Did Anwar Al Awlaki not have the right to be tried and judged for what he actually did, and not what it has been assumed – guessed, even – that he was guilty of?
It was wrong for the US to kill Al Awlaki
Few tears seem likely to be shed over the death of Anwar Al Awlaki, the Al Qaeda-linked preacher killed when Hellfire missiles launched from two American Predator drones struck the vehicle in which he and three others were travelling in north Yemen a week ago. No hankies will be needed in the White House, at any rate. President Barack Obama declared that Al Awlaki was "the leader of external operations for Al Qaeda in the Arabian Peninsula" and had been "planning and directing efforts to murder innocent Americans". His death, said the president, was proof that such terrorists "will find no safe haven anywhere in the world".
Just as when news emerged that US forces had finally tracked down and shot Osama bin Laden, Obama found himself congratulated even by his opponents, such as the Texas governor and Republican presidential hopeful Rick Perry, who said Al Awlaki's elimination was "an important victory in the war on terror". Initially, many may have agreed. Had Al Awlaki not been a spiritual mentor to three of the 9/11 hijackers? Was he not connected to numerous terrorist incidents, from the London bombings of 2005 to the Fort Hood shootings in 2009, plots including those of the "Underpants bomber", Umar Farouk Abdulmutallab, and the Times Square bomber, Faisal Shahzad, and attempts to blow up planes in Britain and America?
But then the doubts crept in. What exactly, beyond calling for violent jihad, could anyone be certain that Al Awlaki was guilty of? Even if he was responsible for terrorist operations, did that justify simply killing him when a sustained and determined effort could have led to his being captured and put on trial?
And lastly, of particular relevance to Americans but of interest to the rest of the world too, there was the small matter of Al Awlaki's nationality. He might have been born to Yemeni parents, but he was a US citizen. Was it actually legal for an American president to order such an extra-judicial execution, or did it violate the constitution that he had sworn to "preserve, protect and defend" on taking office?
The question of what Anwar Al Awlaki may or may not have done was put succinctly by another Republican presidential contender, Congressman Ron Paul, the day the successful drone attack was announced. "He was never tried or charged with any crime. Nobody knows if he killed anyone."
Certainly the dead man's father, Nasser Al Awlaki, a former Yemeni agriculture minister who had been a Fulbright scholar in the US, is convinced that some of the accusations against his son - that he was a key figure in Al Qaeda in the 1990s and knew in advance of the 9/11 attacks - are wrong. In the first interview he gave after Anwar was elevated to "Terrorist Number One" in 2009, Nasser talked of how his son had been raised a "moderate". "If America would stop making him into Osama bin Laden and see Anwar as an educated man, born in the West, who used to love everything about America …" he told The Toronto Star's Michelle Shephard. "He never had an incident of violence during all this life in America or Yemen."
A parent is always likely to give their child the benefit of the doubt, of course, but a more devastating verdict on the question of whether Anwar Al Awlaki was a deserving target comes from Fawaz A Gerges, professor of Middle Eastern politics at the London School of Economics. In his new book, The Rise and Fall of Al Qaeda, published just weeks before Al Awlaki's death, Gerges wrote: "His importance is overblown by Washington. He does not possess any social constituency either inside or outside Yemen … he is no Osama bin Laden."
Perhaps presciently (although we must hope not), he added: "Killing Al Awlaki would transform the fugitive preacher into a martyr and likely further poison Yemeni public opinion against the United States."
Leaving aside the question of Al Awlaki's responsibility for the commission of terrorist acts, of possibly greater importance to Americans is the question of what right their president has to order the death of a fellow citizen without recourse to anything vaguely resembling a trial. Covert killings of Americans by the CIA and other agencies may well have taken place in the past. But this was official, authorised by a memorandum produced by the Department of Justice. "What constitutes due process in this case," said an official involved in the production of the memo, "is a due process in war."
According to the academic Hugh Brogan, whose many books include The Penguin History of the United States of America, Obama's predecessor, George W Bush, "laid the foundations of the idea that if it's war the president may take what actions he deems necessary". But, he says: "I don't know of any precedent for the assassination of an American citizen. If I was his lawyer I would argue that it was illegal."
This is the conclusion to which Ron Paul has now come. The congressman, a maverick libertarian who is highly influential on the Republican right, accused President Obama last week of circumventing the rule of law and acting as though he was not bound by the constitution. "Assassinating American citizens without due process," he said, was "an impeachable offence. We have crossed that barrier from republic to dictatorship, to tyranny."
Paul may not find many allies in America: any challenge he makes will surely wither in the face of a general public that is only too willing to ignore inconvenient legal niceties in the "war on terror". But there are plenty elsewhere who agree. "How can we object to the Russian assassination of Alexander Litvinenko in London," points out Hugh Brogan, "when America feels it is entitled to assassinate Anwar Al Awlaki?"
The eminent philosopher Ted Honderich, author of the celebrated text Terrorism for Humanity, takes a similar line. "This is exactly what we accused the Libyan regime of doing - killing their own citizens," he says. Honderich, emeritus professor at University College, London, believes that Al Awlaki's targeting "very likely is an act of terrorism".
Americans' anger - or what ire there is - at what has happened to a man entitled to bear the same passport as them is a response typical of that exceptionalism to which other countries have grown wearily familiar. US citizens don't seem to be that bothered when non-Americans receive the same rough justice, if that term is even remotely appropriate. But the notion that any leader should feel justified in brazenly announcing that he has the right to kill anyone, anywhere (especially if their skin colour is not white), should be a cause for immense outrage. The US has got away with it because it is the world's sole superpower. President Obama has been given a double pass because so much hope and belief has been invested in him.
Yet these are the actions of a rogue state, not one that declares its aim is to spread freedom, democracy and the rule of law. Bin Laden should, properly, have been captured and brought to trial, rather than executed on the spot. It is, admittedly, hard to muster much enthusiasm to argue for a man whose misguided ideology has inflicted such harm on so many. Al Awlaki's case, however, is different. We may have little or no sympathy for him. But did he not have the right to be tried and judged for what he actually did, and not what it has been assumed - guessed, even - that he was guilty of?
Obama's presumption that he could take Anwar Al Awlaki's life without any legal process comes dangerously close to the assertion of one of his predecessors, Richard Nixon. "When the president does it, that means it is not illegal." We thought he was better than that, didn't we?
As one of those who rejoiced at Obama's election, and who felt it marked the beginning of a different America, one that would show more humility, that would recognise it was part of a community of nations, that would not act unilaterally and ride roughshod over international conventions and law, it pains me to say it: Shame on you, Mr President. Shame on you.
Sholto Byrnes is a contributing editor of the New Statesman.