U.S. District Judge John Bates recently dismissed a lawsuit to block the controversial assassination of Anwar al-Awlaki, a U.S. born clerical and operational leader of al-Qaeda in the Arabian Peninsula (AQAP). Bates, along with Justice Department lawyers, delivered many rational objections to al-Awlaki’s father, Nasser, who had filed the suit in his absence. Leading the case in court and in public, the ACLU issued its own premonitions of constitutional violations.
And everyone missed the real meaning behind al-Awlaki’s potential termination: killing him makes for bad counterinsurgency in Yemen.
Both sides illustrated their shortcomings by zeroing on the notions of threat and constitutionality. That al-Awlaki poses a danger to the U.S. homeland and Europe is easy to argue. Believed to command AQAP's "Foreign Operations Unit," or at least serve in it, he’s expressed the motive to attack and followed through. Although the threat itself is minimal, he will try again and try to improve. al-Awlaki’s unique background also makes him harder to replace than a commander unfamiliar with the West.
He should be shot down - if this were typical warfare.
But Yemen is a raging fourth-generation war, a mashup of political, economic, and social unrest spilling into the international media. Bates rightfully interpreted al-Awlaki’s military ramifications as beyond the court’s abilities, then turned them over to those who don’t have a complete grasp either. Dismissing al-Awlaki’s suit under the political question doctrine, Bates concluded that he must “step aside in issues that are best resolved by the elected, political branches of government.”
Except the White House is allegedly restraining an eager Pentagon from expanding operations. Nor is resolution the word to describe U.S. policy.
Given COIN’s complexity and stigmatization (and legal irrelevance), the ACLU has sensibly campaigned on constitutional rights and the power of the executive branch, which many Americans believe has overstepped its limits. Jameel Jaffer, deputy legal director of the ACLU, said that assassination of U.S. citizens could become “a question the president alone will decide.”
Douglas Letter, the administration’s terrorism litigation counsel, responded, “It is ridiculous to say that our argument leads to the conclusion that the president can assassinate who he wants.”
Yet this scenario already occurs under the CIA’s current “kill list," when President Barack Obama's National Security Council approved al-Awlaki's controversial order.
The ACLU’s focus on rights and executive power is problematic for several reasons. For starters al-Awlaki has professed indifference to his U.S. citizenship. Bates argued, “The fact that [Awlaki] has not brought suit during the past 10 months that his name has allegedly appeared on ‘kill lists’ strongly suggests that his rights are either not truly at stake or not truly important to him.”
al-Awlaki also manifests a constant threat due to the nature of preemptive warfare. Having announced his intention to attack Western targets, al-Awlaki encourages others to do the same while teaching them how in Inspire magazine. And his father’s suit failed to meet the requirement that non-lethal means are available, as al-Awlaki will more likely come dead than alive. Dozens of tribesmen guard his location and any insertion to grab him will be bloody - and potentially suicidal.
A new argument should be thrown into the court, if only to shine a temporary spotlight on what the U.S. military and CIA are actually doing in Yemen. Permanent denial of AQAP's safe havens requires the stabilization of Yemen’s political and economic system, yet al-Awlaki’s death provides only temporary relief from external attacks.
While his elimination carries no benefit for Yemenis, a destructive force is more than possible.
So many things can go wrong beyond physical collateral damage; political and social blow-back is assured regardless of whether civilians are killed. As Gregory Johnsen argued in The New York Times and some Yemenis will attest, they didn't hear of al-Awlaki until after the Fort Hood shooting and botched Christmas bombing in 2009. Others believe that Washington is hyping al-Awlaki into more than he was for PR devices, leading AQAP to promote him for their own propaganda.
Killing al-Awlaki risks alerting doubtful segments of the population. Not that every Yemeni will care, but some will perceive America’s military activity as a fundamental violation of their culture and religion. They’ll join the rest who already do.
