Targeted Killing of Anwar Al

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The Targeted Killing of Anwar al-Awlaki

Anwar al-Awlaki, a U.S. citizen, was targeted and killed by a U.S. Predator drone

in Yemen on September 30, 2011. Although the Obama Administration has steadfastly

refused to publicly release the memo that purports to justify the targeted killing, several

(surely selective) leaks paint a picture of the governments argument in support of the

strike. In addition, the attempt by Nasser al-Aulaqi (father of Anwar) to pursue an

injunction in federal court gives some insight into a judicial interpretation of the issue (the

D.C. District Court ruled in favor of the government on several grounds). Despite the

assertions of both the Obama Administration and the court, several scholars, civil liberties

organizations and commentators remain immensely skeptical of the legality of al-Awlakis

assassination.

U.S. Government Position

The government memo, according to sources who have read it, lays out a very

narrow, fact-specific (thus not establishing a precedent, the administration argues)

framework through which such a strike against an American citizen is justified.1

The executive branch determined Anwar al-Awlaki to be an operational

combatant against the United States and to have played a prominent role in terrorist attacks

against the United States including Nidal Hasans November 2009 assault on Ft. Hood and

Umar Farouk Abdulmutallabs (a.k.a. The Underwear Bomber) attempt to destroy an

American airliner over the city of Detroit on Christmas Day of 2009.2 The administration

further determined that al-Awlaki was an influential leader within al-Qaeda in the Arabian

1 Charlie Savage, Secret U.S. Memo Made Legal Case to Kill a Citizen, The New York Times, Oct. 8, 2011.

http://www.nytimes.com/2011/10/09/world/middleeast/secret-us-memo-made-legal-case-to-kill-a-

citizen.html(accessed Oct. 17, 2011).2 Id.

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Peninsula (AQAP). AQAP supposedly maintains a loose affiliation with the central core of

al-Qaeda and thus, the administration argues, the attack against al-Awlaki was covered by

the Authorization of Use of Military Force (AUMF) of September 18, 2001, which

authorizes the President

[]to use all necessary and appropriate force against those nations,

organizations, or persons he determines planned, authorized, committed, or

aided the terrorist attacks that occurred on September 11, 2001, or

harbored such organizations or persons, in order to prevent any future acts

of international terrorism against the United States by such nations,

organizations or persons.3

According to the administration, this confluence of executive findings, backed by the

legislative authority of the AUMF, provided the legal authority to conduct the drone strike

that killed Anwar al-Awlaki.

The memo, according to those who have seen it, sequentially considered and

dismissed challenges to the governments position.

Executive orders banning assassination did not apply as al-Awlaki was a

lawful enemy combatant rather than a political leader outside a theater of

war.4

A federal law prohibiting the murder of Americans abroad did not apply

because al-Awlaki was determined to be an enemy in war time, thus the

strike was lawful and not murder.5

3 Public Law 107-40, Joint resolution to authorize the use of United States Armed Forces against those

responsible for the recent attacks launched against the United States, Sep. 18, 2001.

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ040.1074 Charlie Savage, Secret U.S. Memo Made Legal Case to Kill a Citizen5 Id.

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Due Process was afforded to al-Awlaki. The process to which he was

entitled was simply much different than that of a normal American citizen

accused of a crime. For this point the memo reportedly cites Hamdi v.

Rumsfeld6 and Ex Parte Quirin7 for the proposition that American citizen

enemy combatants can legally be detained and tried before military

tribunals just like noncitizen combatants. The memo further cites Scott v.

Harris8 and Tennessee v. Garner9 for the proposition that the government is

permitted to put a suspect at risk of death in order to mitigate an imminent

risk to innocent bystanders. The memo further asserted that imminent

risk applied to Anwar al-Awlaki because he had already been involved in

attacks against Americans in the past and was likely to do so again.10

While the government is obligated to attempt, where feasible, to apprehend

American citizens rather than simply kill them, an attempt to apprehend al-

Awlaki in Yemen was not feasible as a result of ground hostilities and the

risk to U.S. forces.11

As for the potential infringement of Yemeni sovereignty implicated by the

strike, this issue was mooted by a leaked State Department cable revealing

that Yemeni President Ali Abdullah Saleh had given the United States

explicit permission to launch such strikes inside Yemen.12

Nasser al-Aulaqi v. Obama

6 542 U.S. 507 (2004)7 317 U.S. 1 (1942)8 550 U.S. 372 (2007)9 471 U.S. 1 (1985)10 Charlie Savage, Secret U.S. Memo Made Legal Case to Kill a Citizen11 Id.12 BRENNAN-SALEH MEETING SEP 6, 2009 at par. 2.

