April 7, 2010 | The Daily Beast

The American Terrorist Obama Wants to Kill

Co-Authored with Lee A. Casey

Anwar al-Awlaki is an American citizen, born in New Mexico. He is best known as a radical imam who preaches jihad and celebrates violent Islamic extremism from within Western societies, including that of the United States. Media reports indicate that he was in contact with U.S. Army Major Nidal Malik Hasan, who is accused of murdering 13 people at Fort Hood, Texas, last November. Al-Awlaki left the U.S. for Yemen (his parents’ homeland) in 2004 and the U.S. government says that he is a member of al Qaeda. Accordingly, President Obama has authorized U.S. forces—including the CIA—to capture or kill al-Awlaki, an order that has provoked outrage among many of the president's own supporters, who claim that any such action would be an illegal, extrajudicial killing of a criminal suspect. In fact, the president's order is entirely lawful and justified.

“The fact that al-Awlaki’s role may have been more as a propagandist and interlocutor, rather than a foot soldier, does not render him a civilian or ‘non-combatant’ who is immune from deliberate attack.”

Although he was profoundly criticl of the “war on terror” before his election, President Obama has continued far more of the Bush administration's policies than he has changed. He has not closed the Guantanamo Bay detention facility, he has not withdrawn American forces from either Iraq or Afghanistan, and he has clearly accepted the fundamental proposition that the U.S. is at war with al Qaeda and its allies. As State Department legal adviser Harold Koh (once also a vocal critic of the “war on terror”) recently noted in a speech before the American Society of International Law: “We continue to fight a war of self-defense against any enemy that attacked us on September 11, 2001, and before, and that continues to undertake armed attacks against the United States.” George W. Bush could not have put it better. It is safe to say that President, rather than candidate, Obama has been hit with a sobering dose of reality about the nature and extent of the jihadist threat.

The president's decision to add Anwar al-Awlaki to the list of al Qaeda operatives that the military and/or the CIA can target for attack is, therefore, hardly surprising. The fact that al-Awlaki is a U.S. national makes no difference. Americans who join in armed hostilities against the United States are enemy combatants. They are subject to attack, capture, and detention pursuant to the law of armed conflict, just like any other enemy combatant who is not a citizen. This was established in the World War II “Nazi saboteur” case, Ex parte Quirin (1942), in which the Supreme Court approved the trial by military commission of eight German agents, at least one of whom was an American citizen. The Supreme Court reaffirmed this basic principle more recently in Hamdi v. Rumsfeld (2004), in which it approved the capture and detention (without criminal charge or trial) of an American who was taken fighting with the Taliban.

In both cases, the court invoked the law of armed conflict. It is this body of law in particular that permits U.S. forces to attack, without warning or any effort to capture, enemy combatants including al-Awlaki. Enemy combatants are not criminal suspects and the U.S. military is not a police force that must first attempt to effect an arrest before using deadly force. The only limitations on the use of force against such individuals involve the basic principles of distinction (forbidding direct attacks on civilians) and proportionality (requiring that the likely collateral damage to civilians from a military operation is justified by its overall objective). The use of technologically innovative instruments, such as remote-controlled drones, in no way violates these well-settled rules. Indeed, technology has long been a handmaiden of war. As a matter of law, drones are no different from aerial bombs, artillery shells, bullets, or bayonets.

It is true that drone attacks have emerged as one of the most significant and effective American instruments in this war, capable not just of killing numerous enemy combatants but, perhaps even more importantly, forcing the entire al Qaeda infrastructure to operate in a “scared mode.” When al Qaeda leaders are afraid to meet or travel, cannot communicate by phone, relying instead of couriers, their ability to wage war is tremendously degraded. Indeed, the fact that these salutary strategic results can be accomplished with unprecedented precision and greatly reduced, albeit of course not fully eliminated, collateral damage is something to celebrate. It is certainly not a reason to challenge the use of drones or seek to subject them to some heightened regulatory restrictions, above and beyond those found in the traditional precepts of the law of armed conflict.

Similarly, the fact that al-Awlaki's role may have been more as a propagandist and interlocutor, rather than a foot soldier, does not render him a civilian or “non-combatant” who is immune from deliberate attack. Like any armed force, both al Qaeda and the Taliban include many individuals, who are part of their command and control or logistics and support apparatus. And, just as many members of legitimate military establishments, who rarely if ever actually go into action, are nevertheless “combatants” under the law of armed conflict, so is al Qaeda's leadership (high and low) legally subject to armed attack.

Finally, simply because established targeting lists are prepared far from the actual battlefield is no good reason—as some have claimed—to subject the president's decision to add or delete a name to judicial review. The Constitution makes the president commander in chief, and Congress has specifically authorized the president to use force against those responsible for the September 11 attacks and those who support their efforts. Appropriate congressional committees are briefed on a regular basis about all particulars of the drone program, further enhancing its accountability and bipartisan support.

The questions of when and how to attack the enemy are properly within the president's discretion and not subject to judicial supervision. In this instance, it is the political branches of the federal government, and not the courts, which have the legal authority—along with the necessary technical expertise and political accountability—to conduct all aspects of the war against al Qaeda. If and when enemy combatants, including U.S. citizens like al-Awlaki, are captured, detained, and/or prosecuted, the courts will have their say.

As to Obama's disappointed supporters, it is time that they acknowledge—as he and his administration have done—that the United States is at war with al Qaeda, and not merely engaged in some elaborate law-enforcement exercise. This war was not invented by George W. Bush as a means of increasing presidential power. It was brought to our shores by a determined and ruthless enemy that decided, long before September 11, to challenge the United States militarily in a concerted effort to drive American influence out of the Muslim world, and then ultimately to replace Western democracy as the prevailing global political and social system. That is the reality Obama discovered when he entered the Oval Office.

Messrs. Rivkin and Casey are Washington attorneys who served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush. They frequently write on international and constitutional law matters.