In the flurry of al-Awlaki coverage today, there are two points that I think are particularly worthy of attention.
First, does this show that the U.S. government asserts authority to target based on speech alone? One might get that impression from some of the coverage, but it is worth recalling what the government had to say about al-Awlaki in the ACLU lawsuit last year: he was involved in violent plots as an operational leader, not just as an idealogue. In my paper addressing al-Awlaki, I summarized the government's description of his role as follows:
In a declaration filed by the government in connection with the aforementioned ACLU lawsuit, the Director of National Intelligence asserts that "Anwar Al-Aulaqi has pledged an oath of loyalty to AQAP emir Nasir al-Wahishi, and is playing a key role in setting the strategic direction for AQAP. Al-Aulaqi has also recruited individuals to join AQAP, facilitated training at camps in Yemen in support of acts of terrorism, and helped focus AQAP‘s attention on planning attacks on U.S. interests."23 The declaration adds that al-Awlaki personally instructed Abdulmuttalab "to detonate an explosive device aboard a U.S. airplane," as part of a larger shift toward an operational leadership role with AQAP.24
23 Clapper Declaration, supra note 16, at ¶ 14.
24 See al-Aulaqi v. Obama (D.D.C. Sep. 25, 2010) (Opposition to Plaintiff‘s Motion for Preliminary Injunction and Memorandum in Support of Defendants‘ Motion to Dismiss) (―Government‘s Brief‖), at 1 (asserting that ―since late 2009, Anwar al-Aulaqi has taken on an increasingly operational role in AQAP, including preparing Umar Farouk Abdulmutallab in his attempt to detonate an explosive device . . . on Christmas Day 2009‖), 6 (―Since late 2009, Anwar al-Aulaqi has taken on an increasingly operational role in the group, including preparing Umar Farouk Abdulmutallab, who received instructions from Anwar Al–Aulaqi to detonate an explosive device aboard a U.S. airplane over U.S. airspace and thereafter attempted to do so aboard a Northwest Airlines flight from Amsterdam to Detroit on Christmas Day 2009, for his operation.‖), 24 (referring to al-Awlaki as a ―senior operational leader‖) 29 n. 14 (same), available at //lawfare.s3-us-west-2.amazonaws.com/staging/s3fs-public/uploads/2010/09/usgbrief.pdf.
Second, does the attack show that the U.S. government believes that al-Awlaki had no Fifth Amendment right to due process in this situation, such that deadly force could be used against him anywhere? I don't know what government lawyers may have thought about this, but I'm very doubtful this is the case. Rather, I suspect that their view was that deadly force was only compatible with the 5th Amendment in this setting because al-Awlaki was located, purposefully, in a place where neither the host-state government nor the United States had a plausible opportunity to capture him (combined with his asserted operational role and the resultant premise that he posed an imminent threat to life).