WASHINGTON - The Obama administrations decision to authorise CIA to kill American-born cleric Anwar al-Awlaki far from a combat zone, with no judicial process, has set off a debate among some legal authorities, The New York Times reported Friday.
To eavesdrop on Awlaki, who is accused of fomenting terrorist violence from Yemen, intelligence agencies would have to get a court warrant, the newspaper argued. But designating him for death, as CIA officials did early this year with the National Security Councils approval, required no judicial review, it noted.
Congress has protected Awlakis cellphone calls, Vicki Divoll, a former CIA lawyer who now teaches at the United States Naval Academy, was quoted as saying. But it has not provided any protections for his life. That makes no sense.
Administration officials take the view that no legal or constitutional rights can protect Awlaki, a charismatic preacher who has said it is a religious duty to attack the United States and who the CIA believes is actively plotting violence, The Times said. The attempted bombing of Times Square on May 1 is the latest of more than a dozen terrorist plots in the West that investigators believe were inspired in part by Awlakis sermons.
American citizenship doesnt give you carte blanche to wage war against your own country, said a counterterrorism official who discussed the classified programme on condition of anonymity. If you cast your lot with its enemies, you may well share their fate.
President Barack Obama, who campaigned for the presidency against George W Bush-era interrogation and detention practices, has implicitly invited moral and legal scrutiny of his own policies.
But like the debate over torture during the Bush administration, public discussion of what officials call targeted killing has been limited by the secrecy of the CIA drone programme, the dispatch said. Congressman John Tierney, who on April 28 held the first Congressional hearing focused on the lawfulness of targeted killing, said he was determined to air the contentious questions publicly and possibly seek legislation to govern such operations.
The reported targeting of Awlaki certainly raises the question of what rights a citizen has and what steps must be taken before hes put on the list, said Tierney, Democrat of Massachusetts and chairman of a House subcommittee on national security.
Counterterrorism officials, with the support of Democrats and Republicans in Congress, say the drone missile strikes have proved to be an extraordinarily successful weapon against militants in the tribal areas of Pakistan, the location of all the known CIA strikes except one in Yemen in 2002. By their count, the missiles have killed more than 500 militants since 2008, and a few dozen nearby civilians.
In the fullest administration statement to date, Harold Koh, the State Departments legal adviser, said in a March 24 speech the drone strikes against Al Qaeda and its allies were lawful as part of the military action authorised by Congress after the September 11, 2001, attacks, as well as under the general principle of self-defence. By those rules, he said, such targeted killing was not assassination, which is banned by executive order.
But the disclosure last month by news organizations that Awlaki, 39, had been added to the CIA kill list shifted the terms of the legal debate in several ways. He is located far from hostilities in Afghanistan and Pakistan, where the perpetrators of 9/11 are believed to be hiding.
He is alleged to be affiliated with a Yemeni branch of Al Qaeda. Intelligence analysts believe that only recently he began to help plot strikes, including the failed attempt to bomb an airliner on Dec. 25.
But Vicki Divoll, the former CIA lawyer, said some judicial process should be required before the government kills an American away from a traditional battlefield. In addition, Divoll offered a practical argument for a review outside the executive branch: avoiding mistakes.
She noted media reports that CIA officers in 2004 seized a German citizen, Khaled el-Masri, and held him in Afghanistan for months before acknowledging that they had grabbed the wrong man. What if we had put him on the kill list? she asked. Another former CIA lawyer, John Radsan, said prior judicial review of additions to the target list might be unconstitutional.
That sort of review goes to the core of presidential power, he said. But Radsan, who teaches at the William Mitchell College of Law in St Paul, said every drone strike should be subject to rigorous internal checks to be sure beyond a reasonable doubt that the target is an enemy combatant.
As for the question of whether Awlaki is a legitimate target, Radsan said the cleric might not resemble an American fighting in a Nazi uniform. But if you imagine him making radio speeches for the Germans in World War II, theres certainly a parallel, he said.
Beyond the legal debate is the question of whether killing Awlaki would be a good idea. Many Muslim activists and scholars say it would accord him martyr status and amplify his violent message. Mohamed Elibiary, a Muslim community advocate in Texas who advises law enforcement on countering extremism, said helping the Yemeni authorities arrest Awlaki would make more sense. Im not saying this guy shouldnt be treated as an enemy, Elibiary said. But there are smarter and stupider ways of eliminating your enemy.