."

Jameel Jafar,  the A.C.L.U.’s deputy legal director, argued that the government’s targeted killings violated United States and international law.

“As we’ve seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts.”