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Assassinating Awlaki

11:02 AM, Apr 8, 2010 • By JOHN MCCORMACK
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Andy McCarthy writes that President Obama's authorization of the targeted assassination of Anwar al-Qalaki is "obviously the right call."

We are at war against al Qaeda under an authorization from Congress. Anwar al-Awlaki, a purportedly American-born Islamic cleric, who is now operating in Yemen, ministered to the 9/11 hijackers, inspired the Ft. Hood assassin, probably directed the would-be Christmas bomber, and is believed to be orchestrating and recruiting for violent jihad operations against the United States. The president is the commander-in-chief with primacy on questions regarding the conduct of war. Even if we were to accept for argument's sake that at issue is a legal rather than a political judgment, Supreme Court precedent (the World War II era Quirin case and the 2004 Hamdi decision) hold that American citizens who fight for the enemy in wartime may be treated as enemy combatants, just like aliens.

NR's Kevin Williamson has some concerns:

It is not impossible to imagine a president who, for instance, sincerely believes that Andy McCarthy is undermining the Justice Department's ability to prosecute the war on terror on the legal front. A government that can kill its citizens can shut them up, no? I ask this not as a legal question, but as a moral and political question: How is it that a government that can assassinate Citizen Awlaki is unable to censor Citizen McCarthy, or drop him in an oubliette? Practically every journalist of any consequence in Washington has illegally handled a piece of classified information. Can the president have them assassinated in the name of national security? Under the Awlaki standard, why not?

McCarthy responds:

The examples you give of me frustrating DOJ and the reporter mishandling classified information are good ones for making this point. The category of person our government may lawfully kill or capture in wartime is "enemy combatant" (or "enemy belligerent," the term Congress used in the last amendment of the Military Commissions Act, in 2009). To fit into this category, one would have to fall within Congress's target in the 2001 Authorization of the Use of Military Force or within Congress's subsequent definitions of enemy combatants. The AUMF authorizes force against "those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons." The later statutes brand as an enemy combatant or belligerent (a) members of al Qaeda, (b) one who engages in hostilities against the U.S. or its coalition partners, and (c) one who purposefully and materially supports hostilities against the U.S. or its coalition partners (the last category is controversial). My carrying out lawful activities that have the effect of frustrating DOJ would clearly be outside these definitions. The reporter engaging in the illegal handling of classified information may violate several laws, and may thus be prosecuted, but does not become an enemy combatant or belligerent who may lawfully be killed.

It's worth reading the full exchange between McCarthy and Williamson here, here, and here.

Update: See Williamson's latest response here and McCarthy's rejoinder here.

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