Awlaki vs. Predator

(from The Wall Street Journal, August 13, 2010)

American members of al Qaeda aren’t merely criminal suspects. They’re active enemy combatants who can be targeted like other terrorists.

By David B. Rivkin, Jr. and Lee A. Casey

The American Civil Liberties Union and the Center for Constitutional Rights (CCR) recently launched a legal challenge against the president’s right to kill al Qaeda operatives. If the suit is successful, it will undermine the Constitution’s separation of powers and make it virtually impossible for the United States to successfully defend itself with military force in the future.

Since 9/11, the courts have increasingly encroached on the legitimate war-making powers of both the president and Congress. Federal judges now scrutinize the president’s determinations regarding the detention of enemy combatants and pre-approve wartime electronic intelligence-gathering operations. But the courts have not yet claimed the right to review the president’s decisions regarding whom to attack, or how to carry out an attack. Such determinations are at the very core of the president’s power as commander in chief.

Lawyers from the ACLU and the CCR are mounting their challenge on behalf of the father of Anwar al-Awlaki. Awlaki is an American citizen whom the government believes was connected both to al Qaeda’s abortive effort to blow up an airliner over Detroit on Christmas Day, 2009, and to Nidal Malik Hasan, the U.S. Army major who murdered 13 people at Fort Hood, Texas, last November.

According to published reports, President Obama has authorized the use of Predator drones against Awlaki, who is believed to be based in Yemen. Because of this, the ACLU and the CCR will soon argue in court that Awlaki is a “civilian” located thousands of miles from the “battlefield” in Afghanistan and Iraq, and that he is entitled to due process before he can be attacked. “President Obama,” said the executive director of the CCR, “is claiming the power to act as judge, jury and executioner while suspending any semblance of due process.”

The president is doing no such thing. Like his predecessor, Mr. Obama is fighting a global war against al Qaeda and its allies, who remain determined to strike the U.S. wherever and whenever they can. The battlefield is not limited to Afghanistan or Iraq but may extend to anywhere al Qaeda and its co-belligerents operate, as has always been the case in wartime.

The laws of war permit attacks on the enemy—including on particular enemy combatants—at any time and anywhere they can be found. The limitations on such attacks are only that American forces must comply with the rules of distinction and proportionality (which protect civilians and their property) and respect the rights of neutral countries.

It is this respect for neutral rights that prevents U.S. forces from attacking al Qaeda in the streets of Europe or anywhere else in a country that objects. The ACLU and others who assert that the U.S. is demanding the right to send cruise missiles against men like Awlaki in Paris or Berlin are flat wrong.

Yemen is a different story. Al Qaeda has operated in Yemen at least since it attacked the USS Cole there in 2000, and the Yemeni government has since cooperated with the U.S. (to varying degrees of openness and effectiveness). U.S. forces operate in that country with its tacit approval and have carried out a number of strikes on al Qaeda, including a 2002 missile attack that killed an American citizen thought to be al Qaeda’s liaison to the “Lackawanna cell” of American recruits in upstate New York.

That Awlaki is a U.S. citizen gives him no special immunity from attack. The Supreme Court recognized this more than 60 years ago in the “Nazi Saboteur” case, Ex parte Quirin (1941). The court noted then that “citizenship in the United States of an enemy belligerent does not relieve him from the consequences of belligerency.”

One of those “consequences” is that Awlaki can be attacked and killed by U.S. forces without notice and without a Miranda warning. Al Qaeda operatives and their relatives can’t use the fact that al Qaeda is a decentralized, irregular and unlawful military force to claim “civilian” status. Put another way, combatants do not become civilians (entitled to immunity from direct attack) by refusing to comply with the most basic laws of war, which require them to wear uniforms and carry their arms openly.

Giving judges a role in the targeting process would violate the separation of powers. The Constitution makes the president commander in chief. Whatever limitations exist on that authority regarding how captured terrorists are detained and tried, the Supreme Court has never suggested that decisions on actual combat operations—particularly when and how to attack the enemy—are anything other than discretionary for the president.

Bringing the courts into the targeting process whenever an American citizen is involved would put an even greater premium on al Qaeda’s recruiting efforts in the U.S. If American al Qaeda operatives are entitled to a judicial process before they can be attacked, they become instant human shields for all those around them. This is true whether they are on a conventional battlefield in Afghanistan or engaged in shadowy conflict in Yemen.

This effort is one of the worst causes the ACLU has ever championed. It should be quickly and definitively rejected by the courts.

Messrs. Rivkin and Casey, Washington, D.C.-based attorneys, served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.



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