Targeted Killing or Assassination? Legality in the Death of Anwar al-Awlaki

Anwar al-Awlaki remains one of the most prominent and controversial figures to ever be linked to Al-Qaeda and Al-Qaeda in the Arabian Peninsula (AQAP). Even more controversial than al-Awlaki’s life itself has been his death, which was one of the first uses of the United States’ highly controversial policy of targeted killings.

The success of this operation has led the United States down the path of accepting targeted killing missions as a standard in counterterrorism operations. With the appointment of Avril Haines as the Director of National Intelligence (DNI), the issue of targeted killings will again resurge in the American consciousness, especially considering her support for the policy.

This necessitates a reexamination of targeted killings and their validity in international and domestic law in addition to their effectiveness as a counterterror policy. In this article by Alan Cunningham, a graduate student at Norwich University pursuing an MA in International Relations, we examine such validity and effectiveness.

Targeted Killing or Assassination?

While I am too young to recall the contemporary reactions, concerns, and arguments made in response to the Anwar al-Awlaki killing, approaching this topic, I was under the impression that the United States did not act accordingly. This was concerning Executive Order 12333 (EO 12333), one of the most consequential legal documents for the U.S. Intelligence Community (IC).

The document explicitly states, “No person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in assassination”. In the terms of the al-Awlaki killing (and in the killings of others killed by drone strikes), assassination is not used, but rather “targeted killing”, which some regard as an aphorism for assassination.

Targeted killing, as defined by Nicholas Rostow of the National Defense University (NDU), is “the killing of specific individuals because of their involvement in terrorist organizations and operations”. While some have argued that al-Awlaki’s death was a violation of EO 12333, others, such as those on the national security blog Lawfare, have made the case that, “E.O. 12,333 has little independent significance for the U.S. government’s current targeted killing program. Moreover, the President can, at any time, revoke or modify executive orders, such that, insofar as E.O. 12,333 poses any real bar to the U.S. government’s targeted killing program, the President is legally free to remove it at any time”.

Upon examining the legal uses of targeted killing, the terminology and statutes in use by international organizations, and the actions of al-Awlaki, I am under the impression that the U.S. did act accordingly in their targeted killing of al-Awlaki under the standards of both domestic and international law.

Background of Anwar al-Awlaki

Anwar al-Awlaki was a US citizen by birth and had lived in Yemen from the ages of seven to eighteen, upon which he returned to the U.S. to study engineering before he became more enthusiastic about Middle Eastern politics and Islam as a whole after vacationing in Afghanistan in the early 1990s. 

In the aftermath of the September 11^th attacks, he was questioned by the Federal Bureau of Investigation (FBI) for having had rather close ties to three of the five hijackers aboard American Airlines Flight 77. Yet the Bureau, “acquired no further incriminating information on any possible connection between him and al-Qaeda”. 

Though the Bureau did not find enough evidence to criminally charge al-Awlaki nor directly link him to the attacks, Representatives of the House Intelligence Committee, staffers on the 9/11 Commission, the Inspector General for the Department of Defense, and individual members from the FBI and CIA all hold that he played a much larger role and was knowledgeable of the plot.

It was after this period that Awlaki left the US and moved to Yemen where he became more heavily involved in radical elements of Islam. After a short spell in prison, Anwar al-Awlaki, “… joined Al Qaeda in the Arabian Peninsula. He called on all Muslims to attack America and began to participate in active plotting against the United States, helping to recruit and coach a young Nigerian, Umar Farouk Abdulmutallab, who attempted to blow up an airliner on Christmas Day in 2009 over Detroit. Anwar al-Awlaki also appears to have played an important role in the dispatch in October 2010 of bombs hidden inside printer ink cartridges on cargo planes headed to the United States,” though that final plot was stopped by a Saudi tip. 

Not only was al-Awlaki directly linked to that terrorist mission, but other evidence indicates linkages to various other terrorist acts committed since 2002 (including the 2009 Fort Hood shooting and the 2010 stabbing of MP Stephen Timms).

The Death of Anwar al-Awlaki

In 2010, the US placed al-Awlaki on the U.S.’s list of terrorists approved for targeted killings. As the New York Times was diligent in pointing out, “international law permits the use of lethal force against individuals and groups that pose an imminent threat to a country, and officials said that was the standard used in adding names to the list of targets.

In addition, Congress approved the use of military force against Al Qaeda after the Sept. 11, 2001, terrorist attacks. People on the target list are considered to be military enemies of the United States and therefore not subject to the ban on political assassination first approved by President [Ford]”. 

This move was quite rare and became even more controversial upon al-Awlaki’s killing in 2011. In 2014, due to lawsuits from the ACLU and the New York Times, the US government released documents from the Department of Justice (DOJ) which detailed how the administration utilized the 2001 Authorization to Use Military Force, a document, “unbounded by geographic or time limitations,” which also “authorizes the use of ‘necessary and appropriate’ lethal force against a US citizen who has joined such an armed force”.

