Anwar al-Awlaki, U.S. Citizen, Killed in Yemen?

BY Herschel Smith
12 years, 9 months ago

So apparently al Qaeda propagandist, Anwar al-Awlaki, was killed in Yemen by a CIA-led strike.  So this raises some important questions.

First off, while my friend Michael Ledeen wants to support the Green movement in Iran, I want to do this along with (a) reversing the executive order on assassinations issued by President Ford, (b) assassinating General Suleimani, Hassan Nasrallah, and a whole host of other unsavory characters, and fomenting an insurgency inside of Iran.  I pleaded for killing Baitullah Mehsud before his name became a household word, and toasted his demise when it happened (Edit: And now that I think back on this event, quite literally I laughed out loud and celebrated his death, just as I did Zarqawi).  I haven’t changed any of my views.  So let’s not level silly charges that I’m going soft or becoming a leftist.

But we have just rained ordnance down on a U.S. citizen by executive order.  Does anyone see any problems with this?  I (think I) have divorced myself from the fact that Mr. Obama approved this; as my readers know, I am no supporter of Mr. Obama.  But while I think less highly of the high value target program’s effectiveness than he does, I  supported his approval of the mission against UBL.  UBL wasn’t a U.S. citizen.

In this case, though, things are different.  The constitution affords certain protections to U.S. citizens.  I discussed this with co-writer Glen Tschirgi and he suggested some alternative solutions to the dilemma.  For example, Congress could have issued a bill that strips U.S. citizens of their citizenship when a person identifies with a formally designated terrorist entity.  There might be a set of other reasons that a person must relinquish their citizenship.  Now, to be sure, I can think of problematic aspects of such a solution, such as the fact that we would be relying on the accuracy and viability of the U.S. State Department’s program of identification of terrorists, or possibly corruption of the process.

But the fact of the matter is that we didn’t pursue any of these approaches.  Awlaki was still a U.S. citizen when we executed him under executive order.  For some odd reason, that little thing called “due process” keeps coming to mind.

UPDATE: Kevin Williamson weighs in a bit at NRO.  David French responds at NRO with what I consider to be an uncompelling argument.  The issue doesn’t focus on the term “assassination.”  The issue focuses on the protections afforded by the constutition to U.S. citizens.  If it’s legal to execute U.S. citizens without due process, then queue the argument up.  I’ll listen.  And this isn’t analogous to stumbling upon a shooter on the field of battle who happens to be a U.S. citizen.  This is the premeditated targeting of a U.S. citizen without due process.  Again, queue up the argument for this.  Tell me how this fits within our legal framework?


  1. On September 30, 2011 at 10:31 am, A former captain said:

    My quick thoughts. He was a leader of al Qaeda, an organization at war with the USA, but it’s own declarations. He was a legitimate target of war. Here is the hypothetical: If we were involved in a mechanized armored battled against al Qaeda, would we stop to verify if any enemy combatant in an opposing main battle tank was a US citizen before opening fire? No, of course not. When he joined al Qaeda, he joined a group at war with the US, and thus forfeited certain benefits of citizenship. It’s been awhile since I studied the law of war, but I do believe that, if he had been captured on a battlefield, he could have legally been executed on the spot, for treason, all within the accepted law of war.

  2. On September 30, 2011 at 10:48 am, Warbucks said:

    Do I recall the events correctly? Wasn’t the deck of playing cards after Gulf-1, an exo facto assassination list?

  3. On September 30, 2011 at 10:50 am, Herschel Smith said:


    Yes, I believe it was a kill or capture authorization for each one on the list. But they weren’t U.S. citizens. The question in the post pertains to the rights that the contitution affords U.S. citizens.

  4. On September 30, 2011 at 1:52 pm, TS Alfabet said:

    Well said Herschel.

    An alternative process could also be to pass a law that allows for Article III Court in the U.S. to rule on petitions by the Executive Branch to strip a person of their U.S. citizenship under certain, well-defined circumstances. At the very least, this process would put a citizen on notice and afford them at least the bare opportunity to demonstrate why they should not be afforded the constitutional protections endowed by birth as a citizen.

    And this need not be a long, dragged out process either. The enabling statute could allow for service of process by publication or means reasonably calculated to give notice and allow a limited time for the Defendant to respond to the petition or otherwise show cause, even through a designated representative if the person is outside of the country at the moment. The statute could restrict right of appeal and provide for an expedited process, or assign exclusive jurisdiction to the U.S. District for Eastern Virginia aka “The Rocket Docket” for its speedy resolutions.

