Why Did We Kill Anwar Al-Awlaki and Not Jane Fonda?

If Barack Obama ordered Anwar al-Awlaki killed for spreading enemy propaganda, I demand he do the same for Jane Fonda.

Obama placed al-Awlaki on a kill list, then checked him off that list, because he spread fundamentalist Islamic propaganda and apparently encouraged several terrorists or would-be jihadists, including Ft. Hood shooter Nidal Hassan and “Underwear Bomber” Umar Farouk Abdulmutallab (who claims al-Awlaki is still alive). Jane Fonda made multiple radio broadcasts reading Communist agitprop written by her North Vietnamese hosts, whom she energized both in person and through photographs. Al-Awlaki spread his poison from Yemen, a nation with which the United States is not (formally) at war; Jane Fonda traveled to North Vietnam at a time when no doubt existed about our state of hostilities or the location of the battlefield. Al-Awlaki proved effective because he knew American popular culture; Jane Fonda was popular culture.

If Obama killed Anwar al-Awlaki, shouldn’t he be consistent and order the shooting of Jane Fonda, as well?

The status of the al-Awlaki drone strike remains a hot debate topic that defies the stereotypical Left-Right dichotomy. Ron Paul has said an “impeachment process would be possible” over Obama’s “assassination” of al-Awlaki, a view shared by many on the Left. Others celebrate the removal of an al-Qaeda “leader.” And current GOP frontrunner-of-the-moment Herman Cain has been on both sides of the issue.

The feds could have spared us this entire debate nine years ago. Al-Awlaki’s ties to terrorists were sufficient to attract federal scrutiny prior to 9/11, and in October 2002 a federal judge issued a warrant for his arrest. Assistant U.S. Attorney David Gaouette rescinded the arrest warrant on October 9, 2002; authorities arrested al-Awlaki on the morning of October 10 and had to let him go. After a brief stateside visit, al-Awlaki fled to Yemen, where he remained until his death.

Eric Holder named Gaouette acting U.S. Attorney for the District of Colorado in 2009. (He was replaced a year later by John Walsh.)

Since the government failed — and, in typical fashion, failure was rewarded — the American people must debate Obama’s actions. While no one mourns Anwar al-Awlaki’s death, reasonable people may question whether the strike was the most appropriate response and how similar situations should be handled in the future.

Al-Awlaki, Al-Qaeda, and Authorization of Force

Many who support the drone strike against the imam rely on simple bluster: Hey, he was an al-Qayda supportin’ ay-rab and now he’s dead and DON’T YOU KNOW THIS IS A WAR? Thankfully, some have offered more substantive analyses. They point out the president would stake his authority on the Authorization for Use of Military Force Against Terrorists, which Congress passed on September 18, 2001. It states, “That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

An anonymous White House official told The Washington Post the administration first named al-Qaeda in the Arabian Peninsula (AQAP) an affiliate of al-Qaeda, then named al-Awlaki an AQAP leader and imminent threat. It expounded its legal theory in a memo that was accepted without objection. Case closed.

There is real substance here. No one can question his English language propaganda, nor that he incited others to acts of terrorism. Glenn Greenwald of Salon makes an argument that al-Awlaki’s sermons are protected speech under the 1969 Supreme Court decision Brandenburg v. Ohio. However, it seems likely the imam’s personal interaction with numerous terrorists shortly before they committed or attempted to commit acts of terrorism falls under that case’s prohibition to incite “imminent lawless action.” That defense may be rendered moot since the Department of Homeland Security and FBI are now claiming al-Awlaki taught the underwear bomber how to detonate the explosives he intended to ignite in Detroit. If true, that would establish al-Awlaki offering more than verbal support for the enemy. Until it is proven beyond a reasonable doubt, we will take it under advisement.

However, this argument has several notable shortcomings. There is much truth in Governor Gary Johnson‘s statement that “he was a U.S. citizen, and never before have we targeted a U.S. citizen for death.” The Post noted rather ominously, “The administration officials refused to disclose the exact legal analysis used to authorize targeting Aulaqi, or how they considered any Fifth Amendment right to due process.” In a constitutional republic, this is no small oversight. According to Der Spiegel, “Ironically enough, despite all his efforts in support of al-Qaida, al-Awlaki had never become a formal member of the terrorist organization or its branch in Yemen.”  While he had some kind of relationship with three of the 9/11 hijackers, the details are fuzzy, and the FBI confesses some of them come from an unreliable source. (Thankfully unreliable sources have never caused us to launch a baseless war in the past.)

There are far greater reasons for pause than quibbles over a dead terrorist’s resume.

Citizenship, Secrecy, and (Plausible) Slippery Slopes

The process that led to the drone strikes deserves a hard second look for the precedent is sets and the ways it may one day be exploited. Anwar al-Awlaki was placed on a kill list by Barack Obama and the National Security Council that he appointed. When the imam’s family attempted to have him removed from the list, the Obama administration said revealing its rationale would expose state secrets, an argument the court upheld. So, the president put a U.S. citizen on a kill list without the review of a single other elected official, supported by a secret memo no civilian has been permitted to review, in a process no one can legally contest, then shot him dead. There may be an historical precedent, but it eludes me.

