Crime or War: Execution or Assassination?

By David K. Shipler

The Obama administration should release the secret Justice Department memo justifying the placement of an American citizen, Anwar al-Awlaki, on the CIA’s kill list. The legal questions are far from clearcut, and the country needs to have this difficult discussion. A good many Obama supporters thought that secret legal opinions by the Justice Department—rationalizing torture and domestic military arrests, for example—had gone out the door along with the Bush administration.


But now comes a momentous change in policy with serious implications for the Constitution’s restraint on executive power, and Obama refuses to allow his lawyers’ arguments to be laid out on the table for the American public to examine. Shakespeare’s line in Hamlet on the “insolence of office” comes to mind.

The questions are legion. If U.S. government officials are being accurate and truthful in both their attributed and anonymous statements, Awlaki was placed on the list only in April 2010, after he had “gone operational” and had crossed the line between speech and action. Did the lawyers think that the First Amendment protected even his fiery rhetoric, easily available to potential jihadists by Internet, which had inflamed a few wannabe terrorists? Did they require that he actually take a hand in some planning before he could be considered worthy of the drone strike that killed him in Yemen? Hours after his death, President Obama awarded him a posthumous promotion, calling him for the first time “the leader of external operations for al-Qaeda in the Arabian Peninsula.”

What is the basis for this grand title? There is no doubt about his words—anybody can still hear and read them—but the picture of his actions is sketchy, derived from unverified intelligence. Given how wrong the CIA was about weapons of mass destruction in Iraq, is it really sufficient to base a death warrant on intelligence operatives’ untested assertions? How can their accuracy be checked? Does the Fifth Amendment’s right to due process extend to Americans overseas? Due process, after all, was the Framers’ effort to enhance the accuracy of the criminal justice system. Is there another way that an independent review can be done before a missile is sent in the direction of some named person who is not on a battlefield? Isn’t it strange that under Obama’s reasoning, the president can’t order torture but can order death, that he needs a judge’s authorization to listen to an American’s phone overseas but needs no such judicial approval to end the citizen’s life?

At the bottom of these questions lies the unresolved issue of how terrorism should be classified. Is it a crime, an act of war, or some new category of outrage not quite covered by either domestic or international law? Do the Geneva Conventions need amendment to define the rights and limits of state action against non-state terrorists? Should the United States establish a parallel system of warrants and approvals with checks and balances to regulate lethal force against individuals abroad whose threats are serious but not imminent?

Neither Congress nor the president wrestles with any of this. Bush and Obama have both taken extreme measures of dubious constitutionality, bypassing the legislative and judicial branches. Bush and now Obama have cited the congressional authorization for the use of force after 9/11, but that was a vague and sweeping statement devoid of specifics or limitations. It may seem alarmist to wonder where the limits might be, but where are they actually? Are they geographical? Does the president’s prerogative to have American terrorists summarily executed in the Arabian Peninsula extend to Alabama or Arkansas as well? The question sounds absurd, doesn’t it? We should see that it remains so.

In practice, terrorism has been treated sometimes as a crime, sometimes as an act of war. Judging by terrorism cases that have been prosecuted in civilian courts—and one case in particular—there seems little doubt that if Awlaki had been captured, arrested, advised of his Miranda rights, and brought to the United States for trial, he would have been convicted and sentenced at least to life in prison for his words. That was the result of the trial in the eastern district of Virginia—Pentagon territory—of Ali al-Timimi, a cancer researcher who established himself as a powerful lecturer on Islam.

Several nights after 9/11, Timimi spoke at a dinner in a private home to a small group of young Muslims from northern Virginia. He suggested that they and their families leave the country, and he discussed jihad as holy war, noting that they “could serve the faith as mujahideen in Kashmir, Chechnya, or Afghanistan,” according to an account by Milton Viorst in The Atlantic. Several of the men then went to train in Pakistan, and Timimi was later charged, convicted, and sentenced for “inducing others to conspire” to support terrorism.

Awlaki was more explicit in his statements, so he would probably have spent the the rest of his life in prison for inciting terrorist attacks. Whether a death sentence could have been obtained, however, would have depended on conviction either for treason or for actually contributing to murder. The only “successful” attack he may have inspired was the shooting rampage that killed thirteen at Fort Hood, Texas by army major Nidal Malik Hasan, a psychiatrist with whom Awlaki allegedly exchanged a dozen or more e-mails. But the government has never released the texts, and they did not provoke action by authorities, raising the question of how incriminating they were.

A jury might have taken Awlaki’s own public statements as incriminating enough. Asked about the major in a May 2010 interview, Awlaki was quoted as saying: “Nidal Hasan is a student of mine, and I am proud of this. I am proud that there are people like Nidal Hasan among my students. What he did was a heroic act, a wonderful operation. I ask Allah to make him steadfast, to protect him, and to free him. I support what he did, and I call upon anyone who calls himself a Muslim, and serves in the US army, to follow in the footsteps of Nidal Hasan.”

There are two parts to this statement. The first, claiming some credit for Hasan as his student, was a boastful confession of sorts. The second—Awlaki’s endorsement after the fact and his plea to other Muslims to follow suit—might in ordinary times have been judged too attenuated from any actual act of violence to constitute incitement, and might therefore have been protected by the First Amendment. But now, even a decade after 9/11, this is not an ordinary time, and if a jury could convict Timimi for his more ambiguous words, Awlaki’s could easily have been found guilty for his.

So, why bother to bring the guilty man in for a fair trial? For thorough truth-finding, one could say, or to uphold the pageantry of constitutional justice, which is a crown jewel of our democracy. To lend unquestioned legitimacy to the ultimate sentence, even if it is death, so the world does not look upon America with repugnance. To keep the trappings of civilized order so that we do not become a vigilante state. To stop ourselves from taking a step down a long slope whose ends might be oppression very different from anything we can now imagine. “It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings,” Justice Robert H. Jackson once declared.

What if you can’t capture Awlaki in the tribal areas of Yemen? What if his words and plans continue to threaten lives? What if what he does is both crime and warfare, or something in a twilight between the two? We still do not have good answers, we are fumbling around in the half-light, and we do not have leaders helping to find the way.