Friday morning, a drone strike in Yemen blew away Anwar al-Awlaki, a jihadist born in the United States. In theory, Awlaki’s U.S. citizenship entitled him to “due process of law” before being killed. But in practice, citizenship doesn’t matter. If we deem you an al-Qaida terrorist and send a drone to get you, your death warrant has already been signed.
Don’t cry for Awlaki. He got what he deserved. He left this country to wage war against it. Instead of risking his own life, he sent others to do his dirty work. Through Internet videos, email correspondence, and personal appeals, he inspired and incited the Fort Hood shooter, the underwear bomber, and the Times Square bomber. From thousands of miles away, he pulled their strings. They were his human drones.
He died the same way. Machines controlled by distant operators appeared above him and blew him to pieces. A man who had killed Americans without being here was killed in Yemen by Americans who weren’t there.
Awlaki is the latest in a series of senior terrorists exterminated by drones. These killing machines, backed by human spies, attendants, and analysts, have evolved to prey on the predators of our time. But Awlaki adds a new complication: his citizenship. We didn’t arrest and try him. We didn’t even give him a military hearing. We simply gathered intelligence and decided to kill him. Civil libertarians say this violates a Constitutional rule: No citizen may be “deprived of life, liberty, or property, without due process of law.”
Since Awlaki’s death, the Washington Post and New York Times have indicated that the Obama administration considered this question last year when he was put on the list of targeted terrorists. According to the Times, “The Justice Department’s Office of Legal Counsel eventually issued a lengthy, classified memorandum that apparently concluded it would be legal to strike at someone like Mr. Awlaki in circumstances in which he was believed to be plotting attacks against the United States, and if there was no way to arrest him.” Another Times story says,
The administration’s legal argument in the case of Mr. Awlaki appeared to have three elements. First, he posed an imminent threat to the lives of Americans, having participated in plots to blow up a Detroit-bound airliner in 2009 and to bomb two cargo planes last year. Second, he was fighting alongside the enemy in the armed conflict with Al Qaeda. And finally, in the chaos of Yemen, there was no feasible way to arrest him.
The second of these three criteria—fighting alongside the enemy—is considered sufficient grounds for targeting a foreigner. The first and third—imminence of attack and feasibility of arrest—come into play only for U.S. citizens. By deduction, they are the due process test. If a U.S. citizen fighting alongside al-Qaida poses an imminent threat and can’t feasibly be arrested, we can send a drone to kill him.