A certain amount of the legal analysis al-Awlaki case indicates that the US could perform targeted killings legally within the bounds provided by international law. Robert M. Chesney, a professor and Associate Dean of Academic Affairs at the University of Texas School of Law, comes to the conclusion (a few months before al-Awlaki’s death) while writing for the Yearbook of International Humanitarian Law that, “The circumstances today with AQAP and al-Awlaki at least arguably are much the same [to the US attack on Osama bin Laden and other al Qaeda members in 1998]. To insist upon plot-specific knowledge in this context would be to provide only an illusory exception to strict imminence, which is to say no exception at all. The temporal necessity inquiry should be read with a degree of flexibility; the state must have substantial evidence to support the belief that the person in question will in fact be involved in further attacks, but the state should not be expected to stay its hand until plot-specific details emerge. Al-Awlaki, on this view, can be killed consistently with IHRL so long as the US government does indeed have substantial reason to believe that he will continue to play an operational leadership role in planned attacks against the United States and that he cannot plausibly be incapacitated with sub-lethal means. IHRL in this specific respect produces much the same result as would IHL, thereby reducing the significance of determining which model controls in the first place”.

In another article for American University’s National Security Law Brief, Benjamin R. Farley, a lecturer at George Washington University and trial lawyer for the Department of Defense’s (DOD) Office of Military Commissions, writes, “The United States is better served by relying on international humanitarian law and al-Aulaqi’s conduct as an operational leader of AQAP to justify his killing. As such a leader, al-Aulaqi has forfeited his protected status by directly participating in hostilities in a non-international armed conflict between Yemen and AQAP. The United States is intervening in that armed conflict, placing it similarly in a non-international armed conflict with AQAP. The United States was thus justified in its use of force against al-Aulaqi so long as he directly participated in hostilities – something he appeared to have been doing continuously until his death”.

The aforementioned Nicholas Rostow has also weighed in on this issue, stating, “America’s use of force against terrorists takes place in the context of “armed conflict.”… if the target is lawful under the laws of armed conflict, a state may use weapons, including weapons delivered by remotely piloted, unmanned aerial vehicles, against such targets. In this sense, targeted killing is high technology sniping. This analysis rests on the premise that the United States is in an armed conflict with al Qaeda as a result of the attacks of September 11, 2001, a conclusion that itself reflects a process of analysis… So far the United States has followed U.S. and international law by engaging in targeted killing as a combat tactic against military targets. Keeping to this line will be clarifying and simplifying even though one may argue that the law does not require treating terrorists as if they were military targets”.

As one can see, despite the controversy surrounding Anwar al-Awlaki’s citizenship and his roles in plotting terrorist actions (providing a role similar to that of a consigliere, albeit a religious and tentative operational one) and recruiting new followers to the movement and the usage of a rather broad US legal statute, it is apparent that the United States acted within parameters allowed by international humanitarian law and had enough available evidence to determine that al-Awlaki was consistently involved in operations that threatened US citizens and were intending to significantly damage the United States.

However, when considering the real-world effects of this tactic (both as a tactical measure and national security policy), I argue that targeted killings are highly ineffective and are unfit for usage in modern warfare and in most counterterrorism strategies by the United States of America.

As many national security scholars have pointed out, decapitation strategies and the targeted killings of leaders within terrorist organizations are largely ineffective. Jenna Jordan, a professor at George Institute of Technology and writer of one of the best works on targeted killings, writes in International Security, “Terrorist organizations that possess characteristics such as bureaucratic forms of organization or substantial levels of communal support are more likely to survive attacks on their leadership than those that do not… Larger and older organizations tend to have more bureaucratic traits than smaller or younger groups, and religious and separatist groups have higher levels of local support than ideologically oriented organizations… My examination of al-Qaida leads me to conclude that targeting al-Qaida is not likely to result in organizational decline or long-term degradation”. In utilizing targeted killing practices against organizations like Al-Qaeda or ISIL, I agree these measures would be quite ineffective due to the hierarchical framework in place.

As well, with the al-Awlaki case, I argue that killing him via these methods was inappropriate and actually did more harm to the United States than good. Not only did this cause an intense domestic debate around the use of drone warfare and the legality of his death, but it also heavily increased recruitment for Al-Qaeda, caused a resurgence in his teachings and served to radicalize members for terrorist actions (the Charlie Hebdo shootings and Boston Marathon bombings being prime examples), and resulted in him becoming a martyr.

Major Charles McNeil of the United States Air Force has commented on this and made a strong case in a paper at the Air Command and Staff College that, instead the United States could have discredited Anwar al-Awlaki by way of releasing, “all of the evidence and information pertaining to his affinity for prostitutes…effectively discredit[ing] him to such an extent that his vast library of messages would become toothless” or engaging in a standard Special Operations Forces (SOF) capture mission with the help of the Yemeni government, charging and bringing him to trial while then also revealing his past record as a solicitor of sex.

With the latter example, the US could have removed a national security threat from the field, disgraced his reputation and made him unattractive to prospective followers, and turned him accountable before a court of law, depriving him of the martyr status. This operation too would have aided in the cementation of the relationship between the Yemeni and United States governments and military.

While Anwar al-Awlaki’s death appears to be a legal one, it was a poor tactical move and has resulted in an increase in his teachings and writings, making him more popular while also resulting in his becoming a martyr to fundamentalist Muslims around the globe. Furthermore, the tactic of targeted killing (especially against an American citizen) has prompted heated debate and discussion about drone warfare that will doubtlessly continue until either reform is adopted to the United States’ current policy on targeted killings or the US military and Intelligence Community limit its’ use. However, given the new president’s lack of public statements on the policy, it seems that targeted killings in wartime and in counterterrorism operations will continue as planned.

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