This is a belated follow up to my article Fighting a World Wide Insurgency: The Problem Fighting Revolutionary Terrorists and Insurgents- Part One . It deals with the killing of American born Al Qaeda cleric and propagandists Anwar al-Awlaki and Samir Khan by U.S. Forces in Yemen. There is controversy in the American media, body politic and among U.S. based civil rights groups such as the ACLU. My premise is that the killing of Awlaki and Khan was justified because of their actions and because the nature of warfare itself has changed radically since the current “Law of War” contained in the Geneva and Hague conventions the U.N. Charter and other international law standards were laid down. The were all written with the nation state in mind, not apocalyptic terrorists that recognize no borders do not differentiate between civilians and military targets and have not regard for citizenship either their own or that of others. Alan Dershowitz the noted jurist, legal scholar and civil libertarian wrote “The great American justice Oliver Wendell Holmes Jr once remarked that “it is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”
Awlaki and Khan were not mere criminals they were enemy combatants and the fact that they were not on a recognizable battlefield when targeted is irrelevant. They played games with their citizenship, never officially renouncing it even as they did everything that they could from a propaganda point of view to wage war against their country and incite others including members of the U.S. Military to kill Americans. Yes, they were combatants waging war and not “victims” of an “assassination” ordered by the President. They knew they were at war and said so quite openly. The provided aid and encouragement to those that killed American soldiers at FortHoodand attempted to bring down a Delta Air Lines jet on Christmas Day 2009. Derschowitz commented on the kind of strike used to kill Awlaki and contrasted it with terrorism saying “A targeted assassination is exactly the opposite of terrorism. Terrorism is untargeted assassination — you just throw a bomb in a cafeteria and you get everybody. Targeted assassination is designed to be very precise and very specific.”
Awlaki, Khan and their fellow Al Qaeda travelers fight a different kind of war than we in the West are comfortable waging. They fight a war where they make no distinction between soldiers and civilians and do not recognize the borders of sovereign nations. Al Qaeda has defined the battlefield and it is not confined to Iraq or Afghanistan. Using secure bases of operations in nations that are officially our “allies,” they have been able to place themselves safely out of harm’s way until the past year while planning, training and propagandizing new recruits into their terrorist cause.
Awlaki stated his opinion succinctly about the kind of war he was waging in an interview in early 2010:
“Yes. With regard to the issue of ‘civilians,’ this term has become prevalent these days, but I prefer to use the terms employed by our jurisprudents. They classify people as either combatants or non-combatants. A combatant is someone who bears arms – even if this is a woman. Non-combatants are people who do not take part in the war. The American people in its entirety takes part in the war, because they elected this administration, and they finance this war. In the recent elections, and in the previous ones, the American people had other options, and could have elected people who did not want war. Nevertheless, these candidates got nothing but a handful of votes. We should examine this issue from the perspective of Islamic law, and this settles the issue – is it permitted or forbidden? If the heroic mujahid brother Umar Farouk could have targeted hundreds of soldiers, that would have been wonderful. But we are talking about the realities of war.” Anwar a-Awlaki comments in interview supporting attempted downing of Delta Air Lines flight on Christmas Day 2009 http://www.memri.org/report/en/0/0/0/0/0/0/4202.htm
The United States killed two men who though technically a “citizens” were declared enemies of theUnited States. By his own words and actions Awlaki declared war against the land of his birth and the land that blessed him with an education that he used for years to encourage other Muslims, especially American Muslims to kill Americans wherever they are found.
The method of his killing appears to be by a targeted drone strike on his hide out in Yemen. His killing has been condemned and it’s legality questioned by a good number of people including Republican Presidential candidate Ron Paul. On the surface I can see their concerns. Any reader of this site knows that I am on the whole with very few exceptions very much a civil libertarian and some will call me a hypocrite but I am okay with that. The fact is that I do not want our government to be engaged in activities that violate the constitutional rights of Americans anywhere in the world. Nor do I want to see Awlaki’s killing used as precedent in killing American citizens not engaged in acts of war against the United States. Critics have contended that Awlaki had not broken the law and that his killing in a country that we are not at war with made the act an illegal assassination under the 5th Amendment while ignoring his goal of mobilizing Muslims worldwide, but especially American Muslims to kill Americans at home and abroad. However even criminal courts in the United States recognize that a person that encourages murder can be charged as an accomplice or even co-conspirator as Awlaki was to the mass murderer of Fort Hood Major Nidal Hussein.
