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The Death Of Anwar Al-Awlaki And The Imperial Presidency

The death of Anwar al-Awlaki and at least two other high-level al Qaeda operatives in a Predator Drone strike has raised serious questions about the limits of Presidential authority and just how far the President’s war powers extend, especially when we’re technically not in a war:

WASHINGTON — The killing of Anwar al-Awlaki, an American citizen struck on Friday by a missile fired from a drone aircraft operated by his own government, instantly reignited a difficult debate over terrorism, civil liberties and the law.

For the Obama administration, Mr. Awlaki, 40, had joined the enemy in wartime, shifting from propaganda to an operational role in plots devised in Yemen by Al Qaeda in the Arabian Peninsula against the United States. Early last year, officials quietly decided that his actions justified making him a target for capture or death like any other Qaeda leader.

But a range of civil libertarians and Muslim-American advocates questioned how the government could take an American citizen’s life based on secret intelligence and without a trial. They said that killing him amounted to summary execution without the due process of law guaranteed by the Constitution.

That argument was pressed unsuccessfully in federal court last year by the American Civil Liberties Union and Mr. Awlaki’s father, Nasser al-Awlaki, a former agriculture minister and university chancellor in Yemen. A federal judge threw out their lawsuit, noting that the younger Mr. Awlaki had shown no interest in pursuing a claim in an American justice system he despised.

On Friday, Jameel Jaffer, the A.C.L.U.’s deputy legal director, said that the drone strike, which killed Mr. Awlaki and another American, Samir Khan, violated United States and international law. “As we’ve seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public, but from the courts,” Mr. Jaffer said.

Robert M. Chesney, a law professor at the University of Texas who specializes in national security law, said he believed that the killings were legal. But he said it was “plenty controversial” among legal specialists, with experts on the left and on the libertarian right deeply opposed to such targeted killings of Americans.

The administration’s legal argument in the case of Mr. Awlaki appeared to have three elements. First, he posed an imminent threat to the lives of Americans, having participated in plots to blow up a Detroit-bound airliner in 2009 and to bomb two cargo planes last year. Second, he was fighting alongside the enemy in the armed conflict with Al Qaeda. And finally, in the chaos of Yemen, there was no feasible way to arrest him.

The attack itself should not have come as a surprise. President Obama authorized the assassination of al-Awlaki way back in April 2010, a move that seemed to contrast at the time with the Administration’s policy that terror suspects such as Khalid Sheikh Mohammed should be tried in civilian courts. The move was criticized not only by civil libertarians like Glenn Greenwald, but also by some on the right such as National Review’s Kevin Williamson, who wondered what kind of precedent this kind of an order directed against an American citizen would be setting. When the ACLU and other groups filed suit in Federal Court in an effort to block the targeting of al-Awlaki, the Administration invoked the controversial “state secrets doctrine” to block the lawsuit, a move that the Bush Administration had used several times to block inquiries into detention of suspected terrorists after the September 11th attacks. As Glenn Greenwald commented at the time of this development, if a President can order the targeting of an American citizen without due process and then block any effort by other branches of government to review the decision, then what can’t he do?

Today The Washington Post reports that the Administration had prepared a secret legal memo justifying the targeting of al-Awlaki as a legitimate exercise of the President’s authority:

The Justice Department wrote a secret memorandum authorizing the lethal targeting of Anwar al-Aulaqi, the American-born radical cleric who was killed by a U.S. drone strike Friday, according to administration officials.

The document was produced following a review of the legal issues raised by striking a U.S. citizen and involved senior lawyers from across the administration. There was no dissent about the legality of killing Aulaqi, the officials said.

“What constitutes due process in this case is a due process in war,” said one of the officials, who spoke on the condition of anonymity to discuss closely held deliberations within the administration.

(…)

“As a general matter, it would be entirely lawful for the United States to target high-level leaders of enemy forces, regardless of their nationality, who are plotting to kill Americans both under the authority provided by Congress in its use of military force in the armed conflict with al-Qaeda, the Taliban, and associated forces as well as established international law that recognizes our right of self-defense,” an administration official said in a statement Friday.

At first glance, the targeting of al-Awlaki would appear to be cloaked with at least some semblance of legal authority. As with the raid that killed Osama bin Laden and the Predator Drone campaign that started in Yemen this summer, attacks on al Qaeda elements such as al-Awlaki and his companions would appear to be authorized by the Authorization For Use Of Military Force that Congress authorized mere days after the September 11th attacks. That AUMF has never been repealed or modified, and it gave the President authority to go after al Qaeda, its affiliates, and those who shelter them regardless of where they might be located. One could argue that this kind of open-ended AUMF is unwise and possibly exceeds Congressional authority. The time to have that discussion, though, was when the resolution was being debated, not ten years later after the President has acted under its authority while Congress has essentially ceded its role completely and not even conducted the most cursory of reviews. When Congress passed that authorization, they signed us up for a “War On Terror” with no logical end point and they gave the President an exceedingly broad, possibly excessive, amount of authority to conduct that war.r

The question, though, is whether that authority, or any of the President’s powers under the Constitution, does or should include the power to decide on his own when an American citizen not on an active battlefield can be assassinated without any judicial determination that they have done anything to warrant such a sentence.

