Awlaki was an American Citizen & Entitled to Some Kind of Due Process – Updated

Everyone has an opinion on this; I thought this, this, this, and this were the best on the debate. It does appear that Awlaki was a genuinely dangerous nut-job, but Greenwald makes the obvious point that the government should demonstrate that. That is the whole point of due process, and no one really has any idea what the process was that allowed the president to unilaterally execute a citizen. As nasty as the guy may have been, he was an American (born in New Mexico in 1971). So this is a yet another civil liberties threshold crossed in the global war on terror (GWoT), and a fairly big one to my mind. (I am an American living abroad too. Have my rights just contracted? Can anyone really say?)

Like everyone, I have mixed feelings, because it does look like Awlaki was a huge threat, moving among openly-declared enemies of the US, and committed to attacking the West violently. I imagine this is why the outcry is so minimal. But he was an American citizen, and I can’t think of anything like this ever. Our government is now performing targeted killings of our own citizens? Wow. Where is the legal authority for that? Doesn’t that violate all sorts of basic protections enshrined in the Amendments to the Constitution? I am not a lawyer, but what possible ‘due process’ is there for this the pre-empts the Constitution? Obama and the National Security Council simply decreed him a threat? At the very least, please tell us how these determinations get made, and what processual checks there are so that this doesn’t devolve into a open-ended kill authority.

But even if we see the case file, I find this genuinely scary. The precedent this lays down, especially as it seems to be going uncontested in the US, is very unnerving. I was willing to swallow that the ‘targeted killing’ of OBL was within the pale, but citizenship is a crucial red-line in a world of states. At this point, who exactly can the president not order terminated? And do the Obama people really want to hand over such power to a possible tea-party president in the future?! Can one imagine Sarah Palin with clandestine, ‘targeted assassination’ authority? Isn’t that terrifying?

I find it a heartbreaking paradox of the GWoT that Awlaki’s father tried to sue the US government to stop it from killing his son. More generally, this whole mess shows how protracted warfare corrodes democracy (a lesson going all the way back to Thucydides) and why it is very important to stop the war on terror. American liberties are eroding under the strain of the 10 years of angry, frustrating conflict, and the reliance on drones, with few rules or agreed norms about their use, show the growing disregard for due process that semi-permanent conflict entrains.

This can be included with all the other GWoT misdeeds like torture, warrantless wiretaps, and indefinite detention. The domestic liberty costs of the GWoT now clearly outweigh the benefits. Killing a US citizen in what is basically an assassination is yet another red-line crossed that shows how we are forgetting ourselves and the whole liberal point of the GWoT to begin with. Why would anyone listen to the ‘freedom agenda’ or take Obama’s Nobel Prize seriously at this point? I wonder if the Nobel Committee would like to retract it now. Why even vote for Obama when he feels he has the authority to do even this? Honestly, I am not even sure McCain would have done this. Targeted  assassination, especially of the citizenry itself, is an astonishingly capacious read of executive power, and clearly not a power ever explicitly delegated by Congress. No wonder Cheney wants an apology. Obama is doing stuff not even W would have done.

The US has banned assassination since the 1970s because of misdeeds during the Vietnam war. So not only did the administration violate constitutional rights of a citizen, it also violated another statue. I saw J Toobin on CNN this week say basically that no administration has followed the assassination ban anyway, so that is not a real violation (!). Then Toobin argued that Obama’s likely defense is authority under the post-9/11 ‘Authorization for the Use of Military Force’ (AUMF), but that, with this killing now, no one really knows where that power ends. Toobin, who strikes me as a reasonably serious guy, looked genuinely troubled as he said this. What can a legal correspondent comment if the ‘law’ is this malleable? I had the sense Toobin wanted to protest, but American public opinion is so desensitized to rule-violation in the name of the GWoT, I think Toobin ducked so as not to look like he defended a terrorist. Also, read the AUMF closely; it targets the planners behind 9/11. But Awlaki wasn’t a part of the plot, even though he was sympathetic. If it was just because he was a rabble-rousing anti-American cleric, then a good chunk of clerisy of the Middle East would probably qualify…

So again my question is, what use of force does the Authorization not permit? Can the president order a hit like this on US soil? Bush already detained Jose Padilla unfairly and with no recourse for years. That the Obama administration doesn’t really know how to answer that became very clear in a CNN interview I saw with SecDef Leon Panetta. Asked if he was on firm legal ground, he only repeated, in worst manner of Bush evasiveness, that Awlaki was a threat and we had to take him out. Presumptive threat overthrows process: we’re all Cheneyites now.

Finally, I found it a particularly glaring contrast that Awlaki was assassinated in the same week that the American media got in a terrible huff about due process in Italy (Amanda Knox) and Iran (those two hikers). (Btw, America’s record of giving due process to foreigners arrested in the US is atrocious, so don’t be so indignant.) Knox and the hikers’ experiences were regularly described as brutal ‘ordeals,’ and their homecomings covered in great, chest-thumping detail. Yet here we hellfire our own citizens (another American was killed with Awlaki) without trial or public presentation of a detailed case… and no one says anything. We just believe what the government tells us about him. The government has flim-flammed so much in the GWoT though, that we really should demand more. Congress should lay down a framework as soon as possible for targeted killings in general, and for Americans especially; otherwise this could slide toward widespread, casual use, just as the torture regime spread from Guantanamo initially, into the entire US GWoT-detention system, because no one really knew what the ‘new rules’ were.

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Read this on the limits of drone warfare.