Law and War

Law and War

Law and War

Law and War

Excerpt

On September 30, 2011, some two weeks after the tenth anniversary of the 9.11 attacks, a Hellfire missile fired from an American predator drone in a remote region of Yemen killed Anwar al-Awlaki. The killing immediately unleashed a storm of criticism, at least in legal circles. A number of legal experts and political actors decried the killing as a stark violation of constitutional rights, American domestic law, and the international law of armed conflict. Speaking for many, Mary Ellen O’Connell, a professor of law at Notre Dame, decried the attack as dangerous, immoral, and criminal. What law authorized the CIA to “take out” al-Awlaki?

Many commentators noted that because al-Awlaki was an American citizen, he should have been protected by the Fifth Amendment’s guarantee of due process. Even those experts who conceded that terror suspects may be treated differently than suspects in “ordinary” crimes insisted that al-Awlaki’s killing raised thorny constitutional questions. The killing appeared difficult to square with the Supreme Court’s ruling in Hamdi v. Rumsfeld. In that critical decision, the Court held that the designation and indefinite detention of an American citizen as an “unlawful combatant” (or as an “unprivileged enemy belligerent,” to use the substitute nomenclature passed by Congress) in the absence of any mechanism of review constituted a violation of due process. If the executive could not constitutionally detain citizens without supplying some modicum of process, how could it engage in the far more radical act of killing? As presidential candidate Ron Paul observed, a targeted killing of Timothy McVeigh, the Oklahoma City bomber, would have been an unthinkable violation of the Constitution.

Other critics saw the killing as a violation of international law. Jameel . . .

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