The death of Anwar al Awlaki by a predator drone strike last week has sparked a heated debate about the legality of the act. Constitutional bloggers are hysterically claiming that the president has set a precedent of murdering United States citizens without a shred of due process, and even republican candidate Ron Paul has stated that Obama should be impeached for this “assassination”.

The problem with all of these arguments is that they are confusing wartime actions with peacetime law enforcement.  The two are not the same.  Before I continue, I’ll say up front that I consider fighting Islamic extremism to be a war.  We have the same intent as any war we have fought in the past, but it’s different in character because we now oppose a global sub-state phenomena, not a state we can officially declare war against. I’m not alone in this belief either.  It has been the official U.S. stance since 9/11, which is why the terrorists at GITMO will be tried by military tribunal instead of civilian courts.  If that weren’t enough, al Qaida themselves certainly consider it a war, and have said so on numerous occasions.  

Prior to 9/11, we treated all terrorist actions as individual crimes, and in some cases, that was correct, given the circumstances.  In the case of al Qaida, it was not.  The line is not black and white, and I’m not saying we should send the next Timothy McVeigh or D.C. sniper to GITMO in a knee-jerk reaction, but there is a line.  It was easier to discern in World War II, no doubt, but we dealt with such issues even in that era.  In 1942 two German saboteur teams infiltrated America with the intent of destroying U.S. industrial infrastructure.  They were caught by the FBI, and Roosevelt wrangled with the decision of whether to try them in federal or military court.  In the end, he chose a military tribunal, the first on American soil since the Lincoln assassination.  The story itself is fascinating, and if you changed the names and dates, reads almost like a modern day terrorist plot, complete with mistakes and turncoats we see in modern day terrorists that allowed us to unravel the conspiracy. 

One of the arguments made against a claim of wartime powers is precisely that we haven’t declared war, thus there is no legal basis for invoking them. Al-Awlaki’s death occurred within a state with which we weren’t “at war”, and is therefore illegal.  This is a little specious, as the constitutional framework for a formal declaration of war is designed for state-on-state violence.  Al Qaida is not a state, and thus it’s hard to formally declare war against them in accordance with the constitution.  Congress did recognize the dilemma and drafted a joint resolution shortly after 9/11 that stated,

“That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” 

It was signed into law on September 14th, 2001, and is the justification that the Obama administration used for targeting al –Awlaki.  (in a shameless plug, it’s also what generated the title for my next book, All Necessary Force, out January 17th.  Pre-order now on the link to the right.  Okay, back to the blog.)

Given that we are at war with al Qaida, the rules of engagement change drastically from peace-time law enforcement.  International law states there are two major divisions in conflict:  Combatants and Non-combatants.  The first you may attack at will.  The second you may not attack at all.  The only protection afforded a combatant is if he or she is attempting to surrender, or is physically incapable of fighting – IE wounded or otherwise incapacitated.  Other than that, you can shoot, bomb or stab them all you want.  Note that, in accordance with the law of land warfare, you don’t have to afford them the opportunity to surrender.  You just can’t attack them after they have stated they wish to do so.  In other words, a soldier doesn’t need to scream, “Surrender or I shoot!” on the battlefield.  He simply shoots.  This is why an ambush is a perfectly legitimate tactic, defined by the army as “a surprise attack from a concealed location on a moving or temporarily halted target.”  It’s also why a drone attack, merely a form of ambush, is also legal – provided the target is a legal combatant.

Herein lies the rub.  What constitutes a “combatant”?  A soldier in uniform is easy, but combatant extends further.  A civilian whose primary job is building tanks is also a combatant.  Simply because he happens to be working does not afford the factory protection as harboring non-combatants.  He’s aiding the war effort, and has become a legal target.  Note that the term “civilian” and “non-combatant” are not the same.