http://wikileaks.org/cable/2009/09/09SANAA1669.html

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The position of the Obama Administration had actually found support in the

judiciary roughly a year before the killing. In late 2010, shortly after the story broke that

Anwar al-Awlaki had been placed on a target list by the Obama Administration, Anwars

father Nasser sued in D.C. District Court seeking an injunction against the extrajudicial

killing of his son.13Nasser al-Aulaqi asserted 1) that the authorized targeting of his son,

free of any evidence of an imminent threat, violating Anwars Fourth Amendment right to

be free from unreasonable seizures; 2) that the targeted killing policy violates Anwars

Fifth Amendment right not to be deprived of life without due process of law; and 3) that

the failure of the government to disclose the criteria by which U.S. citizens are selected for

killing violates those citizens right to notice under the Fifth Amendment.14

D.C. District Judge John Bates ruled against al-Aulaqi, stating 1) that Nasser did

not have standing to sue on behalf of Anwar; 2) that the determinations of Anwar al-

Awlakis status and the imminence of his threat constituted non-justiciable political

questions; and 3) that the state secret question need not be reached (though the language of

the opinion suggests the judge was sympathetic to the governments argument for state

secrets privilege).

Standing

Because Nasser al-Aulaqi, not Anwar, appeared in court to assert Anwars rights in

pursuit of an injunction, Nasser had to establish that he had standing to argue on Anwars

behalf. The question of standing has been a common flashpoint in War on Terror

litigation as a result of the fact that many of the potential plaintiffs are detained indefinitely

13 Al-Aulaqi v. Obama, 727 F. Supp.2d 1.14 Id. at 15.

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or in perpetual hiding abroad, thus making the likelihood of these men appearing in court to

argue on their own behalf exceedingly remote.

Next Friend Standing

In order to proceed as anothers next friend, one must provide an adequate

explanation for why the real party cannot appear on his own behalf, be truly dedicated to

the best interests of the real party, and have some significant relationship with the real

party.15 While acknowledging that Nasser al-Aulaqi indeed has a significant relationship

with his son, the court ruled that he failed to establish the other two requisites.

The government contended, and the court agreed, that Anwar al-Awlaki did not

sufficiently lack access to the courts, within the meaning of Whitmore, to justify next

friend standing for his father. Because Anwar could simply present himself at the U.S.

Embassy in Yemen and assert his Constitutional rights, the government argued there was

no basis for asserting that Anwar al-Awlaki lacked access to the courts. While Nasser

argued that such an attempt by his son would invite attack by the U.S. government, the

government argued that they are prohibited from attacking under such circumstances and

would of course accept his peaceful surrender.16 The memorandum from the ACLU and

the Center for Constitutional Rights rejected this reasoning, arguing that the government

lacks the authority to summarily execute fugitives from justice simply because they refuse

to present themselves to the authorities.17 The ACLU/CCR memo also decried the

governments surrender argument as doubly troubling in light of the fact that Anwar al-

Awlaki was not publicly charged with a crime, either in the United States or Yemen.18

15 Id. at 16, citing Whitmore v. Arkansas, 495 U.S. 149 (1990).16 Id. at 18.17 ACLU & CCR Reply Memorandum in Support of Plaintiffs Motion for a Preliminary Injunction, Oct. 8,

2011 at 9.18 Id.

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Ultimately, the court agreed with the government that Anwar al-Awlaki did not lack access

to the courts and could assert his own Constitutional rights by presenting himself to

American authorities in Yemen if he wished to do so.19

The court also ruled that Nasser al-Aulaqi was not affirmatively dedicated to

Anwars best interests. While acknowledging that Anwar may well have believed it was

in his best interests not to be killed in a missile strike, the court ruled that Anwars public

statements evinced no desire in Anwar to avail himself of the protections afforded by the