The closest mainstream conservatives who support the killing, including some I greatly respect, can come is the 1942 case of naturalized German-American saboteur Herbert Hans Haupt, who was executed…after a military trial that lasted 14 days and involved more than 100 witnesses.

Since al-Awlaki’s only proven crime to date was rhetorical, the cases of other American-born enemy propagandists would be more applicable. (Pat Buchanan has an outstanding column examining similar historical instances and raising practical questions about how Americans may wish to proceed.) William Joyce (Lord Haw-Haw) was executed by the British after several UK trials, although Great Britain had only a tangential claim on him. Mildred Gillars (Axis Sally) served jail time after an American trial. Her Italian radio counterpart, Rita Zucca, could not be tried in the United States, and post-Mussolini Italy set her free after a piddling nine months in prison. The jury trial of Iva Toguri D’Aquino (Tokyo Rose) lasted 13 weeks and cost $750,000 in 1949 (approximately $7.14 million today); she served six years for trumped-up charges and was Gerald Ford’s least controversial pardon. After psychiatrists skirted the law, poet Ezra Pound was spared a treason trial altogether, committed to a relatively comfortable insane asylum for several years, and then released even though his doctors maintained he was still insane.

Trials have not simply been held for propagandists who enjoyed U.S. citizenship. We tried nuclear spies Julius and Ethel Rosenberg, who did more damage to the United States than Anwar al-Awlaki could have done in a thousand lifetimes. The George W. Bush administration gave John Walker Lindh a trial after the “American Taliban” was captured on the battlefield, then captured a second time, waging jihad against America. Lindh got 20 years in prison. American soldiers captured Saddam Hussein, who also received a trial before hanging. Americans attempted to capture Osama bin Laden a minimum of 10 times before 9/11 (although after several other terrorist acts) and countless times afterwards.

If the precedent for killing an American-born enemy propagandist is thin, its possible consequences could prove disastrous.

What if the Department of Homeland Security begins to believe its own press? Its 2009 report on “Rightwing [sic.] Extremism” declared that “lone wolves” who “are dedicated to a single issue, such as opposition to abortion or immigration” represent “the most dangerous domestic terrorism threat in the United States.” Planned Parenthood and other abortion advocates have lobbied the DHS and FBI to spy on such pro-life “terrorists” as  the Christian Broadcasting Network (CBN), National Right to Life, and Priests for Life. The president already equates disapproval of homosexuality and transgenderism to “bullying” in a crass move designed to chill free speech. The Left perpetually blames every tragedy, from the Oklahoma City bombing to Gabrielle Giffords’ shooting, on unapproved (read: traditional conservative) speech.

What if a future president decides an American Christian minister or priest has some form of contact with a parishioner who goes on to commit a serious crime, and the president and the left-wingers he appoints decree he has encouraged domestic terrorism? What precisely is to stop the president from seeing that clergyman’s name added more immediately to the Lamb’s Book of Life? The old answer was that he was an American citizen — but that raises few concerns among many in al-Awlaki’s  case.

Angry mobs “occupying” Wall Street-by-way-of-Raleigh remind us the next front may be at home. The increasingly revolutionary Left already accuses Tea Party members of “terrorism” and indulges dark and violent fantasies about them. They would volunteer to carry the hit out.

Would Beltway “conservatives” come to his aid? Hardly. After all, self-appointed pseudoconservatives equate opposition to open homosexuality in the military with “discrimination” and criticism of the homosexual lifestyle with “prejudice.”

Patriotic Americans may come to rue it if the governing elite begin to apply the rule of comfort to domestic standoffs. Rowan Scarborough of the Washington Times admitted, in essence, the Obama administration killed al-Awlaki because capturing and trying him would be too hard. Legal experts told Scarborough the administration had to weigh the likelihood of winning in court and the potential loss of U.S. life in staging a capture. Since the drone strikes proved less costly, and death cannot be overturned on appeal, the decision made itself. As Eugene Fidell of Yale Law School said, “It’s hard to insert human beings in that part of the world. I think it’s as simple as that.”

But what if a future president determines — in a secret affidavit, of course — that an American pastor who lives on a well-armed “compound” is guilty of inciting hatred based on evidence that would be inadmissible in court and that raiding the facility would likely cost at least one soldier his life? Drone attacks in the heartland?

This is not entirely hypothetical. In 1985, neighbors on the west side of Philadelphia complained John Africa’s MOVE organization had a back-to-nature philosophy that caused them to live in unsanitary conditions. Further, the organization blasted political speeches through the neighborhood at all hours of the night. Philadelphia police attempted to arrest some of its members, whom they say fired upon the officers. The police bombed MOVE’s headquarters after they determined MOVE had a better firing position. Police allowed the fire to consume 61 homes, killing 11 people including five children.

If I could believe with greater certainty that our hypothetical minister would be no more likely a candidate for Predator strikes than Jane Fonda, I might greet the killing of Anwar al-Awlaki with less qualified relief.