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Can the US assassinate an American citizen living in Yemen?

The targeted killing of Islamic cleric Anwar al-Awlaki, without due process, would violate the gold standard of international law set by the Nuremberg trials – and defy the US Constitution.

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Last month, civil liberties groups and the family of Islamic cleric Anwar al-Awlaki filed suit to stop the US government from killing Mr. Awlaki – an American citizen living abroad in Yemen. The government, which is trying to have the case dismissed, labels Mr. Awlaki a threat for alleged involvement in terror plots and inspiring anti-American jihadists. Awlaki is believed to be a target for extrajudicial killing.

The suit raises a fundamental question: When, if ever, is it lawful for government to assassinate? While a private individual has no right to kill except in self-defense, the right of those acting under color of law, such as police officers, soldiers, or the CIA, is considerably more complex. Even a soldier in a declared war does not have an unfettered right to kill the enemy.

The Nuremberg standard

At the close of World War II, when the question arose of what to do with Nazi leaders. British Prime Minister Winston Churchill proposed shooting them. Soviet leader Joseph Stalin agreed, but the United States advocated a trial. It argued, and eventually persuaded, both British and Soviet governments that the proper path was not blind retaliation, but the rule of law. A lawful procedure required a finding of individual guilt before punishment could be implemented. The US argued that leaders of the German and Japanese government and military should be tried in a court of law for having waged an aggressive war and for crimes against humanity. Only if they were found guilty after a trial, at which they would have the right to defend themselves and present evidence, could they be punished.

The US position prevailed, and the Nuremberg and Tokyo trials set an historic postwar gold standard for what came to be called the movement for the rule of law. The core doctrine is that government itself must obey the law on the same basis as individuals.

The doctrine has been embraced by every US administration since 1945, but America has had difficulty adhering to it.

Twenty-five years after the Nuremberg trials, the CIA sought to assassinate Cuban leader Fidel Castro. This breach was mended in 1976 when President Ford made an Executive Order forbidding any government employee from engaging in assassination. That policy lasted until 2002 when President Bush told the CIA to assassinate terrorist leaders whose names were on a ‘high value target list’. How one got either on or off the list was never made clear.

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