No Comment — October 1, 2010, 11:15 am

The President’s Power to Order the Extra-Judicial Execution of an American Citizen

When stories originally surfaced to the effect that President Obama had authorized the killing of an American citizen, Anwar al-Awlaki, my first reaction was to say that the criticism of some civil libertarians was overblown. A warrior fighting on the battlefield against U.S. forces in a conflict has no privilege against being killed because he is a U.S. citizen—that’s a well-settled norm of the laws of war, upheld by the Supreme Court in Ex parte Quirin (1942). Surely the Obama Administration would justify its action under these principles: there must be evidence linking al-Awlaki to an imminent, military threat involving al Qaeda and its associated forces, and evidence putting him in a command and control position. I waited to hear confirmation of that, and perhaps even to get a taste of the evidence.

But studying the Obama Administration’s statements over the last two months and reviewing the Justice Department’s response to a lawsuit filed by civil-liberties organizations acting on behalf of al-Awlaki’s father, I come away with a different impression: we’re looking at another power grab for the imperial president.

This whole affair did not have to figure on the public policy stage. The Obama Administration could, of course, have kept the whole matter secret. Moreover, if it really had the national security and state secrecy concerns that DOJ lawyers now claim in their briefs, that’s just what it would have done. Instead, on April 7, “high-level U.S. officials” advised a series of national publications, including the Washington Post and New York Times that the National Security Council, headed by President Obama, had issued paperwork to authorize a lethal attack on al-Awlaki. These reports were confirmed (obliquely) by former National Intelligence Director Dennis C. Blair. Then Counterterrorism Advisor John Brennan spilled the beans in an interview with the Washington Times. It decided to shove the case of al-Awlaki into the political spotlight—perhaps as the latest chapter in the Obama team’s ¿quién es más macho? struggle with their Bush-era predecessors. Having done so, they had an obligation to the American public to step out of the shadows and fully explain their rationale for authorizing the execution of a U.S. citizen. They have the same obligation to a federal court. They don’t have to tell us how they plan to kill him. They have to tell us why they feel they have legal authority to do it and what facts they have that justify this extreme claim of presidential power. The self-serving claims of the Justice Department’s briefwriters notwithstanding, the basis for the president’s claim of legal authority cannot itself be a secret.

The Justice Department’s brief is filled with slithering evasions and half-truths about what the administration previously said and did. It invokes state secrecy defenses, claiming that this is something “rarely done,” and that the government is entitled to stop the case from proceeding. And it argues that al-Awlaki can avoid the threat of extrajudicial execution simply by walking into the U.S. embassy in Yemen and turning himself in—a legitimate call if there were criminal charges pending against him, but where are they? This is the typical niggling of lawyers out to defend their client in a lawsuit without revealing much of their hand. But it is fundamentally unworthy of the American government, and it reveals an attitude to the public and the courts that borders on contempt. I picked up this brief expecting to nod in agreement with Obama on this issue, and I came away concerned about an unseemly game plan.

I have no doubt that the Obama Administration will prevail in this litigation. The court handling the case is likely to employ one of several judicial escape pods. It will find that al-Awlaki senior cannot represent the interests of his son, for instance, or it will determine that the issue presented is essentially a political question in which federal courts shouldn’t meddle. Indeed, any federal court would feel awkward reviewing the executive’s decision to designate targets in a war. But these findings would be acts of judicial cowardice. The executive should be forced to explain itself.

No doubt the government has concluded that al-Awlaki is a heinous figure who has committed serious crimes and should be made to pay for it. But for all of the massive operations recently undertaken in Yemen, I see no evidence yet that the government is trying to apprehend him and charge him for any criminal acts–even though it has spelled out facts suggesting that it could easily do just that. Is the rationale that a bullet to the head or a bomb dropped on his house would be far more expedient than an indictment and a trial? That sends a chill down my spine. It seems increasingly that the Obama White House is using the al-Awlaki case to establish a new principle: the president’s power to order extrajudicial executions of American citizens. I don’t for a second question the principle established in Quirin, and I believe that the president can in some circumstances target and remove figures in a command-and-control position over hostile forces even if they are removed from a conventional battlefield. But I am deeply suspicious of the need to add to the president’s theoretical powers by killing a U.S. citizen in Yemen who could certainly be captured, brought back to the United States and put on trial.

A number of commentators have questioned the president’s claim of authority to assassinate, some calling it “tyrannical.” As a wise observer wrote of the suspension of the habeas corpus right of Americans in 1777, tyranny comes “when liberty is nibbled away, for expedients, and by parts…. Now a line is drawn, which may be advanced further and further at pleasure, on the same arguments of mere expedience on which it was first described.” This process of steady erosion has long been under way in our country. When the executive claims the power to take the life of a citizen without recourse to law and legal process, and seeks to sustain that under vague claims of commander-in-chief authority, that claim is in its essence tyrannical.

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