    It would interesting to know just how many U.S. citizens are out there that the U.S. government is inclined to target for assassination as a matter of vital, national security.

    Which brings up another point. This Administration has done precious little in the way of justifying its military actions with either the American people or Congress. It is strange that the Democrats who decried Bush as some kind of “King George” or a cowboy bent on war say nothing when it comes to Obama’s indiscriminate use of force in, say, Libya without any Congressional authorization or even an attempt at it. Same with these targeted assassinations. They should be rare things and only after cause has been shown somehow.

    But, like Herschel, I would be only too glad if Obama applied the same, unfettered license to taking out even graver threats like: Ahmadinejad, the entire chain of command of Hezbollah, the entire chain of command of Hamas (although Israel seems pretty efficient at this already) and the leadership of the Somali pirates for good measure.

  5. On September 30, 2011 at 3:25 pm, Warbucks said:

    So for non-citizens the assassination list can be kept the way its been for many decades (presumably). Just do it, don’t talk in public about it? And for citizens, we post somewhere where everyone will read about it, perhaps embedded in the classified cables of our State Department …. the new “public notice section” of Wiki-leaks?

    This is a messy affair once we start it gentlemen.

    Let me site one example, I track Dutchsinse Blog daily to stay up on earthquakes, tectonics, and weather, HAARP, among other things. The young man was reported on Homeland Security website (it’s been taken down now) with the implication that his discussions, all taken from carefully reviewing NOAA and other public government geologic and satellite feeds, teaching and telling the public predictions from how to read the feeds. So many of us wrote Homeland Security and defended this young man, they took down the post which was something on par with what we are discussing. Every email that went in defended Dutch. Had it be differently, he was on the road to being declared a “terrorist” by an upset anonymous Air Force General. I covered the story here:

    If this sort of new due-process authority is given will it be applicable for all times, or only during “declared wars?” Will be given to anonymous Air Force Generals? Or, should the President of the US be held accountable for its accuracy and maintenance?

    I don’t think we need this rule. I think our long term interests as citizens, are better served by not having laws to cover every contingency, and treat it like we have been ….. “oh, he was collateral damage, we were after the guy standing 2 feet away from him when the 2000 pound bunker buster must have taken him out. But we did get our target.”

  6. On October 1, 2011 at 12:05 am, Frank said:

    I don’t think Awlaki got the memo about the rights of Americans or he wouldn’t be killing Americans (without trial, etc., yada yada)

  7. On October 1, 2011 at 9:15 am, TS Alfabet said:

    So far I have not heard any arguments in favor of the specific targeting of a U.S. citizen for assassination.

    “Former Captain” analogizes this to the battlefield, but that is apples and oranges. Awlaki was not anywhere close to a battlefield. He was driving in a caravan of sorts across open country while being surveilled by drones. At some point, the specific order was given to kill him. Presumably he was being monitored for months, perhaps years.

    I don’t say that he was not deserving of death, but to say that the U.S. govt should not go hunting down U.S. citizens without at least *some* process in no way ties the hands of our military forces on an actual battlefield or would have ultimately prevented the assassination of Awlaki.

    I wonder, too, whether this type of targeting of American citizens does not cheapen our citizenship? It should mean something very special to be a U.S. citizen. I would prefer to see Awlaki stripped of his citizenship first, and then, he is fair game as much as Ahma-dinnerjacket et al.

  8. On October 1, 2011 at 9:54 am, Warbucks said:

    However I personally connected to the idea of the deck of cards created by the artistic Hollywood minds inside the Pentagon. I think that idea is filled with re-run potential from assigning bounties for capture to kill-on-sight rewards. Expanding on that idea we could have a deck of cards of great Hollywood movie scenes say like James Cagney in 1949 “White Heat” standing on top the large petrol tank, reaching martyr-like status screaming “Made it, Ma! Top of the world!” But we could substitute faces of our most highly ranked American citizens most despised by ……….. popular vote of whatever political party is in power, assigned to highly reliable anonymous US Generals and Admirals who rely on staff known to have some of the highest IQ’s inside the beltway. It’s flawless!

