When I saw the title “Obama’s Terrorism Policies Worse Than Bush’s” at the Daily Beast, I rolled my eyes and clicked, expecting to find another boring hand-wringing fest about how Barack Obama hasn’t done enough to undo George W. Bush’s eeevil counter-terror policies like Guantanamo Bay.
Actually, author Roger Hodge has something a bit bigger on his mind: Obama has ordered the assassination of a radical Islamic cleric named Anwar al-Awlaki. From Yemen, Awlaki releases videos calling for terror attacks against the US, and is accused of coordinating jihadist plots as well.
Because Awlaki is an American citizen, who was born in New Mexico, officials have said that special approval for the assassination order had to come from the National Security Council. How comforting to devotees of due process. Even so, despite the fact that the Obama Administration for its own obscure reasons has quite deliberately informed the entire world that Awlaki graces both a JSOC and a CIA kill list, the government has declined to file charges against him and it has produced no evidence of his operational activities.
In July, the Secretary of the Treasury declared Awlaki to be a “specially designated global terrorist,” thus making it a crime for lawyers to represent him without obtaining a special license from the suitably Orwellian-named Office of Foreign Asset Control. After obtaining the necessary license, the ACLU and the Center for Constitutional Rights joined Awlaki’s father in a lawsuit challenging the government’s death sentence. On Friday, the Department of Justice responded. After running through a number of arguments seeking, incredibly, to deny standing to a father contemplating the extrajudicial execution of his son, the government argued that a court of law can have no role in determining whether President Obama may authorize the assassination of an American citizen, though it coyly refused to confirm or deny that Awlaki has been targeted. Brushing aside demands from the plaintiffs to provide evidence that Awlaki’s continued existence constitutes an imminent threat, the operative legal standard for lethal force, the brief asserted that simply allowing the case to proceed would reveal state secrets and jeopardize national security.
The Constitution, of course, is pretty clear that American citizens cannot be put to death without due process. On the other hand, while reverence for the law is one of America’s highest values, our Founding Fathers did not consider it the highest—Thomas Jefferson said that the “laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation,” and that dogmatic adherence to written law at the expense of self-preservation was “absurdly sacrificing the ends to the means.”
Meanwhile, in the Federalist, Publius explains that a vigorous, unitary executive is “essential to the protection of the community against foreign attacks,” and warns that, “because it is impossible to foresee and define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them […] no constitutional shackles can be wisely imposed” on the president’s defense powers.
So while the case should definitely turn heads, and you don’t have to be an appeasement-minded leftist to have reservations, Hodge’s dire warnings may yet miss the mark. Does the Constitution protect American citizens even in this most heinous of circumstances, or does waging war against your country strip you of any claim to its safeguards?