Does the US government have the right to kill an American citizen during wartime without due process?
That was just one of the issues raised when the CIA targeted and killed Al-Qaeda in the Arabian Penninsula leader Anwar al-Awlaki, an American citizen who has been cited in several attacks, including being the inspiration for the Fort Hood massacre.
Leaks at the time of the attack last September suggested that the administration had a go ahead from the Department of Justice in the form of a highly classified legal opinion. Now, the Daily Beast reports that the Obama administration, after months of debate, has decided to publicly justify the killing of Awlaki:
Now the administration is poised to take its case directly to the American people. In the coming weeks, according to four participants in the debate, Attorney General Eric Holder Jr. is planning to make a major address on the administration's national-security record. Embedded in the speech will be a carefully worded but firm defense of its right to target U.S. citizens. Holder's remarks will draw heavily on a secret Justice Department legal opinion that provided the justification for the Awlaki killing. The legal memorandum, portions of which were described to The New York Times last October, asserted that it would be lawful to kill Awlaki as long as it was not feasible to capture him alive-and if it could be demonstrated that he represented a real threat to the American people. Further, administration officials contend, Awlaki was covered under the congressional grant of authority to wage war against al Qaeda in the wake of 9/11.
An early draft of Holder's speech identified Awlaki by name, but in a concession to concerns from the intelligence community, all references to the al Qaeda leader were removed. As currently written, the speech makes no overt mention of the Awlaki operation, and reveals none of the intelligence the administration relied on in carrying out his killing. (White House spokesman Tommy Vietor declined to comment).
That circumspect approach contrasts dramatically with the administration's posture in the aftermath of Osama bin Laden's death, when the president personally addressed the nation to announce the al Qaeda leader's demise, and key members of his team provided on-the-record accounts of the operation in almost novelistic detail. But the circumstances of that operation differ in crucial respects from the Awlaki strike. The latter involved the CIA's still secret drone program, and Awlaki was American-born, adding an additional level of sensitivity.
In the aftermath of the Awlaki operation, civil libertarians and some prominent members of Congress called on the administration to make its legal analysis public. Some supporters of disclosure, including Sen. Dianne Feinstein of California, have made the case to Obama officials that speaking openly would be the best way to maintain public support for a program that they believe is necessary but remains controversial.
The president's role as Commander in Chief, both historically and constitutionally, gives him wide latitude in interpreting what is deemed necessary and proper during a time of war. No doubt the DoJ referred to past presidential actions in fashioning its argument regarding the killing of American citizens by the US government during wartime.
It won't satisfy the civil libertarian absolutists. But, as they say, the Constitution is not a suicide pact. Al-Awlaki was planning attacks on Americans and urging such attacks on the internet. It may be a messy constitutional issue, but as a matter of self defense, it seems reasonable and logical to side with the government.