Constitution and courts of the United States. The ACLU/CCR memo argued that Anwars

public statements implied no such rejection and that Anwar al-Awlakis public silence on

the matter supports an inference in his favor.20

Third Party Standing

In order to achieve third party standing to assert the rights of another, a litigant

must show 1) that he himself has suffered a concrete, redressable injury in fact adequate

to satisfy Article IIIs case-or-controversy requirement; 2) that he has a close relation to

the third party; and 3) that there is some hindrance to the third partys ability to protect his

or her own interests.21 The court also stated that there is a de facto fourth requirement,

incorporated into the Powers test, requiring that there be no genuine conflict of interest

between the litigants interests and those of the absent third party.22Nasser al-Aulaqi

argued that the loss of his son plainly constituted a profound injury and satisfied the first

prong of Powers, that the father-son relationship easily constitutes the requisite close

relationship for the second prong of the test, and that the standing assassination order

19 al-Aulaqi v. Obama at 18.20 ACLU & CCR Reply Memo at 10.21 al-Aulaqi v. Obama at 28-9, citing Powers v. Ohio, 499 U.S. 400, 415(1991).22 Id. at 29.

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against Anwar al-Awlaki (as well as his status hiding in Yemen) easily satisfies the third

prong of the Powers test.23

Again the court ruled against Nasser al-Aulaqi, holding that the emotional harm

suffered by a parent who loses a son to an extrajudicial killing is not sufficient harm to

satisfy the first prong of Powers,24 and that, despite the arguable satisfaction of the

hindrance requirement, Nasser did not satisfy either the close relationship or aligned

interest requirements for third party standing.25 The court ruled that Nasser al-Aulaqis

interests were not only not aligned with those of his son, but potentially in conflict, stating,

whatever the reason for Anwar Al-Aulaqis failure to seek legal redress for

his alleged inclusion [on the kill list] a mistrust of or disdain for the

American judicial system, a desire to become a martyr, or a mere lack of

interest in pursuing a case thousands of miles away from his current

location this Court cannot subvert the purpose of the Powers prudential

standing requirements by adjudicating rights unnecessarily when the holders

of those rights do not with to assert them.26

The court then determined that because the governments alleged actions were not

designed to interfere with the father-adult son relationship, Nasser al-Aulaqi could not

satisfy the close relationship test laid out in Haitian Refugee Center v. S Gracy, 809 F.2d

794.27

23 ACLU & CCR Reply Memo at 11 et seq.24 al-Aulaqi v. Obama, at 37.25 Id. at 40 et seq.26 Id. at 46,27 Id. at 47-48.

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The court, therefore, rejected all of Nasser al-Aulaqis claims for lack of

standing.28 The court then discussed the issue of whether these claims, even had standing

been established, are justiciable at all.

Political Question Doctrine

Nasser al-Aulaqi argued that the question of the governments authority to target

and kill his son was no less justiciable than the question of whether the executive branch

can indefinitely detain an American citizen captured abroad, which the Supreme Court

adjudicated in Hamdi v. Rumsfeld; can indefinitely detain non-citizens at Guantanamo

Bay, which the Supreme Court addressed in Rasul v. Bush and Boumediene v. Bush; or

charge and try suspects in ad-hoc military commissions, which the Supreme Court

addressed in Hamdan v. Rumsfeld.29 al-Aulaqis brief goes on to cite Justice OConnors

plurality opinion from Hamdi,

[w]hatever power the United States Constitution envisions for the

Executive in its exchanges with other nations or with enemy

organizations in times of conflict, it most assuredly envisions a role for

all three branches when individual liberties are at stake.30

Any other outcome, al-Aulaqi argued, would result in the executive, which must obtain

judicial approval to monitor a U.S. citizens communications or search his briefcase,

assuming the authority to killthat same citizen without any obligation to justify its actions

before a court or the public.31 If the governments theories are adopted, al-Aulaqi

28 The court also rejected a claim under the Alien Tort Statute on the grounds that Nasser failed to state a

cause of action and because the United States had not waived sovereign immunity under the statute. Id. at

49 et seq.29 ACLU & CCR Reply Memo at 22-3.30 Id. at 23, citing Hamdi v. Rumsfeld, 542 U.S. 507, 535-36 (2004).31 Id. at 1.

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argued, no American will ever be in a position to seek protection from the courts when

faced with credible threats of assassination by his or her own government. 32

The court reiterated that national security, military matters and foreign relations

are quintessential sources of political questions.33 The court ruled that the resolution of

the case would require a judicial determination of the precise nature of al-Awlakis

affiliation with AQAP, whether AQAP and al-Qaeda are sufficiently linked for strikes

against AQAP figures to fall under the AUMF, whether al-Awlaki is a concrete, specific,

and imminent threat, and whether there are reasonable non-lethal means for al-Awlakis

apprehension that would render deadly force unnecessary. The court determined that these

types of questions are precisely those the political question doctrine is designed to remove

from the courts.34 The court, therefore, held al-Aulaqis claims to be non-justiciable

political questions.