This is the crux of the breakdown in the al-Awlaki argument.  Nobody is arguing that al-Awlaki was a good guy.  Nobody states he wasn’t helping al Qaida.  Simply that he was a U.S. citizen and therefore should be considered differently from the Taliban we kill in Pakistani drone strikes.  But U.S. citizenship doesn’t protect you if you materially conspire to harm our nation.  Period.  It has nothing to do with indictments, the 5th amendment, renouncing citizenship, or any other thin legal wrangling.  It is what it is.  In a time of war, if you choose to help the enemy, you become a combatant.  You are afforded the same protections as any other combatant, namely that you’ll be treated well when you surrender, but you don’t get extra protection simply because you had the good fortune to be born on American soil.  Once again, World War II provides an example.  There are multiple instances where U.S. citizens of German heritage fought against the United States.  At least eight were killed on the battlefield fighting for the Waffen SS.  None were given special consideration because of their citizenship.  At the furthest extreme of the argument, Lincoln should have been impeached immediately at the conclusion of the Civil War because he had slaughtered hundreds of thousands of U.S. citizens.  Not a one of them were afforded “due process” or charged with a crime.

One variation of the “good guy” argument is that al Awlaki was simply proselytizing, and while his statements were harmful to the United States, as an American citizen, his speech was protected by the first amendment.  While I find that argument extremely naïve, once again, there is precedent in WWII.  Mildred Elizabeth Gillars was an American citizen of German descent.  She was known as “Axis Sally”, and broadcast propaganda on the radio in the European theater of operations.  She was arrested after the war and convicted of treason.  But why?  Surely she was protected by the first amendment!  Nope.  The court found she had materially aided the enemy, and had become a combatant.  Just like al Awlaki.  It was just her good luck she wasn’t killed during the fighting.

One issue that has generated a lot of attention is the so-called “kill list” that exists.  To read Reuters explanation, one would think there’s a secret cabal of men, hidden in the shadows deep in a back room of Old Executive Office building, unaccountable to the legislative branch, and selecting targets for execution.  Hey!  It’s the Oversight Council!  I knew those bastards existed!  Guess I can’t write about them anymore as fiction, since it’s now come to light. 

Not really.  In fact, the “targeting list” is simply an extension of the argument above.  Determining combatants in state-on-state violence is fairly easy.  Against a sub-state threat, precisely because the enemy hides within the non-combatant community, using the protections afforded non-combatants, it’s much harder to determine.  This is where the “secretive” targeting list comes in.  It’s not a “kill” list.  It’s simply a collection of designated combatants.  The analysts aren’t trying to determine if someone “deserves to die”.  They’re simply trying to determine if Abu X is a terrorist or not.  When the preponderance of evidence shows he’s aiding al Qaida, he becomes a combatant, and is added to the list. 

Far from being a bad thing, the list is a very, very good thing, as its existence shows how far the United States goes to protect non-combatants.  That secretive cabal of men isn’t deciding who gets to die.  They’re actually there as a check to ensure the guy is a combatant before he’s put on the list.  They want to see the proof, even after about 8,000 CIA, FBI, and DIA workers have analyzed it.  If the evidence measures up, the man becomes a legal combatant. As such, he may be attacked in any manner that’s legal by international law, including drone strikes.  Make no mistake, however, we would much, much rather capture the terrorist than kill him outright, precisely because the data-base is chock-full of facebook like blank pictures, where we know someone’s doing operational work, but we don’t know who that is.  A captured terrorist helps fill in the blanks, putting more names against the faces.

In the end, there’s no doubt al-Awlaki was materially helping al Qaida, from 9/11 to the underwear bomber.  He was a legal combatant, and he was legally killed.  Would we have preferred to capture him?  Of course, but that was impossible given the operating environment.  The call was a good one, and it was not a precursor of the future “murder” of U.S. citizens.   You don’t need to worry about predator drones circling your house, unless your house is a mud-hut in Somalia and you’re planning on blowing up a U.S. embassy.