There has been a lot of controversy lately surrounding Attorney General Eric Holder's speech in which he defended the Obama administration's killing of U.S. citizen Anwar al-Aulaqi. Holder argues in his speech that due process does not imply judicial process, i.e. a trial, since judicial process is not specified in the Constitution. Although he is correct, since the Supreme Court has consistently ruled that due process is liberty, not judicial process, this is a highly unwise argument to make, since many Americans view due process as referring to judicial process. Holder regrettably ignored the many valid and popular justifications for the legality of the killing of al-Aulaqi.
One argument leveled against the Obama administration is that al-Aulaqi was merely a terrorist sympathizer, not a combatant, so his killing was not justified under the laws of war, which only permit the killing of enemy combatants. This calls for a little background information. Al-Aulaqi, a former radical Islamic imam and al-Qaeda propagandist, was also a direct planner of terrorist attacks. In the failed Christmas Day Bombing of 2009, al-Aulaqi not only advocated for the attack, but he helped plan the attack and supply the perpetrator. As RAND counter-terrorism expert Seth Jones said, "Al-Awlaki actually helped get him [the bomber] in a jihadi camp, helped him get access to the underwear bomb and then actually walked him through [it]. He wanted [the bomber] to wait to explode [the bomb] over American airspace." He further instructed the bomber on how to evade capture. In addition, Al-Aulaqi had communicated regularly with Maj. Nidal Hasan, the man responsible for the deaths of 13 U.S. soldiers at Fort Hood, and had not only encouraged Maj. Hasan to carry out the attack, he gave Maj. Hasan his personal blessing to carry out the attack. In the words of al-Aulaqi, "[I] blessed the act because it was against a military target." Going further back, one can see ties between al-Aulaqi and 9/11. In early 2000, al-Aulaqi met with several of the 9/11 hijackers, including Khalid al-Mihdhar, both al-Hazmi brothers, and one other unidentified hijacker. In February of that same year, al-Aulaqi made four calls to Oman al-Bayoumi, who assisted the hijackers, although the FBI is confident that Nawaf al-Hazmi and al-Mihdhar were using al-Bayoumi's at the time. Ominously, al-Aulaqi After the attacks, al-Aulaqi admitted to the FBI of having met with Nawaf al-Hazmi several times, although he did not tell the FBI what they discussed.
Although the above is already a fairly damning implication of al-Aulaqi in terrorism, the acts detailed above are only those in which al-Aulaqi had a direct involvement. His indirect involvement, in the form of radicalizing Muslims and then inspiring them to do terror, has had a far greater impact: he inspired or aided the Times Square bomb plot, the 2010 British Airlines bomb plot, and the 2009 Little Rock recruitment office attack, to name a few. Although some claim that al-Aulaqi acted as a journalist or commentator when he advocated violence against Americans (in the same way that O'Reilly is considered a commentator instead of a combatant despite his calls for war with Iran), this claim ignores al-Aulaqi's direct involvement in inspiring people to kill (many terrorists have cited al-Aulaqi as their inspiration), his recruitment campaigns for al-Qaeda, the fact that he both advocates and plans terror in his speeches (one of his most famous pamphlets, 44 ways to support jihad, calls on Muslims to finance and join jihadi organizations and to undergo weapons training), and his membership in al-Qaeda. These facts, particularly the last one, mean that al-Aulaqi is more similar to a military recruiter, military chaplain, or senior officer than to a journalist. These clear ties to al-Qaeda make it hard to argue that al-Aulaqi is a civilian.
There is also the legality aspect. Critics of the killing of al-Aulaqi argue that it is illegal to kill a U.S. citizen without due process. However, because the U.S. is at war with al-Qaeda, al-Aulaqi's organization, al-Aulaqi is effectively an enemy combatant. U.S. law allows for the killing of the killing of enemy combatants regardless of their citizenship, so this killing was justified. Although it can be argued that the U.S. could just call anyone a terrorist and thus justify killing them, al-Qaeda is a serious enough threat to justify calling them an enemy, as Maj. Matthew Machon and the Inter-American Commission on Human Rights explain, "Statman claims that the United States is entitled to classify operations against al-Qaeda as war...based upon two specific criteria: (a) the gravity of the threat posed by al Qaeda and (b) the impracticality of coping with this threat by conventional law-enforcing institutions and methods. The Inter-American Commission on Human Rights Report on Terrorism and Human Rights in 2002 appears to agree[s] with the assessment of Statman." Maj. Machon is right on both fronts: al-Qaeda has killed over 5,000 Americans, and intimidation of juries and witnesses by terrorist groups plus the difficulty of finding 100% conclusive evidence of al-Qaeda membership makes trials of terrorists almost impossible.
Part (b), the impracticality of law-enforcement, applies particularly well to al-Aulaqi's case. His location in Yemen, deep in the heart of an al-Qaeda stronghold, would have made his capture difficult if not impossible. Trying al-Aulaqi would have just given him an opportunity to rant about his political beliefs for hours, and the fact that he is not a trigger-puller but a support-member in al-Qaeda would make him difficult to convict, especially since civilian courts have a tendency to clear terrorists of their charges (see: Ahmed Khalfan Ghailani).
Finally, al-Aulaqi will not set a precedent for killing Americans. In the U.S. Civil War, the Confederates were all former U.S. citizens, and yet they were killed. Indeed, some Northerners defected to the South, and yet some of them were still killed by Union troops. This precedent of the U.S. being allowed to kill Americans who try to destroy America has been around since 1861, and yet we have not been plunged into a fascist dictatorship. This proves that the U.S. only attacks organizations that pose a great threat to its security, and al-Qaeda is one of those organizations.
So to recap: al-Aulaqi was a confirmed enemy combatant who was directly responsible for several attacks on U.S. citizens and was indirectly responsible for the deaths of many others. His status as a combatant invalidates any claims he could have had to a civilian trial, and the impossibility of capturing him made the drone strike the only viable option.
