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Awlaki assassination triggers legal debate

By Peter Finn
The Washington Post / October 1, 2011

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WASHINGTON - The killing of US citizen Anwar al-Awlaki and another citizen by an American drone strike in Yemen yesterday violently punctuates a legal debate about the limits of executive power to kill the nation’s own citizens as a counterterrorism measure.

The Obama administration has spoken in broad terms about its authority to use military force against Al Qaeda and associated forces beyond traditional battlefields such as Iraq or Afghanistan. But it will not reveal its exact legal analysis for targeting Awlaki and last year invoked the state-secrets privilege to argue successfully that a lawsuit brought by Awlaki’s father should be dismissed.

The American Civil Liberties Union and the Center for Constitutional Rights argued on behalf of Awlaki’s father that that there is no “battlefield’’ in Yemen and that the administration should be forced to publicly articulate its legal standards for killing any citizen outside the United States who is suspected of terrorism.

Otherwise, the groups argued, such a killing would amount to an extrajudicial execution and would violate the Fifth Amendment to the US Constitution, which guarantees citizens the right to due process.

“International human rights law dictates that you can’t unilaterally target someone and kill someone without that person posing an imminent threat to security interests,’’ said Vince Warren, executive director of the Center for Constitutional Rights.

“The information that we have, from the government’s own press releases, is that he is somehow loosely connected, but there is no specific evidence of things he actualized that would meet the legal threshold for making this killing justifiable as a matter of human rights law.’’

A White House official refused yesterday to discuss any legal findings that underpinned the targeting of Awlaki.

But the administration almost certainly concluded that the radical cleric was a legitimate military target who is not protected because of his citizenship.

Officials have designated Al Qaeda in the Arabian Peninsula as an associated force covered by the 2001 act of Congress authorizing military force. They have asserted that Awlaki is part of this enemy force and posed an imminent threat because of his operational role in the group.

The decision to place Awlaki on a capture-or-kill list was made in early 2010, after intelligence officials concluded that he played a direct role in the plot to blow up a civilian aircraft over Detroit.

Officials said Awlaki instructed Umar Farouk Abdulmutallab not to detonate the bomb he had hidden in his underwear until the plane was over the United States. Abdulmutallab, a Nigerian who goes on trial in Detroit next week, unsuccessfully attempted to explode the device seven minutes before landing.

Awlaki, who left the United States in 2002 and lived in the United Kingdom for two years before moving to Yemen, first acted as propagandist for Al Qaeda’s affiliate in Yemen, but officials insist he has become more and more involved in constructing and directing terrorist plots. And they described him yesterday as director of external operations for Al Qaeda in the Arabian Peninsula.

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