However those that decry Awlaki’s killing ignore his words that “we have to establish an important principle: Jihad is global. It is not a local phenomenon. Jihad is not stopped by borders or barriers; they cannot stand in the way of Jihad. Jihad does not recognize the colonial borders that were made in the countries in the past that were drawn by a ruler on the map; Jihad doesn’t recognize those superficial borders.” (Chapter 3: Constants on the Path of Jihad) The critics of Awlaki’s killing as well as that of Osama Bin Laden and other men that describe themselves as combatants in a war against the United States all encourage the killing of every American because “all Americans are guilty.” Awlaki’s fellow “American” terrorist companion Samir Khan who was killed with him in the attack wrote “I am a traitor to America because my religion requires me to be. We pledge to wage jihad for the rest of our lives until either we implant Islam all over the world or meet our Lord as bearers of Islam.”
Dershowitz noted that “weapons of mass destruction in the hands of suicide terrorists with no fear of death and no home address have rendered useless the deterrent threat of massive retaliation. This threat has been the staple of military policy since the days of the Bible. Because suicide terrorists cannot be deterred, they must be pre-empted and prevented from carrying out their threats against civilians before they occur. This change in tactics requires significant changes in the laws of war – laws that have long been premised on the deterrent model.”
Yes by law Awlaki was still an American citizen at the time of his death. Despite his many calls for the destruction of this country and the killing of its citizens he never went to an Embassy or Consulate to officially renounce his citizenship and thus was still a citizen. The fact that Awlaki was a leader and propagandist for Al Qaeda on the order of what Josef Goebbels was to the Nazis is lost in the debate. The uncomfortable truth is that an “American” citizen Awlaki had for all recognizable purposes renounced his citizenship, and under most historical and legal precedents in the United Statesand Europe Awlaki forfeited his rights as such.
This country has revoked the citizenship of citizens for taking up arms against this country to include all officers who left the U.S. military and former government officials that took up prominent positions in the Confederate armed services and government. They lost their citizenship rights and all had to reaffirm their allegiance to the Union to receive pardons. Some did not and some such as the commandant of the Andersonville prisoner of war camp were executed for their crimes against other U.S. citizens.
The fact that he hid among his family’s tribal homeland inYemenis also held out as a reason that Awliki’s killing was illegal. However Awlaki did not recognize the borders that some say should offer him protection and in my view it is unreasonable for theUnited Statesto be bound by conditions that our adversaries do not acknowledge.
The fact is that Al Qaeda and other terror groups have redefined warfare and that many of our long held notions about the nature of war are obsolete. Al Qaeda and other militant groups understand the concept of revolutionary warfare in ways that are distinctly uncomfortable for us in the West. We talk about counterinsurgency in Afghanistanand Iraq without realizing that the actual insurgency is worldwide and not bound by our constraints. One of the key components of revolutionary warfare is propaganda which is exactly what Awlaki and Khan were doing. They betrayed their country, inspired who knows how many radicals to kill Americans around the world including the infamous Major Nidal Hasan who Awlaki described as “a hero. He is a man of conscience who could not bear living the contradiction of being a Muslim and serving in an army that is fighting against his own people…My support to the operation was because the operation brother Nidal carried out was a courageous one.”
Roger Trinquier a French officer who served in both Indo-China and Algeria recognized this method of operation in his book Modern Warfare: http://www.cgsc.edu/carl/resources/csi/trinquier/trinquier.asp:
“Warfare is now an interlocking system of actions political, economic, psychological; military that aims at the overthrow of the established authority in a country and its replacement by another regime. To achieve this end, the aggressor tries to exploit the internal tensions of the country attacked ideological, social, religious, economic, any conflict liable to have a profound influence on the population to be conquered.”
Unfortunately many in political and media elite as well as some civil libertarians like the ACLU are still acting if it was 1944 and there are clear lines that divide nations as well as military personal from civilians. But for the terrorist this is not the case, Trinquier states the matter very well:
“But the case of the terrorist is quite otherwise. Not only does he carry on warfare without uniform, but he attacks, far from a field of battle, only unarmed civilians who are incapable of defending themselves and who are normally protected under the rules of warfare. Surrounded by a vast organization, which prepares his task and assists him in its execution, which assures his withdrawal and his protection, he runs practically no risks-neither that of retaliation by his victims nor that of having to appear before a court of justice. When it has been decided to kill someone sometime somewhere, with the sole purpose of terrorizing the populace and strewing a certain number of bodies along the streets of a city or on country roads, it is quite easy under existing laws to escape the police.”