Importance aside, al-Awlaki is nevertheless rooted in Yemen’s social fabric, not some foreign agent infecting a local environment in Iraq, Afghanistan, or Somalia. Prime Minister Ali Mohammed Mujawar, who has openly questioned AQAP’s existence, is a relative of al-Awlaki. His father served as Agricultural Minister and teaches at Sana’a University. And the Saleh government, who exploits al-Awlaki to secure U.S. military funds, refuses to hand over a precious bargaining chip, growing increasingly paranoid of being viewed as Washington’s puppet (even though it’s too late).
Sana’a has negotiated with al-Awlaki’s tribe by promising not to turn him over to U.S. authorities. But Yemeni forces arrested al-Awlaki once in 2006, which he attributed to U.S. pressure, and he's unwilling to repeat the experience.
Naturally al-Awlaki’s tribe, the Awalik, refuses to negotiate as a result. Earlier this year, when al-Awlaki’s inclusion on the CIA's "kill list" became public, tribal chiefs gathered to issue a declaration of war in the event of his death. Recently Sheikh Abu Bakr al-Awlaki, the tribe’s leader, detailed the complexity surrounding al-Awlaki and Yemen’s social landscape in general. The Awalki tribe opposes terrorism and AQAP’s activities, he claims, before explaining his communications to settle local disputes with the group.
Shiekh Abu Bakr says the government must arrest al-Awkaki if it wants him - and confront the potential danger involved.
"Of course there are some al-Qaeda militants protected by tribes," said Sheikh Ahmed Shuraif, leader of the Bani Dhabyan tribe. "But even if Awlaki is with the Awalik tribe, it is a big tribe. He has more than 100 people protecting him."
What’s left is a jumble of long-term risks chanced for short-term gain. In his Foreign Policy rebuttal to Johnsen, who downplayed both al-Awlaki’s influence and his potential loss, Thomas Hegghammer still concluded a limitation to al-Awlaki’s death. Says Hegghammer, “His removal will not destroy AQAP, but it will reduce the group's ability to strike in the West.”
When it comes to al-Awlaki, too many counterinsurgency principles are being sacrificed in the name of counter-terrorism.
Counter-terrorism represents one slice of COIN, not counterinsurgency itself, and fails to accomplish its objectives in isolation. While al-Awlaki is a unique specimen, quick-fixes don't last long in insurgencies. One Western official even admits, "There's a demand for decisive action, not 20-year strategies. What would happen if something did get to America? Action would be taken."
Present U.S. strategy isn’t militarily sound in Yemen but politically expedient at home, and contradicts a resolution by spawning new militants without correcting Yemen’s root instability. Denying AQAP its haven through non-military measures creates the only sustainable policy to combat threats against the U.S. and Europe. Regardless of the reservations expressed by the White House, assassinating al-Awlaki would choose militarism over Yemen’s future.
As the Saleh government, many Yemenis, and al-Awlaki’s tribe oppose his vaporization, the net gain will be minimal - and potentially negative.
“It is doubtful whether U.S. agencies can do very much against the core AQAP organization without leaving a larger footprint in Yemen,” writes Hegghammer, “which in turn may prove counterproductive. So long as the core AQAP organization is not deeply involved in attacks on the U.S. homeland, then the risks of going after them with drones and U.S. Special Forces may well outweigh the benefits.”
Killing him as a lead-in to wider operations against AQAP is a recipe for disaster.
The ideal way of neutralizing al-Awlaki is to bring him in alive, as Hegghammer concludes. Collateral damage amongst civilians, the tribe, and the government, while potentially high, is still trumped by the wreckage of a Hellfire or cruise missile. But this challenge also exceeds airborne assassination in terms of skill, given al-Awlaki’s mindset and protection, and comes with the downside of him remaining in Yemeni custody, to be tried under Yemeni law. Although Washington’s ideal end serves its own interests, treading lightly with al-Awlaki favors long-term interests in the country for all involved.
Having courted death, al-Awlaki vocally accepts his possible martyrdom as a future catalyst for AQAP’s recruitment. He knows how big of a mistake killing him would be, and has offered poisonous bait.
Why take it?