Due Process

Nassar al-Alwaki, father of alleged terrorist and Al-Qaeda operative Anwar al-Alwaki, is suing the U.S. government for putting his American-born son on the military’s so-called “capture or kill” list. (All reports seem to indicate that the “capture or” part is rarely heeded. For all intents and purposes, these lists serve as execution orders.) The lawsuit is being backed by the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights, and it represents the first direct challenge to the government’s “right” to employ lethal force against its own citizens– without charge, trial, or any judicial process– as a counter-terrorism strategy. Obviously complicating this case is the delicate issue of al-Alwaki’s American citizenship. Although he is believed to be in hiding in Yemen, Anwar al-Alwaki and his father are still both U.S. citizens. And although the son (an Islamic lecturer and former imam) appears to have been a significant religious and ideological influence on several “known terrorists”– including 3 of the 9/11 hijackers, as well as Nidal Malik Hasan (the “Fort Hood shooter”) and Umar Farouk Abdulmutallab (the “Christmas Day bomber”)– he has not himself engaged in any violence against the United States. Nevertheless, President Obama approved Anwar al-Alwaki’s addition to the CIA and DOD’s “capture or kill” list earlier this year, designating him as an imminent danger to national security. He is the first and only U.S. citizen to ever be placed on such a list.

The fact that the United States regularly and admittedly engages in “targeted killings” ought to be a matter of serious concern to its citizens, as should any other practice of extrajudicial punishment. Assasinations are proscribed under domestic law, per Executive Order 12333, though that proscription has been pretty liberally interpreted by the last three Presidents. Whether or not “targeted killings” are synonymous with “assasinations” has also been the subject of some creative hermeneutic exercises, but not until this case (al-Alwaki’s case) have the stakes of that distinction hit so close to home. The lawsuit that the ACLU and the CCR have filed on al-Alwaki’s behalf challenges the constutionality of our governement’s “capture or kill” lists– the criteria for determining how one is placed on them has never been disclosed– attempting to limit what they argue is an overreach of Executive power.

Of course, what lies at the foundation of these lists, and authorizes the power that authorizes them, is the Ausnahmezustand (the “state of exception”). It is the exceptional danger of terrorism, and the emergency state in which it places our State, that justifies extrajudicial judgment and punishment, or so it is argued. I cannot help but reminded in this case of Agamben’s description of the state of exception, “in which a human action with no relation to law stands before a norm with no relation to life.”