Killing Awlaki was illegal, immoral and dangerous
File photo of a US Predator UAV armed with a missile. Attacks by such aircraft have risen in recent days in Libya. (Air Force Photo)
October 1st, 2011
03:48 PM ET

Killing Awlaki was illegal, immoral and dangerous

Editor’s Note: Mary Ellen O’Connell is the Robert and Marion Short Professor of Law and
Research Professor of International Dispute Resolution at University of Notre Dame Law School.

By Mary Ellen O’Connell – Special to CNN

Every American adult knows what an armed conflict is.  The U.S. is engaged in armed conflict in Afghanistan and Libya.  It engaged in combat in Iraq from 2003-2011. Thus, every American knows that the U.S. is not engaged in an armed conflict in Yemen - not a real armed conflict.  Nevertheless, President Obama placed an American citizen in Yemen on a kill list.  Anwar al-Awlaki and several other people were killed on September 30 by a “barrage” of missiles launched from drones operated by the CIA.

The president and his officials know that it is unlawful to kill persons in this way outside of armed conflict hostilities.  So they have been asserting the U.S. is in a worldwide “armed conflict with al Qaeda, the Taliban and associated forces.”  This assertion defies common sense.  So officials also assert we have a right to kill persons who pose an “imminent” threat under the law of self-defense.  In fact, the law of self-defense, found in the U.N. Charter, permits force in self-defense on the territory of a state if the state is responsible for a significant armed attack.  Yemen is not responsible for any significant armed attacks.

So are we seeing a repeat of the famous “torture memo” strategy?  Arguments are being asserted that are just plausible enough to keep Congress, the courts and U.S. allies at bay so targeted killing can continue.  Where we once debated the legality, morality and effectiveness of “harsh interrogation methods”, we now discuss the legality of intentionally killing of suspected terrorists far from any actual armed conflict hostilities.  In other words, the end justifies the means, especially with a plausible-sounding legal cover story.

Extrajudicial killing of terrorists suspects, however, is no more efficacious, lawful or moral than torture. President Obama campaigned against the use of torture, the “global war on terror” and the senseless war in Iraq.  He promised to restore America’s standing in the world.  He spoke of the importance of adhering to the rule of law and our values in facing the challenge of terrorism and other problems.

In 2001, the U.S. Ambassador to Israel, Martin Indyk, stated on Israeli television the U.S. position regarding Israeli targeted killing of suspected terrorists: “The United States government is very clearly on the record as against targeted assassinations.  They are extrajudicial killings, and we do not support that.”

How could we?  Killing in war is justifiable morally and legally because of the extraordinary situation of real hostilities.  In the limited zones on the planet where two or more contending armed groups fight for territorial control, people are on notice of the danger.  In such zones, the necessity to kill without warning is understood.  Still, even in combat, there are rules.  Civilians may not be directly targeted; principles of necessity and humanity restrain.

Where no such intense armed fighting is occurring, killing is only justified to save a human life immediately.  Peacetime human rights and criminal law prevail.  The actual facts of fighting determine which rules govern killing.  The president has no override authority.

Nor should he want it.  These rules apply globally.  The U.S. should not weaken them, providing a basis for Russia, Iran, China or Pakistan to declare war against opponents, killing them anywhere with missiles and bombs.

And what about within the U.S.?  If the president can target suspects in Yemen, why not here?  And why just the president?  Why can’t governors order missile strikes on suspected terrorists and other criminals?

We are told with respect to targeted killing - as we were with torture - that post-9/11 circumstances require extraordinary measures.  Some of our leading ethicists countered that the absolute ban on torture must be respected as a moral imperative, regardless of the consequences. We could say the same about targeted killing, but, as in the case of torture, it turns out that doing the moral thing is also the effective thing.

Torture is an unreliable means of interrogation that trained interrogators reject.  Leading counter-terrorism experts similarly reject the use of military force in efforts against terrorism.  Terrorists seek to undermine lawful institutions, to sow chaos and discord and to foment hatred and violence.  Upholding our lawful institutions, holding to our legal and moral principles in the face of such challenges, is not only the right thing to do - it is a form of success against terrorism that can lead to the end of terrorist groups.

The killing of Anwar al-Awlaki and several persons with him on Friday in Yemen did not occur in a battle zone.  The killings occurred in a country in the midst of upheaval with various armed and unarmed factions struggling for control.  The United States should be encouraging non-violence in Yemen, respect for human rights and the rule of law.  Instead, we have engaged in lawless violence, denying our own citizens fundamental due process.

The views expressed in this article are solely those of Mary Ellen O’Connell.

