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Awlaki's killing and the Constitution

By MICHAEL KIRKLAND, Senior UPI Legal Affairs Writer   |   July 28, 2013 at 3:30 AM   |   Comments

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WASHINGTON, July 28 (UPI) -- A U.S. citizen overseas is linked to acts of terror in the United States. He repeatedly calls for more American killings. On the run in a foreign desert, he is beyond the reach of the U.S. justice system. So the president, acting to protect the country, orders him killed. A CIA drone strike takes him out in Yemen.

Simple, right?

Maybe not. Do U.S.-born terrorists abroad, in effect fugitives from this country's justice, have the same rights as other Americans protecting them from extra-judicial killings?

The case of Anwar al-Awlaki has all the makings of a possible constitutional crisis in the making, with the president and his executive branch on one side, perhaps joined by the legislative branch, matched up against the federal courts on the other.

At a hearing earlier this month in Washington, a federal judge asked a Justice Department official whether the Obama administration really believed "a U.S. citizen targeted by the United States in a foreign country has no constitutional rights?"

Al-Awlaki was born in New Mexico in 1971, the son of Yemeni parents. His parents returned to Yemen, taking along their 7-year-old son. Though he returned to the United States to earn a college degree and served as an imam at a U.S. mosque, he became increasingly radicalized. He returned to the Middle East a changed man.

Back in Yemen, Awlaki was recognized as a member of al-Qaida, and was convicted in absentia in 2010 in that country for his jihadist activities and the kidnapping of foreigners.

Awlaki became known as the "bin Laden of the Internet." Though during his time in the United States he showed a fondness for gourmet pizza and prostitutes, as a fugitive in Yemen Awlaki was the ultimate hard-line jihadist.

In a video message posted in English on radical websites, Awlaki said a fatwa, or religious ruling, wasn't needed to justify the killing of Americans.

"Don't consult with anybody in killing the Americans," Awlaki said. "Fighting the devil doesn't require consultation or prayers seeking divine guidance. They are the party of the devils."

Al-Awlaki also sent encrypted email messages to his followers, including Maj. Nidal Hasan, the U.S. Army psychiatrist charged with a 2009 massacre at Fort Hood, Texas, though he reportedly did not urge Hasan to do the killings.

The spree occurred one month before Hasan, the U.S. born son of Palestinian parents, was scheduled to be sent to Afghanistan. Shouting "Allah is Great" in Arabic, Hasan opened fire in the fort's Soldier Readiness Center, killing 13 people and wounding 29.

The radical Awlaki also reportedly had ties to Umar Farouk Abdulmutallab, a Nigerian who had concealed plastic explosives in his underwear and unsuccessfully attempted to blow up an airliner over Detroit on Christmas Day 2009.

In a 2012 speech at the Northwestern School of Law in Chicago, U.S. Attorney General Eric Holder defended the use of "lethal force" against terrorists abroad -- even if those terrorists are U.S. citizens.

"It may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack," Holder said. "In that case, our government has the clear authority to defend the United States with lethal force."

Holder cited "the four fundamental law of war principles."

"The principle of necessity requires that the target have definite military value," he said. "The principle of distinction requires that only lawful targets -- such as combatants, civilians directly participating in hostilities and military objectives -- may be targeted intentionally. Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage. Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering."

As for the extra-judicial nature of some of killings overseas, Holder said, the U.S. Constitution guarantees "due process," not "judicial process."

In a Washington courtroom earlier this month, Obama administration officials argued federal judges should not be involved in the policy of using drones to kill terror suspects overseas, even if they are U.S. citizens.

The hearing focused on a Justice Department request to dismiss without trial a complaint by Awlaki's father and others to hold former federal officials accountable for two lethal drone strikes in Yemen -- that against Awlaki and another that, perhaps accidentally, killed his 16-year-old son, SCOTUSblog reported.

The plaintiffs were represented by lawyers from the Center for Constitutional Rights and the American Civil Liberties Union.

U.S. District Judge Rosemary M. Collyer, a George W. Bush appointee, didn't appear to be buying the administration's argument.

"Are you saying that a U.S. citizen targeted by the United States in a foreign country has no constitutional rights?" Collyer asked Deputy Assistant Attorney General Brian Hauck, Boston.com reported. "How broadly are you asserting the right of the United States to target an American citizen? Where is the limit to this? The limit is the courthouse door."

The website said Hauck conceded U.S. citizens targeted overseas do have rights, but said those rights could not be enforced in court -- either before or after they were killed. Hauck suggested judges do not have the expertise to assess the danger posed by terrorists, the probability of capturing them or the conditions under which they could be killed.

Those questions should be left up to the executive branch, which has multiple internal checks to make sure killings are legal, with oversight by Congress, Hauck said.

"No, no, no," Collyer said. "The executive is not an effective check on the executive."

The judge also asked administration officials whether a Bivens claim would apply, Lawfare reported.

Bivens refers to a 1971 U.S. Supreme Court ruling that has been interpreted as creating a right to sue the federal government for a constitutional deprivation. Administration officials replied Congress could create one, prompting Collyer to say that would make it a statutory case rather than a constitutional one.

Lawfare said both administration officials and plaintiffs lawyers had trouble articulating a coherent overarching principle that could apply to all similar cases.

At the end, Collyer indicated she had a lot of reading ahead of her -- implying she may take her time on the administration's request for a dismissal. "I do not consider this a particularly easy set of questions," she said.

From the beginning, Collyer seemed to be surprised at how packed her courtroom was for the Awlaki case. She scanned the crammed room and said, "Holy cow!"

© 2013 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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