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Al-Awlaki Killing In Yemen Raises Constitutional Questions

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ALAWLAKI KILLING
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WASHINGTON - The United States government killed an American citizen in Yemen on Friday in hostile action, despite not having declared war on the country or charging the citizen, American-born Anwar al-Awlaki, with a crime.

In a statement Friday morning, President Obama hailed the killing as "a major blow to al Qaeda's most active operational affiliate." He also said the death "marks another significant milestone in the broader effort to defeat al Qaeda."

Time magazine reported al Awlaki was killed by airstrikes by the secretive Joint Special Operations Command, the same unit that took out Osama bin Laden in May.

A senior defense official echoed Obama's remarks, calling al-Awlaki's death "a decisive blow to al-Qaeda in Yemen ... A very bad man just had a very bad day. It's a good day, though, for American counterterrorism efforts."

American officials added al-Awlaki two years ago to a list of targets whom the military is authorized to kill, a move that raised the consternation and concerns of many civil liberties groups.

"For two years since Awlaki has reportedly been added to a kill list, the administration has made a lot of statements to the press but has presented no evidence to a court," said Ben Wizner, the National Security Project Litigation Director at the ACLU. "There's a distinction between allegations and evidence that's pretty critical here. Our argument isn't that you need to go to a court just to make the claim that he is an imminent threat, but placing someone on a kill list for months or years seems fundamentally inconsistent with the legal definition of 'imminent,' and so there's really no reason why a judicial role can't happen here."

Al-Awlaki graduated from Colorado State University and earned his master's at San Diego State University. Once a moderate cleric and a darling of the U.S. media, al-Awlaki gradually came to believe that violence against the United States was justified.

Glenn Greenwald, a constitutional blogger with Salon.com, appeared on Democracy Now Friday morning to denounce the killing as a step beyond what President Bush had done. "If you are somebody that believes the President of the United States has the power to order your fellow citizens murdered, assassinated, killed without a shred of due process," Greenwald said, "then you are really declaring yourself to be as pure of an authoritarian as it gets."

WATCH Greenwald On Democracy Now:

Experts on Al Qaeda and counterterrorism have been split over the true importance of al-Awlaki to the global jihadi movement, with many experts believing that he was far more influential in the West than he ever was in Yemen, his home.

"He's someone who is much more well known in the West than he is in Yemen," said Gregory Johnsen, a Yemen expert at Princeton. "He's not the number 1, not the number 2, not the number 3 [in Al Qaeda in the Arab Peninsula]. He's not the chief religious leader, not the head bomb maker, he's not any of these roles. But in terms of being someone who inspired so-called 'lone wolf' terrorists in the West -- someone who speaks English, is very charismatic -- that's where he was a unique figure and he will not be as easily replaced."

Aaron Zelin, an expert at Brandeis University on jihadi movements, agreed that Awlaki has greatly influenced English-speaking jihadists, but that his internal significance to the global movement may be overstated or even exacerbated by the American focus on him.

"Part of the problem is Awlaki speaks English, so people in the media here understand what he's saying," Zelin said, adding that Awlaki has only twice released statements in Arabic.

"In the past few years, with the U.S.'s campaign to kill him, he's become much more popular in the Arab world. His work has been translated into Urdu, Arabic, Malay, Russian, Bosnian -- all in the past year. [Without the Western focus] I think he still would have been big in the Western jihadi community, but I don't think he would have been taken as seriously in the global jihadi community."

U.S. officials have insisted that al-Awlaki had shifted in the past couple of years from speaking out against the U.S. to helping to organize attacks against it, though officials have yet to offer evidence publicly in court to back up those charges. Intelligence officials say they have linked al-Awlaki to the Fort Hood shootings in November 2009, as well as to a failed plot to bring down an American airliner in late 2010.

One former state department official told The Huffington Post on Friday that American intelligence evaluations have concluded that Awlaki has taken on a more operational capacity in recent years. He pointed to a recent issue of the Al Qaeda propaganda magazine Inspire, in which an article that American officials believed to have been penned by al-Awlaki was signed "Head of Foreign Operations."

"This happened over the last couple of years," the former official said. "Before that, he was much more of an inspirational leader, but this really changed up after he got to Yemen."

Nevertheless, the internal debate over whether his killing would be legal or appropriate, the former official said, was intense.

"I can tell you the government was really torn on this issue," he said. "There was a lot of hand wringing. It was not an easy call."

"It'll be really interesting to see if the U.S. now comes out and makes the public case about why they killed him," Johnsen said.

Nevertheless, the national security establishment is celebrating his death. Jane Harman is the former chair of the House homeland security subcommittee on intelligence and now president of Woodrow Wilson International Center for Scholars. "It's tricky that he was a U.S. citizen, but he clearly stated his intention to kill Americans and the Justice Department thoroughly vetted the legal issues and this strike was within the law," said Harman.

Frank Cilluffo, director of the Homeland Security Policy Institute at George Washington University said that while Awlaki was a native-born U.S. citizen, "He made his bed. He was obviously targeting the United States and took part in treasonous activity ... He not only joined up but was in the leadership of an organization that has declared war on the United States."

That doesn't excuse his killing, said Mary Ellen O'Connell, a Notre Dame scholar who studies targeted killings. "Derogation from the fundamental right to life is permissible only in battle zones or to save a human life immediately," said O'Connell. "The killing of Anwar Al-Awlaki did not occur in these circumstances. International law and moral principle have been breached in a place where the United States should be demonstrating non-violence and support for peaceful means of transforming society."

Rep. Ron Paul (R-Texas), who is running for the GOP presidential nomination, said that the killing is troubling. "No, I don't think that's a good way to deal with our problems," Paul said after a campaign event in New Hampshire. "Al-Awlaki was born here, he is an American citizen. He was never tried or charged for any crimes. No one knows if he killed anybody. We know he might have been associated with the underwear bomber. But if the American people accept this blindly and casually that we now have an accepted practice of the president assassinating people who he thinks are bad guys, I think it's sad."

Paul noted the different treatment afforded the Oklahoma bomber. "What would people have said about Timothy McVeigh? We didn't assassinate him, and they were pretty certain he had done it. They went and put him through the courts, and then they executed him. To start assassinating American citizens without charges, we should think very seriously about this."

The Fifth Amendment forbids the federal government from depriving any person -- not just American citizens -- of "life ... without due process of law." Last summer, al-Awlaki’s father tried to enforce this fundamental constitutional limitation when he brought suit in federal court to stop the Obama administration’s efforts to assassinate his son without charging al-Awlaki with a crime or bringing him to trial. But the court tossed the suit in December, holding that parents cannot sue on their child's behalf once the child reaches the age of majority.

The ruling left the Obama Administration free to carry out its operation against al-Awlaki, under the justification that his al Qaeda membership made him a legitimate wartime target, American citizen or not.

Mike Sacks and Andrea Stone contributed reporting

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