    Who would qualify for Orson Welles, altered state scene in 1941 “Citizen Kane'” ….”Rosebud” ? We need a currently out of favor, out of office drug lord, someone rumored by anonymous generals.     

    Number 91 “Who’s On First?” Bud Abbott  is pregnant with possibilities. Here’s a working list of possibles for 100 playing cards.  I will even offer my likeness to grace the 4-jokers needed for a complete double deck.’s_100_Years…100_Movie_Quotes  .  What possibly could go wrong? 

  9. On October 1, 2011 at 12:22 pm, Charles said:

    After Congress passed a resolution––the Authorization for Use of Military Force (AUMF)––empowering the President to “use all necessary and appropriate force” against “nations, organizations, or persons” that he determines “planned, authorized, committed, or aided” in the September 11, 2001, al Qaeda terrorist attacks, the President ordered the Armed Forces to Afghanistan to subdue al Qaeda.

    While an AMCIT, he was a status-based combatant because he had joined AQ. He joined AQ after the Congress’ resolution.

    This is the same as if an American citizen had left the US to join the Wehrmacht, or any other group designated as a combatant org.

    He did not get a trial but the 535 members of the legislature, who we elected, gave those powers to the executive branch.

  10. On October 1, 2011 at 12:36 pm, Jim Harris said:

    It amazes me that there is even any question about this.

    During WWII thousands were subject to bombing who were not technically on or near a “battle field,” but the state of war made it “legal.” When Erwin Rommel got strafed, he was not “near” a battle field, as may be defined herein.

    Furthermore, there were AmCits who were part of the German Army, and they were killed the same as everyone else.

    The person killed, and others like him, are de facto enemies in the field — wherever they are. And, this particular person was more dangerous to us that just any pimply-faced jihadi teenager looking forward to an eternity of getting constantly laid. (Not a terrible idea of heaven actually!! — but still…).

  11. On October 1, 2011 at 4:29 pm, Herschel Smith said:

    Okay guys. Here is what you have to do to be relevant and consistent and, as the lawyers would say, “on point.”

    This issue (I raised, I’m not sure what others are saying) is not whether there was a Congressional declaration of war, or military action, or war by any other name. The question isn’t where he was. The question isn’t whether he identified himself with a group inimical to our good. Line up all of the other questions, and one by one by one, they don’t apply and I didn’t raise them. Not a single one.

    Here is the issue, and there isn’t any other issue. A U.S. citizen was killed without due process. That’s all. There is no other issue that needs to be addressed in this context. Until you address that issue, you haven’t said anything pertinent to the post.

    Think outside the box. The issue isn’t whether he was a bad guy. And because some people are continuing with this line of reasoning in spite of its irrelevance, it doesn’t matter whether he was a really, really, seriously bad person. You know, really bad dude. There are a lot of really bad people around, some in the U.S. and some holding U.S. citizenship.

    What happens when it isn’t Awlaki, and it isn’t al Qaeda, and it’s ten years from now, and you or some group with which you are affiliated – um, let’s say, a group that wants to hold the fed accountable for returning to constitutional government – and the government decides to bypass due process with you because you are a terrorist threat.

    Two words, guys. Due process. Due process for citizens. If we don’t give it to him, then we don’t have to give it to you either.

    Due process.

  12. On October 1, 2011 at 8:59 pm, Warbucks said:

    We don’t need a new law that gives permission to target US Citizens. I want to suppress that beast from growing legs. It will not be used justly, it will run amok with injustice. On the other side, a high profile U S citizen that becomes an enemy combatant raises no moral concern on my part that my government is coming after me or mine.

    Continuous pressure on the triade of secrete government, industry, and world wide cabal of national security agencies is best counter balanced and over come through openness and transparency in government, continuous access to alternative media, 4G level when possible, and world wide communications as the best chance we have to protect each other from unreasonable, outrageous acts of government.

    Rather than assinate all the bad guys in Iran, insure their civil com links have continuous, 24/7/365 functionality.

  13. On October 1, 2011 at 9:14 pm, Charles said:

    I addressed this. And you are incorrect.

    You are incorrect in saying that it is due process or that without a legal trial this is unjust.

    Due process is the legal principle that the government must respect all of the legal rights that are owed to a person according to the law.

    In clause 39 of the Magna Carta, John of England promised as follows: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

    When the Congress passed it’s resolution that is the law of land. Due process devolves from English Common Law.