State Secrets Privilege

According to the court, the state secrets privilege is premised on the recognition

that in exceptional circumstances courts must act in the interest of the countrys national

security to prevent disclosure of state secrets, even to the point of dismissing a case

entirely.35 The court cited the Ninth Circuit in laying out two applications of the state

secrets privilege. One, the so-called Totten bar, completely bars the adjudication of a claim

where the very subject matter of the action is itself a matter of state secret, the other, the

so-called Reynolds privilege, remove[s] the privileged evidence from the litigation but

does not necessarily require the claim to be dismissed.36

32 Id. at 1-2.33 al-Aulaqi v. Obama. at 67, citing El-Shifa Pharm. Indus. Co. v. U.S., 607 F.3d 836, 841 (2010).34 Id. at 69.35 Id. at 80, citing Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1077 (9 th Cir.2010).36 Id. at 81, citing Mohamed.

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Nasser al-Aulaqi fought the invocation of the privilege and incredulously attacked

what he called the irony of the government asserting state secrets privilege when the

entire action was a direct byproduct of a coordinated effort by the very same government to

tell the world about its intentions to kill Anwar al-Awlaki.37 al-Aulaqi also argued that,

because the action of the sovereign in taking the life of one of its citizens [] differs

dramatically from any other legitimate state action, the application of state secrets

privilege to this case is unconscionable.38

Ultimately, because the court rejected Nasser al-Aulaqis claims on standing and

justiciability grounds, the court refused to reach the state secrets question, citing Mohamed

v. Jeppesen Dataplan, Inc. for the proposition that the state secrets privilege should not be

invoked more often or extensively than necessary.39

Counterarguments to Obama Administration and D.C. District Court

Scholars, civil libertarians, and political commentators have made several forceful

counterarguments condemning the strike against al-Awlaki. These counterarguments

attack both the legal and factual underpinnings of the governments position. The factual

objections attack the veracity of the facts proffered by the government (what few of them

have been proffered anyway). Commentators assert that Anwar al-Awlaki was not a

concrete, imminent threat,40 that he was not actively fighting on a battlefield,41 and that

both his role in AQAP and his connection to al-Qaeda proper were overstated by the U.S.

37 ACLU & CCR Reply Memo at 45. The court responded to this concern in a footnote, stating that theleak of some privileged information is not cause for refusing to grant the privilege to other information. al-

Aulaqi v. Obama at 83, fn17.38 Id. at 46, citing Garner v. Florida, 430 U.S. 349, 357-358 (1977).39 al-Aulaqi v. Obama at 83, citing Mohamed v. Jeppesen Dataplan, Inc. at 1080.40 See Robert A. Levy,Awlaki and Due Process, Cato @ Liberty, Oct. 1, 2011. http://www.cato-at-

liberty.org/awlaki-and-due-process/41 Id.

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government in an attempt to make the premises fit the conclusion.4243 The administrations

steadfast refusal to formally present whatever evidence it possesses against Anwar al-

Awlaki poses an obvious hindrance to an inquiry into the facts of the case. This refusal is

the source of many of the legal counterarguments to the governments position. 44

The legal arguments largely mirror those made by Nasser al-Aulaqi and dismissed

by the D.C. District Court as political questions. The counterarguments focus on the

meaning of imminence in the legal context, the legal significance of the infeasibility of

al-Awlakis capture, and the separation of powers/justiciability issue.

Imminence

The executive branch clearly has the legal authority to use deadly force when such

force is necessary to neutralize an imminent threat to the agents of the government or to

innocent bystanders without implicating due process protections. To justify the immediate

use of deadly force against a citizen, however, the threat posed by the citizen must likewise

be immediate.45 The Obama Administration argues that because al-Awlaki had

participated in attacks in the past (participation for which he was not charged, notably)

and continued his propaganda campaign calling for more attacks in the future, he

constituted an imminent threat to the safety of Americans and thus the executive branch

could carry out the killing without infringing al-Awlakis due process rights.