Post by:
Topics: Ethics • Global • Law • President Obama • Terrorism

soundoff (177 Responses)
  1. Sidewinder

    Well, this lady obviously doesn't know much about conflict, I quote:

    "It engaged in combat in Iraq from 2003-2011."

    There are still people there. Still getting shot at. They are my friends, and they are still there getting blown up and shot at. So you tell me Mary Ellen O’Connell, is that not combat???

    October 4, 2011 at 9:06 am | Reply
    • DFOX2116

      i hear you, she is seriously out of touch with both the current situation today and the reality of war. The US is fighting conflicts today all over the world whether its the Phillipines, Somalia, Yemen, AFG, Iraq, Lybia, etc. and if you have a chance to get rid of a terrorist you should take it because you may not get another chance. Any idiot who thinks he should have been arrested needs to get their head examined. its not like he has a zip code and address that he can be found in. he was tracked down with information from Intel sources which is time sensitive. no way are you going to chopper anyone to those remote areas full of terrorists to hand him an arrest warrant and then read him his miranda rights. lol!!! some people just dont get it and probably never will

      October 4, 2011 at 11:22 am | Reply
  2. Ken

    ". . . and several other people were killed on September 30 by a “barrage” of missiles launched from drones operated by the CIA." where is the justification for the killing of the "others"? Were they American traitors? Were they terrorists? or were they just unfortunate in being near the intended target? We don't know, do we. perhaps they were citizens of Yemen. How do we justify "collateral damage" in a country, like Paki9stan and Yemen, with which we are not at war?

    October 4, 2011 at 11:33 am | Reply
    • DFOX2116

      First off since the story doesnt say what they were lets not right off the bat believe they were simple farmers on a picnic. Justification? simple.. collateral damage! we do not have to be at war with Yemen to assist them with their war on terror. we are operating on their soil with their permission, any collateral damage resulting from the death of any terrorist regardless of how sad it is im sure they have procedures for that. All these things are worked out before any permission is given to conduct operations. and by the way you cant blame the drone if a terrorist is hiding behind the skirt of a human shield when killing time comes civilian casualties are always avoided as much as possible but sometimes its going to happen.

      October 4, 2011 at 12:16 pm | Reply
  3. JFU

    TO OPEN EYES 1ST : You speak as if this was a civil court action or an action against a litter bug. We are not talking about a civil law suit, we are talking about predators within everyones society. We have these dregs of society that have declared war against a society, religious beliefs, lifestyles, who the heck made them the hall monitors of the world. If you are a predator then you threaten me and everyone around me. These people have taken upon themselves to break the law of human nature and law of the land for their own beliefs and there is no compromise. If we felt that roaches have the right to feed on trash and invade our homes then we would be overrun with them, more than we are now. These peoople feed on the weakness and vulnerability of others within their own society including childern. I say again they are predators and predators lose the right on the planet.

    October 4, 2011 at 3:46 pm | Reply
  4. Jy974

    I guess that killing Jesse James, the Daltons, Bonnie and Clyde were also bad...

    If it was that bad.. Why staying here? Why not going to Afghanistan, Yemen and Indonesia to capture the bad guys and show us how to do it the right way? Knocking at their door and asking them to surrender? Talking is cheap.. especially when people don't have anything to lose.

    October 4, 2011 at 3:53 pm | Reply
  5. Ron

    Wasn't the killing of Bin Laden performed in a country which is not in a state of war with the US?

    October 4, 2011 at 10:16 pm | Reply
    • viiit

      Wherever they killed him, the good news is that he is DEAD!

      October 7, 2011 at 5:57 pm | Reply
  6. tare

    The ends doesn't justify the means. Why do we even need to debate this? In this case, the possibility of collateral damage is enormous, since there is but one legitimate target. Other persons found near him are not legitimate targets and committing acts of war in a country that we are not at war with will only lead to further trouble of the exact kind that we are trying to end!!!

    October 4, 2011 at 10:38 pm | Reply
    • DFOX2116

      TARE its already been explained!!! we are operating in that country with the permission of the Yemeni Government! that drone didnt just show up there we are flying those drones in Yemeni Air Space with the permission of their government to hunt down Al Qaeda in the Arabian Peninnsula. Collateral damage is already worked out between the governments before any permission is given to conduct operations. educate yourself on these matters before you post dumb statements.

      October 4, 2011 at 10:57 pm | Reply
    • viiit

      In many cases ends do justify means. For example the when the end is to prevent crime, we may execute the criminal. Execution is horrible always, but it could save lives, so we justify the means (killing the criminal) by the end (prevention.)

      Likewise in war, in WWII we killed millions of German civilians. This is horrible and immoral, but the end was to defeat Nazism and killing civilians was part of the necessary means towards that goal.