    You are incorrect. You are focusing on the rights on the individual as being derived from the judiciary branch. In this case the status of a combatant was conferred on that group by the elected legislative body, the Congress, that receives it’s power from the Constitution.

    Your elected representatives in this democratic government voted to declare Al Qaeda a combatant organization. The deceased could have elected to surrender, or desert AQ. The declaration was a matter of public record. In fact he joined AFTER the AUMF.

    If you prefer to insist that he did not get due process then you have chosen to discount the judgment of the U.S. Congress….which is a more representative group of decision makers, and more accountable to the U.S. population, then a random group of 12 citizens picked off the streets.

    Congress has the power to declare wars. Due Process is a red herring. JUSTICE is what we are referring to, and that can come from a trial of your peers OR the law of the land.

    Read the Constitution. Agreement between the Chief Executive and the Legislature is enough.

    The slippery slope argument you are attempting to justify, is that the government could target any other group of AMCITS. Not legally, unless the Congress agrees to it.

    AMCITs have returned home to fight the United States in German, Japanese, and Confederate uniforms, among others. If you choose to beleive those people were denied due process, you must also agree that this has been a problem for hundreds of years and the cause-effect relationship you have predicted has not happened. Nor will it.

  14. On October 1, 2011 at 10:08 pm, Warbucks said:

    Yes, yes, of coarse. So when you see an injustice that rises your level of concern, sue, No new law is required. Your high principal is not being denied you nor is it’s moral superiority. I’m not on the other side of due process nor attempting to block it. It’s just that in war if you pick up a weapon and aim it at me I will aim mine back at you, law or no law.

    My argument is that we both stand a better chance of mutual survival if I am free and enabled to report everything you’re doing and you are free and enabled to report what I’m doing.

    I argue (and this is not yet proven, I fully realize) the only thing enabling the Arab Spring is the continous flow of information enhanced by home made visuals, constantly reaching the West.

  15. On October 1, 2011 at 10:13 pm, Warbucks said:

    And the Arab Spring as chaotic as it may be is, I argue, good.

  16. On October 1, 2011 at 11:33 pm, Herschel Smith said:


    It would be appropriate if you toned down the insulting flavor of your conversation. Disagreement is fine. Don’t assume what I do or do not know, and don’t presume to lecture me. Don’t assume that everything I know can be packed into a single post. Don’t assume that I spent any more than two minutes posting my thoughts on something. Don’t scream or shout. Talk. Assume that you should always slow down and think about what you’re getting ready to say. Being strident is reserved for certain people at certain times, but not for you against the author of this blog. I hope I’m clear on that.

    Now that the preliminaries are out of the way, let’s cover a little more ground. I know all about the source of our law, and even how it came to be applied by roving judges (see “law of the dusty trail,” or “law of the dusty feet,” leading to “circuit” judges).

    But I also know where our law ultimately comes from. The Bible. English law was derived in the main from the Holy Scriptures. Our system follows the Bible still in many of its aspects. Consider. It requires (or it is supposed to require) two witnesses to convict a man of a crime. That comes directly from the Bible (see R. J. Rushdoony, “Institutes of Biblical Law”). Take heart that you live in America. It isn’t that way in Islamic dictatorships.

    Listen to me very, very, very carefully. No man, no law, no vote of Congress, no executive order, no referendum, can remove my rights because my rights are granted to me by God. That’s the way our founding fathers saw it. The entirely of our system of government is set up to keep man from becoming too powerful and thus abusing his authority.

    Man’s heart is “deceitful above all things and is desperately wicked” (Jer 17:9). Do not ever give up your rights to a vote whether you agree with the sentiment of those in power or not. Do not ever allow one branch of our government to subsume the role of another, and do not ever allow a branch to abdicate its role to another. We lose what the founding fathers (and God) intended.

    I simply don’t know how else to say it. I couldn’t care less about Awlaki. I don’t give two sh*** about him. He is a small fry anyway. He is dead. May his memory live in ignominy.

    My problem isn’t with killing him. My problem is the way that this came about. So if you’re wondering if, after granting citizenship, there is any way to part company with a citizen? Of course. It is a public thing, being a citizen. Breaking this covenant should be equally as public. When an individual doesn’t live up to his or her obligations, covenant is broken. Make it official and public. When a man is unfaithful to his wife, you don’t hire hit men to kill him in secret. You break covenant with him (because he already broke covenant with his wife).

