Does it skirt the right of legal due process guaranteed under the US Constitution? Or in a time of what has been called the “global war on terror,” is the killing of those urging attacks on their fellow Americans in the name of Islamic jihad a justifiable act of self-defense?
The American-born radical cleric Awlaki – a recruiter for Al Qaeda in the Arabian Peninsula said to have inspired alleged Ft. Hood shooter Maj. Nidal Hasan and other homegrown Islamic terrorists – was killed in a US drone strike Friday. Also killed in the attack was American-born Samir Khan, editor of Al Qaeda’s English-language magazine “Inspire.”
Civil libertarians and some constitutional scholars say what amount to targeted assassination of US citizens cannot be justified – even in wartime. What’s to prevent the government from killing terrorist suspects on US soil, they ask?
“The US Government has seized and exercised exactly the power the Fifth Amendment was designed to bar (‘No person shall be deprived of life without due process of law’), and did so in a way that almost certainly violates core First Amendment protections,” writes Glenn Greenwald, a former constitutional law and civil rights litigator, in his Salon column.
“This is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts,” says Jameel Jaffer of the American Civil Liberties Union (ACLU), one party in a lawsuit seeking to prevent targeted killings.
“The government's authority to use lethal force against its own citizens should be limited to circumstances in which the threat to life is concrete, specific, and imminent,” he said in a statement Friday. “It is a mistake to invest the President – any President – with the unreviewable power to kill any American whom he deems to present a threat to the country.”
US officials point to evidence that Awlaki played a significant operational role in several plots, including the failed attempt by so-called underwear bomber Umar Farouk Abdulmutallab to bring down a Detroit-bound airliner on Christmas Day 2009.
As first reported in the Washington Post, this led to a secret Justice Department memorandum last year justifying efforts to capture or kill Awlaki. Capturing him would have been extremely difficult if not impossible in Yemen, so the US effort became a targeted killing.
“As a general matter, it would be entirely lawful for the United States to target high-level leaders of enemy forces, regardless of their nationality, who are plotting to kill Americans both under the authority provided by Congress in its use of military force in the armed conflict with al-Qaeda, the Taliban, and associated forces as well as established international law that recognizes our right of self-defense,” an administration official said in a statement Friday.
In Awlaki’s case, officials say, he played an “operational role” in plotting attacks against the United States.
"He directed the failed attempt to blow up an airplane on Christmas Day in 2009," President Obama said Friday. "He directed the failed attempt to blow up US cargo planes in 2010. And he repeatedly called on individuals in the United States and around the globe to kill innocent men, women and children to advance a murderous agenda."
So far, the Obama administration has the courts on its side.
When the Obama administration added Awlaki to the kill-or-capture list, the ACLU and the Center for Constitutional Rights sued under US and international law to block the listing.
But US District Judge John Bates refused to intervene in Awlaki's case.
"This court recognizes the somewhat unsettling nature of its conclusion – that there are circumstances in which the executive's unilateral decision to kill a US citizen overseas is 'constitutionally committed to the political branches' and judicially unreviewable," Bates wrote. "But this case squarely presents such a circumstance."
"It's something we had to do," said Rep. King. "The president is showing leadership. The president is showing guts."