Likewise the critics seem to assume that the people plotting and waging war against the United Statesand the West are poor conscripts that do not have a choice in what they are doing but they are not. Most of the leaders including Awlaki, Khan and Osama Bin Laden were the educated children of privilege as is Adam Yahiye Gadahn an American convert to Islam who like Awlaki and Khan has devoted himself to jihad against his native land. Gadahn who has been indicted on the charge of treason makes no bones about his hatred for the United Statesin a 2004 video saying “Fighting and defeating America is our first priority….” In 2009 he praised Nidal Hassan as “a pioneer, a trailblazer and a role-model who has opened a door, lit a path and shown the way forward for every Muslim who finds himself among the unbelievers.”
Yes this is an ugly conflict and it is far different than any war we have every faced. It will mean having to come to terms with methods and tactics that are effective in carrying the war to the enemy, even enemies that we have allowed to retain their citizenship even as they wage war against us. Critics that think this war will be won or lost on the battlefields of Iraqor Afghanistanand those who condemn the killing of Awalki and Khan misunderstand the shape of warfare in the 21st century.
Trinquier and others understood this and we have to adapt if we are to defeat this world wide insurgency. “On so vast a field of action, traditional armed forces no longer enjoy their accustomed decisive role. Victory no longer depends on one battle over a given terrain. Military operations, as combat actions carried out against opposing armed forces, are of only limited importance and are never the total conflict.”
Awlaki and Khan understood what they were doing and were prepared to die to achieve their goals which they did. I suppose that we could have risked the lives of more American troops on the ground to track them down and attempt to capture or kill them deep inside hostile territory as we did with Bin Laden. However, such operations are so risky that they cannot be allowed to become commonplace.
Likewise even as we step up the use of drones and special operations forces and scale back in the manpower intensive theaters of Iraq and Afghanistan we must embrace the role of the media propagandizing the truth. We must define the message and not allow future Awlaki’s and Khan’s to set the narrative of the war. We must use all available media and communications technology to our advantage and not surrender that realm of operations to whomever Al Qaeda appoints to replace Alwaki and Kahn in their propaganda minister role.
It is clear that Geneva and Hague conventions, the U.N. Charter and aspects of the U.S. Code including citizenship provisions need to be revised in light of the changing nature of war. If they are not we will always be constrained by those rules even as terrorists use those protections as part of their overall strategy. To counter such actions we cannot be bound by common law written at the time of Henry IV or laws that never envisioned the kind of war being waged by our enemies. Dershowitz wrote:
“Laws must change with the times. They must adapt to new challenges. That has been the genius of the common law. Ironically, it is generally the left that seeks change in the laws, while the right is satisfied with Henry IV. Today it is many on the left who resist any changes in the law of war or human rights. They deny the reality that the war against terrorism is any way different from conventional wars of the past, or that the old laws must be adapted to the new threats. The result is often an unreasonable debate of extremes: the hard left insists that the old laws should not be tampered with in the least; the hard right insists that the old laws are entirely inapplicable to the new threats, and that democratic governments should be entirely free to do whatever it takes to combat terrorism, without regard to anachronistic laws. Both extremes are dangerous. What is needed is a new set of laws, based on the principles of the old laws of war and human rights – the protection of civilians – but adapted to the new threats against civilian victims of terrorism.” Article in “The Independent” 3 May 2006
From a more military standpoint Trinquier noted:
“In seeking a solution, it is essential to realize that in modern warfare we are not up against just a few armed bands spread across a given territory, but rather against an armed clandestine organization whose essential role is to impose its will upon the population. Victory will be obtained only through the complete destruction of that organization.
That complete destruction of such an organization begins with its leaders including its propagandists, even those that are American citizens. Some will disagree with me on this but this war has been going on over 10 years and will not end when we withdraw from Iraq and Afghanistan. The killing of Osama Bin Laden and the intelligence garnered in the raid on his Pakistani compound was a watershed moment and has shifted momentum to the United States and its allies. Al Qaeda’s senior leaders are being killed in ever increasing numbers with substantially fewer civilian casualties. But we can lose it all if we fail recognize that the very nature of war has changed and that if we remain tied to law and policy written when the world in no way resembled what it is today.
P.S. For those wondering what a Priest knows about this I hold a Masters degree in Military History and a graduate of the U.S. Marine Corps Command and Staff College. I have also studied revolutionary war and insurgency extensively since 2001. I served with our advisers to the Iraqi Army, Police and Border and Port of Entry Police in 2007-2008.