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A Farewell to Due Process: The Assassination of Anwar Al-Awlaki

The assassination of Anwar Al-Awlaki suggests that due process might be going the way of all good things. If we strip away the inflated rhetoric comparing Al-Awlaki to Osama bin Laden, the facts are troubling.
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The habeas right to demand cause for being detained is the only right explicitly named in the original Constitution. And though the meaning of the due process clause of the Fourteenth Amendment is often debated, it is seldom denied that citizens should have knowledge of the charges for which they are being tried, and should be tried before being punished. It is no wonder: any society that is governed by laws, rather than the whims of the mighty, will preserve those right at all costs.

But the assassination of Anwar Al-Awlaki suggests that due process might be going the way of all good things. If we strip away the inflated rhetoric comparing Al-Awlaki to Osama bin Laden, the facts are troubling: a U.S. citizen suspected of directing a criminal network was targeted for killing without ever being charged with a crime. Killed in the same attack was Samir Khan, who is described by the Washington Post as "a driving force behind Inspire, the English-language magazine produced by al-Qaeda in the Arabian Peninsula. An administration official said the CIA did not know Khan was with Awlaki, but they also considered Khan a belligerent whose presence near the target would not have stopped the attack." The life of a citizen can be disregarded because he is involved in publishing an offensive magazine? There may be more evidence against Al-Awlaki and Khan, but we're not likely to see it: the government has claimed the right to keep it all a secret, citing security and executive privilege.

This is not the first attempt of the U.S. Government to kill Al-Awlaki, who was targeted in a May 2010 drone strike. The ACLU and the Center for Constitutional Rights represented Al-Awlaki's father in an ensuing lawsuit, in which the government's lawyers argued that targeted killings are not subject to judicial review. The U.S. District Court for the District of Columbia dismissed the case. Responding to the September 30 killing of Al-Awlaki, the ACLU's Deputy Legal Director, Jameel Jaffer, made a statement that any reasonable person must find self-evidently true:

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. 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.

This assassination also flies in the face of the Supreme Court's rulings in the so-called "War on Terror." If the Court has called into question suspending the habeas rights of foreign nationals in Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006), and Boudmediene v. Bush (2008), what legal justification can possibly be offered for executing a U.S. citizen without any sort of indictment or trial?

There is only one: that suggested in the Constitution's habeas clause, where the right may be suspended "in cases of rebellion or invasion" where "the public safety may require it." Finding Al-Awlaki to be a rebel presenting an imminent danger to public safety requires a flight of paranoia that would make Norman Podhoretz blush. And yet, as this column in Mother Jones suggests, the administration through its terrorism czar John Brennan will likely justify this as the elimination of such a threat on the grounds that fighting terrorism requires us to take a labile view of imminence. The Justice Department's leaked memorandum authorizing this killing claims that it adheres to the "due process of war;" this too is a labile definition given that we are not at war with Yemen.

I worried some time ago that the Obama administration's policy on targeted killings was venturing into violations of law and morality worse than those of its predecessor. This latest assassination makes that worry all the more pronounced; yet again we are left to lament that the 44th president is no friend of human or civil rights. As Glenn Greenwald noted in an interview with DemocracyNow!, if we were outraged by the Bush administration for its detention of and spying on U.S. citizens, we must be even more outraged by the execution of citizens without charges, or trial, or even public presentation of evidence indicating that an individual posed any threat at all to public safety.

The only silver lining here is that found by Peter D. Feaver in Foreign Plolicy: that in 2012 the Republicans will no longer be able to brand themselves as the party of lawless aggression, and just might lose a share of the knuckle-dragging vote. That seems to be all the motivation this administration needs to keep adding heads to its trophy case.

The above is cross-posted from the website of Dissent Magazine.