      October 7, 2011 at 5:56 pm | Reply
  7. Common Sense

    Mary Ellen....so naive. Freedom isn't free. You have an extreme lack of understanding today's world. We are at war with non-state actors that require asymetrical strategy. Jump out of your nice, legal jurisprudence mindset and think like a 21st century intellectual, and you just might understand the cause and justification of the elimination of this terrorist.

    October 5, 2011 at 7:20 am | Reply
  8. Surfing

    If we continue to do that THERE IS NO DIFFERENCE BETWEEN IS AND THEM" who can use the same argument against us. READ AGAIN " Where no such intense armed fighting is occurring, killing is only justified to save a human life immediately. Peacetime human rights and criminal law prevail. The actual facts of fighting determine which rules govern killing. The president has no override authority.Nor should he want it. These rules apply globally. The U.S. should not weaken them, providing a basis for Russia, Iran, China or Pakistan to declare war against opponents, killing them anywhere with missiles and bombs.
    And what about within the U.S.? If the president can target suspects in Yemen, why not here? And why just the president? Why can’t governors order missile strikes on suspected terrorists and other criminals?

    October 5, 2011 at 1:46 pm | Reply
  9. Surfing

    If we continue to do that THERE IS NO DIFFERENCE BETWEEN US AND THEM" who can use the same argument against us. READ AGAIN " Where no such intense armed fighting is occurring, killing is only justified to save a human life immediately. Peacetime human rights and criminal law prevail. The actual facts of fighting determine which rules govern killing. The president has no override authority.Nor should he want it. These rules apply globally. The U.S. should not weaken them, providing a basis for Russia, Iran, China or Pakistan to declare war against opponents, killing them anywhere with missiles and bombs.
    And what about within the U.S.? If the president can target suspects in Yemen, why not here? And why just the president? Why can’t governors order missile strikes on suspected terrorists and other criminals?

    October 5, 2011 at 1:48 pm | Reply
  10. nobody

    The author of this piece of crap waste of bandwidth is an idiot

    October 5, 2011 at 8:53 pm | Reply
  11. MJ

    Nuke the entire Middle East...problem solved.

    October 5, 2011 at 10:12 pm | Reply
    • viiit

      Well, I think we should start with nuking Mecca.

      October 7, 2011 at 5:51 pm | Reply
  12. viiit

    Mary Ellen, you said: "The president and his officials know that it is unlawful to kill persons in this way outside of armed conflict hostilities. So they have been asserting the U.S. is in a worldwide “armed conflict with al Qaeda, the Taliban and associated forces. This assertion defies common sense.'

    As far as I am concerned "we ARE in armed conflict with al Qaeda", and this assertion does not defy my common sense!
    What about many people such as myself, who think that we are in global conflict with al Qaeda?

    Secondly, within United States, if we can target the suspect, then we also arrest him. This is not the case with Bin Laden, or Awalaki. Your analogy is a "straw man" logical fallacy.

    Similarly the analogy with targeted killing is faulty, since unlike killing of enemies, torture, is not allowed under the United States law.

    Today's war do not necessarily involve fighting in a local territory. It is global just like the Internet.

    I think that targeted killing is morally superior to war: If we managed to kill Hitler and his inner circle in 1938, we might have prevented WWII and the death of 60 million people.

    This same logic applies today, to both United States and Israel today. Killing a few leaders seems to be morally superior to and all-out war and occupation that would be needed for arresting the terrorist.

    October 6, 2011 at 4:58 pm | Reply
  13. Tiff

    OMG how can you say that we are not in conflict with Yemen and they are ot responsible for any attacks? USS Cole ring a bell?? It was parked in Yemen and attacked by yemeni al quaida members.. and this guy was buddy buddy with the yemeni president! A known terroist and traitor to the united states.. they knew we wanted him and they helped hide him.. just like the saudi's hid Bin Laden... we knew it and stopped playing their games and went in and got the job done.. finally!
    Sometimes in matters of safety you cannot be 100% "politically correct".... worrying about political correct ness is why we have been over there for so long!

    October 9, 2011 at 4:08 pm | Reply
  14. Scotth

    I am extremely critical about many things regarding how President Obama handles the Presidency. However, this is not one of them. I applaud his use of drone strikes against our enemies. Awlaki was Al Queda's top recruiter! What is the problem? Sorry folks, but this isn't the Cold War. Our enemies don't wear uniforms, and our enemies target civilians in office buildings. So, that's what we have today, and I think Barack Obama had a "come to logic" moment upon seeing the intel when he came to office. However, the American Left and the Hollywood Left, seem to be living in denial about what we are up against, and what the stakes are.

    October 11, 2011 at 12:41 pm | Reply
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