Anwar al-Awlaki: Is it legal to kill an American in war on terror?

In today’s wars against "nonstate actors" such as Al Qaeda, individuals may be targeted for what amounts to assassination. But when those targets are American citizens, the US confronts difficult legal questions.

The Obama administration says it will use lethal force against Anwar al-Awlaki, an American hiding in Yemen who is thought to be plotting terrorist attacks against the US.

The rare if unprecedented pronouncement underscores just how much of a threat Mr. Awlaki poses to the US. But it also raises an important legal question: Is it legal in the war on terror for the US to target an American citizen?

Born in New Mexico, Awlaki has been linked by intelligence officials to suspected Fort Hood shooter Major Nidal Malik Hasan as well as the would-be Christmas Day bomber, Umar Farouk Abdulmutallab, the Nigerian who attempted to detonate explosives on an American jetliner on its way to Detroit last year.

Awlaki on 'kill-or-capture' list

A report Wednesday in The New York Times indicated that what triggered US officials putting the Muslim cleric on the kill-or-capture list was their determination that he was not only inciting attacks against the US but also “participating” in them.

“Awlaki is a proven threat,” a US official told Reuters news agency. “He’s being targeted.”

Rep. Jane Harman (D) of California, who chairs the homeland security subcommittee on intelligence, calls Awlaki “probably the person, the terrorist, who would be terrorist No. 1 in terms of threat against us.”

“He is very much in the sights of the Yemenis, with us helping them,” Reuters quoted Representative Harman as saying at a recent panel discussion in Washington.

Over the past year, the US has increased the number of militants it has killed or captured, with those killed seeing the most pointed rise, says Thomas Sanderson, deputy director of the transnational threats program at the Center for Strategic and International Studies, a think tank in Washington. That rise is due to a “confluence of factors,” including better intelligence, more targeting, and increased cooperation between the US and Pakistan, he says.

Message: 'We are willing to play hardball'

Announcing that Awlaki is an important new target is probably good public relations in the war on terrorism, he adds. “It sends a message to extremists that we are willing to play hardball.”

It wouldn’t be the first time a US citizen was targeted in Yemen.

In 2002, Ahmed Hijazi, an American citizen, was killed in a drone attack conducted by the CIA. Mr. Hijazi was suspected of leading the group of individuals captured near Buffalo, N.Y., for plotting a terrorist attack.

But for many legal experts, the question remains: Is it legal for the US to target an American citizen?

Targeting Awlaki probably legal

The answer probably is yes, says Mike Newton, a law professor at Vanderbilt University. If the US could prove that Awlaki is a “direct participant” in a conflict – terrorist operations against the US, for example – then killing Awlaki would probably pass legal muster, he says.

“By making that declaration, the administration has at least admitted the possibility that the fundamental obligation of the executive to protect the American people trumps the basic right to life of that individual,” says Mr. Newton.

Since the incidents last year at Fort Hood and Detroit, Awlaki’s stature has risen within the counterterrorism community. He now represents a top leader of Al Qaeda of the Arabian Peninsula, or AQAP, which is emerging as a dangerous new franchise of Al Qaeda globally.

While the fact that Awlaki is an American citizen may raise legal questions about killing him, targeting him outside the US may make it more tenable, says Newton.