Can the US assassinate an American citizen living in Yemen?

No due process for Awlaki

By allegedly authorizing the assassination of Awlaki, an American citizen living in Yemen, the current administration shows that American policy has not yet returned to the Nuremberg standard. The key fact in the administration’s decision seems to be that Awlaki resides in Yemen. If the citizen resided in Chicago, the administration would not be suggesting that he be assassinated. He would be arrested, charged with an offense, tried, and if found guilty, sentenced, and imprisoned. The situation would presumably be the same if he were residing in France, England, or Germany. He could be arrested and tried or extradited. The fact that Yemen is a chaotic nation complicates the matter, but the issue would be the same if he were in Iran or Syria – how to justify assassination.

Extrajudicial killing may meet mafia standards, but it does not meet the due process requirements of the US Constitution’s 5th Amendment or the 6th Amendment’s right to a jury trial and to confront witnesses. Even apart from a citizen’s constitutional rights, it is deeply troubling that the US government claims the right to kill anyone it decides to put on a hit list.

That a government has the right to kill in certain defined circumstances cannot reasonably be denied, but it must be to protect itself or its citizens from imminent danger, and the protective measures must be proportionate to the nature of the danger. In Awlaki’s case, the suit seeks an order to stop the government from killing him unless he poses an immediate threat. An American citizen hiding in the chaotic state of Yemen poses no direct threat to the existence of the US government. Individuals like Awlaki pose a random threat to citizens of numerous countries, and that threat justifies governments taking protective measures.

Need for judicial oversight

But if the measure to be taken is assassination, there must be some judicial oversight. The troubling aspect of extrajudicial killings is that the executive branch acts as prosecutor, judge, and executioner. There are no checks and balances. No one knows what standard of proof it employs. Is it authorizing assassination on the basis of probable cause that a crime has been committed, or on evidence that shows it beyond a reasonable doubt?

While officials claim that an American in Yemen is advocating and perhaps participating in terrorist acts, they disclose no evidence. No independent party judges whether there is sufficient proof to justify killing. No one discloses what standard of proof the executive branch is using. Indeed, the plaintiffs in the Awlaki suit demand that the government make transparent the process used to determine whether a citizen can be executed without trial.

When government asserts an unreviewable power to kill its own citizens, it mocks the rule of law, and claims a power more familiar to tyrants than democracies.

Ronald Sokol is a lawyer in Aix-en-Provence who practices across France. He taught at the University of Virginia Law School and is the author of “Justice after Darwin” and other books and articles.

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