How to Prosecute an American Jihadist

By / 10.14.2010

How should the United States handle the case of an American citizen encouraging jihadist-style violence against his countrymen?  It’s easy for the US to launch Predator drone strikes against foreign al Qaeda members in holed up in Pakistan, but what legal precautions are necessary when other Americans are in the Predator’s crosshairs?  This is the twisted legal issue at the heart Anwar al-Aulaqi, the American cleric based in Yemen who has served as the ideological inspiration behind the Ft. Hood and Christmas Day attacks (amongst others).

Back in January, the government added Anwar al-Aulaqi  to a “kill list” that authorized the U.S. Joint Special Operations Command to target him with lethal action. In August, the ACLU and the Center for Constitutional Rights filed a suit seeking to stop the US government from lethally targeting Anwar al-Aulaqi. This case was filed on behalf of al-Aulaqui’s father, on the grounds that al-Aulaqui is an American citizen.  And furthermore, the complaint argues, the executive branch decision to place him on the “kill list” without judicial oversight allegedly violates his Fourth and Fifth Amendment rights.

The government has filed a brief seeking to dismiss the case on several grounds: That al-Aulaqi’s father is not the proper party to file the suit (only al-Aulaqi can); that the judicial system has no power to second-guess the executive branch on this call; and that arguing this might expose top secret information.

The government’s arguments are solid.  And to be clear: there is no doubt that al-Aulaqi poses a threat to national security by promoting violence against Americans.

However, there are important practical and legal issues here: Many would argue that the federal government cannot simply kill an American citizen without regard to the citizen’s Constitutional rights, which have no greater value to a citizen than when they protect him from his government’s ability to take his life.   Further, as the complaint notes, the decision to place al-Aulaqi on the kill list was made with no judicial process at all.

What to do? Should there be a special process to deal with a dangerous jihadist inspirer like al-Aulaqi?

Yes.  The legal framework for the process could be partially adopted from national security litigation procedures that already exist, such as the Guantanamo Bay habeas corpus cases. The process should be as expedited as quickly possible, and should require the government to show a judge that a person poses an imminent threat to the national security of the United States.  It should also have to prove that it has exhausted all other means of resolving the situation and that lethal action is the only viable option left.  The hearing can be closed off to the public so that classified information will be protected.

Providing the accused with some form of representation is difficult because those like al-Aulaqi will be inaccessible, hiding in a foreign country. But an attorney representing the target’s interests should be present to make sure that the process is balanced.  This could be done with military JAG officers or through a stable of civilian attorneys with top secret clearances.

Photo credit: Clyde Robinson