In response to his increasingly dangerous operational role, the CIA announced that it had added Awlaki to a terrorist hit list; he was the first American to earn this distinction. At the time a secret memo that stated that it would be lawful to kill Awlaki only if he could not be taken alive was written. This memorandum was written after meetings in the White House Situation Room involving lawyers from the State Department, Pentagon, National Security Council, and various intelligence agencies. The secret document provided the justification for killing Awlaki, despite an executive order banning assassinations and a federal law against murder. The Justice Department decided that the killing of Awlaki, who was a member of a “cobelligerent” group (AQAP), was covered by the AUMF. The New York Times called the memo, which legitimized the killing U.S. citizen without a trial, “one of the most significant decisions made by President Obama.”71
In February 2013 a Justice Department memo to the Senate Intelligence and Judiciary Committees that outlined the legal argument for the strikes against U.S. citizens, such as Awlaki, was leaked to NBC. The sixteen-page memo provided guidelines for killing Americans abroad if they were senior members of a terrorist organization and involved in operations against the United States. The memo stated that it is “lawful for the US to target al-Qaeda-linked US citizens if they pose an ‘imminent’ threat of violent attack against other US citizens, and that delaying action against such people would create an unacceptably high risk.”72 The memo required that the capture of American citizens involved in terrorism had to be deemed unfeasible before lethal operations could be carried out against them. Awlaki, who was involved in ongoing terrorist operations against U.S. citizens and guarded by pro–al Qaeda tribesmen in a remote corner of Yemen, certainly fit the criteria covered in the memo.
The United States subsequently pressured the Yemenis to arrest this major al Qaeda recruiter and planner. On one occasion Yemeni troops surrounded a village where Awlaki was hiding out with tanks, but he managed to escape. The JSOC subsequently made several well-publicized attempts to kill him with drones in Yemen.73
These developments caused considerable controversy in the United States. The idea that the U.S. government could execute a U.S. citizen with no judicial process based on secret intelligence made many uneasy.74 One counterterrorism official, however, responded to criticism by saying, “American citizenship doesn’t give you carte blanche to wage war against your own country. If you cast your lot with its enemies, you may well share their fate.”75 The Wall Street Journal similarly opined, “Perhaps al-Awlaki’s U.S. citizenship gave U.S. officials pause, but after he joined the jihad he became an enemy and his passport irrelevant.”76
In response to these extraordinary developments, Awlaki’s father, Naseer Awlaki, sued CIA director Leon Panetta and Defense Secretary Robert Gates with the support of the ACLU. The senior Awlaki described his son somewhat implausibly as an “all-American boy.” The ACLU lawsuit claimed that the Obama administration had given itself “sweeping authority to impose death sentences on American citizens.”77 In December 2010, however, a federal judge threw out the lawsuit claiming that Gates and Panetta were immune from lawsuits and that Awlaki’s father did not have the standing to file the suit.78 In essence the judge ruled that the court did not have the right to overrule President Obama (the executive branch) in wartime on matters involving war.
In March 2010 the ACLU filed a Freedom of Information of Act lawsuit that demanded that the CIA release information on the drone strikes. According to the ACLU website,
The public has a right to know whether the targeted killings being carried out in its name are consistent with international law and with the country’s interests and values. The Obama administration should disclose basic information about the program, including its legal basis and limits, and the civilian casualty toll thus far….
Recent reports, including public statements from the director of national intelligence, indicate that U.S. citizens have been placed on the list of targets who can be hunted and killed with drones.79
This suit was also thrown out in September 2011 by a federal judge who stated that the ACLU did not have the right to access information on the CIA’s secret programs.
Then, on September 30, 2011, news came from Yemen that made headlines around the world. Awlaki and five companions had been tracked down and killed by a CIA Predator missile while they traveled across the north Yemeni desert in a truck. An eyewitness gave the following account of their assassination: “The witness said Awlaki was travelling in a pick-up with six other people on their way to neighboring Marib province. They stopped for breakfast in the desert and were sitting on the ground to eat when they spotted drones, so they rushed to their truck. A Hellfire missile fired from a drone struck the truck, leaving it a charred husk and killing all of those inside.”80
Because his vehicle had been carbonized in the attack, Yemeni sources were “100% sure” Awlaki was dead. Killed alongside him was another American who had thrown in his lot with al Qaeda, the Pakistani-born Samir Khan. Khan was naturalized in his youth as a U.S. citizen and grew up in New York. He was the editor of Inspire and had once proclaimed, “I am proud to be a traitor to America.”81 Among other articles he published in the magazine was “How to Make a Bomb in the Kitchen of Your Mom.”
Awlaki’s assassination revived the controversy surrounding the drone strikes, and Jameel Jaffer, the ACLU’s deputy legal director, said the killing violated U.S. and international law. He said, “As we’ve seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public, but from the courts.”82 Samir Khan’s family released a statement that asked, “Was this style of execution the only solution? Why couldn’t there have been a capture and trial?”83
Libertarians and Muslim advocates further claimed that Awlaki and Khan had been denied their Fifth Amendment rights to protection from governmental legal abuse, including their right to due process. Republican presidential contender Congressman Ron Paul, a libertarian, said, “He was never tried or charged with any crime…. 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.”84
His son, Senator Rand Paul, also a libertarian, would go even further by launching a thirteen-hour filibuster in March 2013 in an attempt to delay the hearing on Obama’s nominee for CIA director, John Brennan. Paul said, “I will speak as long as it takes until the alarm is sounded from coast to coast that our Constitution is important…. That your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty.”85 Paul summed up his aims saying, “I’m here to filibuster John Brennan’s nomination to be director of CIA…. I will speak for as long as it takes. I will speak today until the president says, ‘no’ he will not kill you at a café.”86 In a statement critics called fear mongering, but that was applauded by the Code Pink antidrone movement, Paul said, “That Americans could be killed in a café in San Francisco or in a restaurant in Houston or at their home in Bowling Green, Kentucky, is an abomination.”87