On September 30th The New York Times reported that a US drone killed Anwar al-Awlaki, a radical Muslim Al-Qaeda member in Yemen and a US citizen. In the days since the attack, there has been much discussion of a secret memo that allowed for the killing without a trial “if it were not feasible to take him alive” (I’m quoting from this Times article). al-Awlaki’s guilt seems to hardly be the issue here; a very vocal proponent of jihad against the United States, and linked to dozens of terrorist investigations around the world, including the Fort Hood shooting and Times Square bomber, al-Awlaki has quite the rap sheet. The issue arises over the legality of killing an American citizen without a trial.
Denying a citizen a right to trial not only violates laws against assassination and murder, it violates the constitution, and from Mill’s perspective, it violates a fundamental right to freedom of expression. The justification for the government’s action comes in two parts: 1. That al-Awlaki posed an imminent risk of harm to a large group of people, and 2. That capture was not practical.
So Mill applies doubly in this case. Not only was al-Awlaki targeted because his expression endangered others, according to the government, but he was then denied further freedom of expression upon being discovered. While you might be able to apply Mill’s harm principle to the first point, is it still applicable to the second? What harm could come of holding a trial? The verdict would most likely be execution or life imprisonment, it’s highly unlikely he would get anything less, and the government would be upholding the numerous laws against assassination and murder as well as due process.
While thinking about this case it is hard to ignore a very similar one from a few months ago, the assassination of Osama bin Laden, one that was greeted with glee by many Americans whereas al-Awlaki’s death has many civil liberty organizations up in arms. So what accounts for the different reactions? Here are two possible explanations I can think of: Americans feared the name bin Laden and believed he posed a larger threat (probably correctly) and/or they lacked any ounce of identification with him. The reality is probably a combination of the two. But does this mean that one should be allowed a trial and one not? And by denying trials to both, what does that say about the hoards we grant trials to? What gives us the power to decide who deserves a chance to defend themselves, citizen or not? Would Mill make a different case for bin Laden than he would for al-Awlaki?