The Obama administration has lowered another legal barrier shielding Americans from extrajudicial punitive action by their own government, in this case authorizing the CIA to kill a US citizen suspected of having ties to al-Qaeda in Yemen and links to two attacks inside the United States last year.
Anwar al-Awlaki, a Muslim cleric born in New Mexico but now living in Yemen, may be the first US citizen targeted for assassination by the CIA under a counter-terror policy established by President George W. Bush and since embraced by President Barack Obama.
Awlaki was previously viewed simply as an Islamic preacher espousing a radical religious viewpoint, but the reassessment of his status began last year when it was disclosed that Army Maj. Nidal Hassan had been communicating with Awlaki via e-mail before the Army psychiatrist allegedly shot and killed 12 soldiers and one civilian at Fort Hood in Texas last November.
A month later, on Christmas Day, a young Nigerian man, Umar Farouk Abdulmutallab, tried to blow up a Northwest Airlines jetliner over Detroit, and US intelligence officials revealed that Abdulmutallab had been a student of Awlaki’s in Yemen. Though Awlaki denied ordering the attack, word began to spread that the CIA was adding Awlaki to a list of about two dozen people targeted for assassination.
Multiple press reports now indicate that Awlaki has been put on the death list, a move that the Obama administration justifies by claiming to have information that Awlaki has shifted from denouncing the United States to plotting violent acts against Americans.
An unnamed US official told the Washington Post that Awlaki "recently became an operational figure for al-Qaeda in the Arabian Peninsula" who is "working actively to kill Americans, so it's both lawful and sensible to try to stop him." Another US official told the Post that Awlaki is in "everybody’s sights."
"The danger Awlaki poses to [the United States] is no longer confined to words; he’s gotten involved in plots," a US official told the New York Times, adding:
"The United States works, exactly as the American people expect, to overcome threats to their security, and this individual — through his own actions — has become one. Awlaki knows what he’s done, and he knows he won’t be met with handshakes and flowers. None of this should surprise anyone."
After the 9/11 attacks, Bush reportedly signed a classified intelligence finding that authorized the CIA and the US military to target and kill Americans abroad who were suspected of carrying out terrorist plots against the United States or US interests, and who posed an imminent threat.
Former government officials said no Americans were placed on the Bush-era list. However, in November 2002, a CIA Predator drone armed with Hellfire missiles targeted a car driving through the desert in Yemen, killing six alleged al-Qaeda operatives, one of whom was an American citizen, Kamal Derwish.
The CIA’s target was Abu Ali al-Harithi, one of the suspected planners of the attack on the USS Cole in 2000, but the CIA knew Derwish was in the car.
Derwish was associated with an alleged terrorist cell in a Buffalo, New York, suburb known as the Lackawanna Six, a group that Vice President Dick Cheney considered so dangerous that he wanted US troops dispatched to arrest them despite the Posse Comitatus Act of 1878, which generally prohibits the use of armed forces acting in a law enforcement capacity.
Awalki reportedly had already been placed on a separate, top-secret assassination list maintained by the US military’s Joint Special Operations Command (JSOC), meaning he’s now a military and CIA target.
While the Bush and Obama administrations have justified these lethal policies under the laws of war which permit countries to use lethal force against enemy combatants, the chief concern is that these death lists have been used to kill individuals far from any battlefield or when they are not presenting an immediate threat.
As for Awlaki, it is also unclear what new intelligence exists that would justify US intelligence and military forces to hunt him down and kill him without any judicial review.
In February, constitutional law professor Jonathan Turley noted that "as reaffirmed in cases like Reid v. Covert, 354 U.S. 1 (1957), American citizens have the same protections" whether on US soil or not.
"In that case, two American women who murdered their husbands on American military bases abroad were given the same protections under the Fifth Amendment regardless of the fact that they were located and committed the crimes abroad," Turley said.
The law professor also argued that government-sanctioned killing of a US citizen without any judicial review created a dangerous precedent. "If a president can kill US citizens abroad, why not within the United States?" Turley asked. "What is the limiting principle beyond the practicalities?"
There’s also the question of how reliable the incriminating intelligence might be. Last week, for instance, as Truthout first reported, the Obama administration backed away from claims of terrorist activity that the Bush administration had used to justify torturing Abu Zubaydah after he was captured in 2002.
Intelligence analysts freely acknowledge that much of their information is not the sort of evidence that would stand up in a court of law.
Jonathan Manes, a legal fellow with the ACLU's National Security project, said the Obama administration needs to explain to the American public the standard "the government uses and how much evidence is required when it decides, in the name of self-defense or otherwise, to place US citizens on a kill list."
"In order to assess the moral, legal and strategic implications of the program, the public also needs information about how the program is overseen and what its consequences are in terms of civilian casualties," Manes added.
The Los Angeles Times has described the methodology used in selecting people for targeted killings. "New targets are drafted by analysts in the CIA's Counter-Terrorism Center," the newspaper reported. "Former officials said analysts typically submit several new names each month to high-level officials, including the CIA general counsel and sometimes Director Leon E. Panetta."
The New York Times reported that the presidential authority for these killings derives from congressional approval for use of military force against al-Qaeda and thus skirts longstanding bans on political assassinations.
"People on the target list are considered to be military enemies of the United States and therefore not subject to the ban on political assassination first approved by President Gerald R. Ford," the Times wrote.
Rep. Jane Harman, a California Democrat who chairs the Homeland Security Subcommittee on Intelligence, told Reuters that Awlaki is "probably the person, the terrorist, who would be terrorist No. 1 in terms of threat against us."
Harman conceded that Awlaki's US citizenship "certainly complicated" his placement on a death list. Still, she said, President Obama "made very clear that people, including Americans who are trying to attack our country, are people we will definitely pursue... are targets of the United States."
Dennis Blair, the Director of National Intelligence, told a House Intelligence Committee hearing in February that the CIA can assassinate Americans abroad suspected of being involved in terrorism.
"If we think that direct action will involve killing an American, we get specific permission to do that," Blair said, adding that the criteria to be targeted for killing includes "whether that American is involved in a group that is trying to attack us, whether that American is a threat to other Americans."
"Those are the factors involved," Blair said. "We don't target people for free speech. We target them for taking action that threatens Americans or has resulted in it."