42 Gregory Johnsen,A False Target in Yemen, The New York Times, Nov. 19, 2010.

https://www.nytimes.com/2010/11/20/opinion/20johnsen.html43 al-Awlaki was also, notably, given a posthumous promotion by the U.S. government in order to

emphasize his operational status. See Greg Miller and Alice Fordham,Anwar al-Aulaqi gets newdesignation in death, The Washington Post, Sep. 30, 2011.

http://www.washingtonpost.com/blogs/checkpoint-washington/post/aulaqi-gets-new-designation-in-death/2011/09/30/gIQAsbF69K_blog.html44 See David K. Shipler, Crime or War: Execution or Assassination?, The Shipler Report, Oct. 1, 2011.

http://shiplerreport.blogspot.com/2011/10/crime-or-war-execution-or-assassination.html, and Julian

Sanchez,Four Thoughts on the Anwar al-Awlaki Assassination, Cato @ Liberty, Oct. 4, 2011.

http://www.cato-at-liberty.org/four-thoughts-on-the-anwar-al-awlaki-assassination/45 ACLU & CCR, Memorandum in Support of Plaintiffs Motion for Preliminary Injunction at 20, citing

Tennessee v. Garner, 471 U.S. 1.

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https://www.nytimes.com/2010/11/20/opinion/20johnsen.htmlhttp://www.washingtonpost.com/blogs/checkpoint-washington/post/aulaqi-gets-new-designation-in-death/2011/09/30/gIQAsbF69K_blog.htmlhttp://www.washingtonpost.com/blogs/checkpoint-washington/post/aulaqi-gets-new-designation-in-death/2011/09/30/gIQAsbF69K_blog.htmlhttp://shiplerreport.blogspot.com/2011/10/crime-or-war-execution-or-assassination.htmlhttp://www.cato-at-liberty.org/four-thoughts-on-the-anwar-al-awlaki-assassination/http://www.cato-at-liberty.org/four-thoughts-on-the-anwar-al-awlaki-assassination/https://www.nytimes.com/2010/11/20/opinion/20johnsen.htmlhttp://www.washingtonpost.com/blogs/checkpoint-washington/post/aulaqi-gets-new-designation-in-death/2011/09/30/gIQAsbF69K_blog.htmlhttp://www.washingtonpost.com/blogs/checkpoint-washington/post/aulaqi-gets-new-designation-in-death/2011/09/30/gIQAsbF69K_blog.htmlhttp://shiplerreport.blogspot.com/2011/10/crime-or-war-execution-or-assassination.htmlhttp://www.cato-at-liberty.org/four-thoughts-on-the-anwar-al-awlaki-assassination/


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Many commentators have argued that such a framework does not justify the use of

deadly force in circumstances like those surrounding Anwar al-Awlaki because the concept

of imminence put forth by the U.S. government in this case is far broader and more

liberal than the courts have ever allowed. The ACLU/CCR memo, for instance, argued that

the entire concept of a kill list prohibits the satisfaction of the imminence tests used by

the courts. That the government can continually authorize, for months at a time, the

killings of U.S. citizens shows that the strikes are not an immediate response to an

immediate threat but apremeditatedresponse to a nebulousfuture threat.46 The argument

that past violent actions are sufficient to establish a persons continual imminent threat is

also troublesome as a precedential matter. If a persons past behavior can be used to

establish an imminent future threat, it is unclear how that person can ever get out from

under the governments standing authority to kill him.

Infeasibility

The primary counterargument to the Obama Administrations suggestion that the

government only has an obligation not to use deadly force when feasible is that the

limitations of such a regime are difficult to derive. There does not seem to be a

geographical component to the governments argument, for instance. If infeasibility

justifies the use of missile strikes abroad to neutralize threats too dangerous to apprehend,

could it not also justify strikes domestically in situations that pose immense dangers to law

enforcement? While the chance of such an application is negligible and perhaps ridiculous,

is that negligibility and ridiculousness a function of the applications illegality or merely its

political unpopularity?47

4646 ACLU Memo at 15.47 See Julian Sanchez,Four Thoughts on the Anwar al-Awlaki Assassination and David K. Shipler, Crime or

War: Execution or Assassination?

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The larger question, as Julian Sanchez points out, is: who gets to make the ultimate

judgment on the feasibility question in the first place? When the executive branch

determines that a capture is infeasible and thus justifies the use of deadly force, is there any

check at all on this authority?48 Both the imminence and infeasibility analyses are rooted in

jurisprudence, and thus it is essential to their practical relevance that these issues be

justiciable in the first place. The D.C. District Court agreed with the Obama

Administration that they are not, but that position too has come under considerable attack.