    You, sir, don’t ever, ever want to be in a position where a set of courts where judges who went to Harvard, Yale and Emory decide on your fate outside of due process. Give me a jury of my peers any day. I’ll sit before the folks who live on my street way before I’ll answer to some centralized power.

    Finally, don’t think for one fleeting second that our government, or any single branch of our government, won’t abuse its authority, with you being the recipient of that abuse. Don’t be naive. Man is wicked. Check and balances sir. In this case, Awlaki’s citizenship should have publicly been revoked after the evidence for sedition had been heard by a jury (take careful note of what I said … a jury … not a judge … a JURY). Then kill him.

    See Glen Tschirgi’s “How Democracy Crumbles: Implosion of the Jury System”

    Your desire to win the GWOT (which I share, remember, I devoted a son to this in the USMC) should not cloud your judgment and cause you so easily to give away your fundamental rights.

  17. On October 1, 2011 at 11:52 pm, Charles said:

    Well we can agree to disagree.

    I can say up front that if you would like politeness than return it. Comments such as “There is no other issue that needs to be addressed in this context.” stifle comments and exchange of ideas. I contributed to the discussion and then you chose to address not the content of the argument but dictate what issues to address.

    I will say that you rinherent trust of government is causing your argument to lose it’s logic.

    I will address this:

    “Finally, don’t think for one fleeting second that our government, or any single branch of our government, won’t abuse its authority, with you being the recipient of that abuse. Don’t be naive. Man is wicked. Check and balances sir. In this case, Awlaki’s citizenship should have publicly been revoked after the evidence for sedition had been heard by a jury (take careful note of what I said … a jury … not a judge … a JURY). Then kill him.”

    Well a jury is part of the judiciary and if you believe any single branch of government, or the government as a whole, will abuse it’s authority, than you can not have it’s cake and eat it too. If you do not trust your legislature, and your executive branch, working in concert, than I see no reason why you should trust a federal prosecutor and a judge. If two branches working together are not valid than there is no reason to put your faith in the third acting alone.

    Again, the organization was declared to be lawful combatants, and the deceased joined it after word. He knew exacty what he was doing…similarly to an American Citizen crossing the Mason-Dixon line to join the Confederacy in 1864. It is quite possible his citizenship was renounced in a private finding–I do not know, but the actions of the Congress post 9/11 were entirely above board because they were directed at an organization which was believed to be composed of other than AMCITs. An American joining a foreign combatant organization is a clear cut choice.

    Life is hard and so are it’s inherent decisions. This one was more clear cut than most.

  18. On October 1, 2011 at 11:59 pm, Herschel Smith said:

    I don’t give two shits about “private findings.” Additionally, my admonition to stay focused was, take it for what it’s worth, an admonition to think logically. Not an admonition not to post.

    Edit: Upon re-reading your comment, did you just invoke the Mason-Dixson line and the Confederacy as an analogue to this incident with Awlaki? Really? Tread lightly henceforth.

  19. On October 2, 2011 at 8:15 am, Warbucks said:

    My comments were confusingly directed to Charles.

  20. On October 2, 2011 at 8:30 am, Warbucks said:

    It would sometimes be useful to have an edit button. I now see you prefaced your remarks to Charles. My eyes did not pick that up until a third reading.

  21. On October 5, 2011 at 8:56 am, Warbucks said:

    Here’s a Robert Redford 2010-directed movie very much on-point as to the questions you raise. “The Conspirator” is the close-up and personal look at Mary Surratt. A quote the seems most pertinent: “In war, the law is forgotten,” seemed to sum up the constant struggle every combatant faces some time.

    I just do not have a problem emotionally, morally or legalistically with killing a US Citizen combatant who has taken up arms against me on the battlefield as Anwar al-Awlaki did. I see no obligation to capture combatants for trial. It seems to me that issue does not raise to the level of complexity that Mary Surratt represented. 

    Within two years after she was hung the Supreme Court said U S citizens were entitled to a civil trial when captured.  I find it difficult to believe and accept that there is a duty to capture alive under all wartime circumstances.     

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This article is filed under the category(s) High Value Targets,Terrorism and was published September 30th, 2011 by Herschel Smith.

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