Separation of Powers/Political Questions

A common refrain in the criticisms of the governments position (and that of the

D.C. District Court) is the purely executive nature of the relevant factual and legal

determinations. The invocation of political question doctrine leaves the executive branch

the sole judge of every relevant fact determination. The executive branch maintains the kill

list, the executive branch decides what criteria qualify a citizen for placement on the list,

and the executive branch carries out the strikes. If such executive powers truly are beyond

the reach of the judiciary, are they limited at all beyond the Presidents grace? And even

assuming inarguendo that the AUMF authorizes the President to exercise these powers, is

it clear that Congress had such powers to delegate in the first place?

As the ACLU and Center for Constitutional Rights argued in their memorandum in

support of Nasser al-Aulaqis prayer for injunction, the courts have repeatedly and

explicitly stated that the Bill of Rights has extraterritorial application to the conduct abroad

of the U.S. government directed against U.S. citizens.49 The United States is entirely a

creature of the Constitution. Its power and authority have no other source.50 How, then,

48 See Julian Sanchez,Four Thoughts on the Anwar al-Awlaki Assassination49 ACLU & CCR, Memorandum in Support of Plaintiffs Motion for Preliminary Injunction at 8, citing In

re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 157, 167 (2d Cir.2008)50 Id. at 9, citing United States v. Verdugo-Urquidez, 494 U.S. 259, 270 (1990).

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can Congress (through the AUMF) and the President (through the kill list) make

determinations about how much process is due to American citizens or about the

imminence of a threat posed by a citizen free of any and all judicial oversight or remedy? 51

Are there no checks or oversight on the executive branchs determinations of infeasibility

and imminence? This concern was aptly articulated by Robert Levy of the Cato Institute,

who stated, [t]he separation of powers doctrine, if it means anything, stands for the

proposition that citizens cannot be killed on command of the executive branch alone,

without regard to the Fourth and Fifth Amendments.52

The status of al-Awlakis behavior further complicates the analysis. Clearly Fourth

and Fifth Amendment claims are justiciable generally. Surely Congress could not, free of

judicial oversight, pass a law delegating to the president sole authority to determine the

extent of due process protections for American citizens. The general justiciability of

executive determinations of imminence and infeasibility is evident as well, or else

there would be no jurisprudence for advocates and critics to cite in defense of their

positions. So what makes al-Awlakis Constitutional and factual claims political questions

to be sorted out without the oversight of the judiciary? Under the Obama Administrations

logic, the relevant distinction is perhaps that between a criminal and a wartime enemy. 53

This position is logically problematic in the context of this case.

If the debate is whether al-Awlaki is a criminal, to be afforded the protections of the

U.S. Constitution, or a battlefield enemy, entitled only to those protections to which all

battlefield enemies are entitled, then the invocation of political question doctrine seems

51 The ACLU/CCR Memo cites Hamdi v. Rumsfeld for the proposition that even citizens on the field of

battle are entitled to due process when captured, to say nothing of citizens hundreds of miles from any

battlefield.52 Robert A. Levy,Awlaki and Due Process53 See David K. Shipler, Crime or War: Execution or Assassination?

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self-defeating. By hinging its application of the political question doctrine on the idea that

issues of foreign and military policy are quintessentially the province of the political

branches, the D.C. District Court was, in effect, ruling that al-Awlakis case was an issue of

military or foreign policy rather than a criminal law enforcement effort. By refusing to

decide the merits of the case, in other words, the court may well have decided the merits of

the case.

Conclusion

The legal experts in the Obama Administration have gone to great lengths to justify

the use of deadly force against Anwar al-Awlaki and to put civil libertarians at rest

regarding the precedential import of their argument. They have created a narrow and fact-

specific framework for the use of missile strikes against enemy combatants who are, in the

governments view, too threatening to leave alone and too dangerous to capture. The

failure of the administration, however, to release its internal justification memo and its

failure to disclose what, if any, additional evidence it has implicating al-Awlaki as an

imminent threat to Americans is just cause for grave concern.

Further concerning is the insistence of the administration that its decisions to place

a citizen on a kill list and to subsequently kill that citizen are beyond the scope of judicial

oversight. This concern is compounded by the fact that the only court to hear this

argument agreed that the courts have no role to play in these executive determinations. No

matter how narrow and fact-specific the administration makes its framework, forceful and

well-grounded objections will remain as long as the executive branch continues to

unilaterally represent prosecutor, judge, jury, and executioner in this area of American law.

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