The answer seems to me to be that, at the very least, granting such authority to the President should make one uneasy. Whether or not foreigners suspected of being terrorists deserve all of the protections of our courts is an issue on which there is, perhaps, some room for debate. As we’ve learned over the ten years of the War On Terror, capturing these men in a foreign country and then taking them to some secure location for questioning, in some cases using torture methods to extract information, is only half the battle. We still have to figure out what to do with them. Treating them like Prisoners of War doesn’t seem to make sense because we’re not engaged in the type of war that’s likely to have any kind of identifiable end (which is the point at which POWs are typically released). The argument against holding trials in civilian courts are well-known, and such trials seem to be rather phony when it’s clear that the Defendants are never going to be released regardless of the outcome. Holding them forever seems wrong as well, because it seems to suggest that there is a class of offenses for which one need not be tried by the state. One of the greatest legal failures of the post 9/11 world has been the failure of our government to find a way to deal with these people.

When it comes to American citizens, though, there doesn’t seem to be any question of how they should be treated. The Constitution sets forth those protections in the Bill of Rights, and the Courts exist As Rick Moran notes, al-Awlaki has never been convicted of any offense against American citizens, or anyone else for that matter. Instead, the President of the United States, along with his advisers, determined that he was a threat, targeted him specifically, and set out to kill him without regard to any of the protections set forth in the 5th, 6th, 7th, or 8th Amendments to the Constitution. And, the American people are cheering the fact:

What’s most striking about this is not that the U.S. Government has seized and exercised exactly the power the Fifth Amendment was designed to bar (“No person shall be deprived of life without due process of law”), and did so in a way that almost certainly violates core First Amendment protections (questions that will now never be decided in a court of law). What’s most amazing is that its citizens will not merely refrain from objecting, but will stand and cheer the U.S. Government’s new power to assassinate their fellow citizens, far from any battlefield, literally without a shred of due process from the U.S. Government.  Many will celebrate the strong, decisive, Tough President’s ability to eradicate the life of Anwar al-Awlaki — including many who just so righteously condemned those Republican audience members as so terribly barbaric and crass for cheering Governor Perry’s execution of scores of serial murderers and rapists: criminals who were at least given a trial and appeals and the other trappings of due process before being killed.

From an authoritarian perspective, that’s the genius of America’s political culture.  It not only finds ways to obliterate the most basic individual liberties designed to safeguard citizens from consummate abuses of power (such as extinguishing the lives of citizens without due process).  It actually gets its citizens to stand up and clap and even celebrate the destruction of those safeguards.

We’ve already sat back for ten years while the War On Terror chipped away at protections granted under the Fourth Amendment and other provisions of the Constitution. Before that, we sat back and watched while the same thing happened in the name of the War on Drugs. In both cases, it was said that the government needed more power because it needed to keep us safe. Quickly, though, these new powers were used for far more than just their intended purposes. Little has been said, for example, about the fact that many of the enhanced investigation powers granted to law enforcement under the PATRIOT Act are being used more frequently in non-terrorism cases than they are in cases involving actual or suspected terrorism. Now that we’ve set the precedent that due process can take place during a secret closed meeting in the White House Situation Room, are we going to again see the expansion of this new authority?

In his piece over at The Atlantic James Joyner argues that such fears are over-stated:

First, and perhaps most importantly, the road to the Oval Office goes through the American people. The grueling two-year campaign cycle serves as a powerful vetting tool, weeding out candidates without the character, judgment, and temperament to sit in the big chair. It’s not a perfect safeguard, of course, and there’s room to quibble over the quality of a few who made it through.

Second, we have a system of checks and balances. Congress has the power to force its way into the decision-making process in cases like this one, where action is planned over months and even years. In the Awlaki case in particular, Capitol Hill has had plenty of time to insist that the Obama administration lay out its case for action. Either they’ve done that (behind closed doors in the appropriate national security committees) and been satisfied or they’ve abrogated their responsibility. Further, lacking such advance warning, Congress can certainly exercise its oversight powers after the fact, calling the administration on to the carpet. Its members have enormous power in this regard, up to and including the ability to impeach the president.

Additionally, the courts also have a significant role to play in safeguarding the Constitution. While they’ve historically been deferential to elected policy-makers on matters of national security policy, they have, as seen in Hamden, Boumediene, and several other cases, been willing to limit their prerogatives, even when applied to unsympathetic defendants, in order to defend larger principles.

These points are all well-taken, and also bring up an important point. The killing of al-Awlaki does not, in my opinion, mean that we have to suddenly fear that an American President is going to create a 21st Century version of Nixon’s Enemies List that orders the assassination of American citizens. No doubt, there will be some political paranoids out there who will, and probably already are, arguing that we need to start worrying about just this eventuality. These are the same people who worried about men in black helicopters in the 1990s, and who seem to have a quadrennial fear that the sitting President, whoever he happens to be, is going to declare Martial Law and cancel the elections. Could those things happen in America? Probably, but it would have to be an America far different from the one we’re living in today.

At the same time, though, there is something about the idea that we just need to trust the President in situations like this. Even if the man or woman who sits in the Oval Office isn’t likely to go off half-cocked in the manner some of the paranoids might fear, that doesn’t mean that any person should be trusted with the kind of life and death power over American citizens that the al-Awlaki killing seems to have now granted to the Executive Branch. Moreover, as Conor Friedersdorf notes, we already know that the government has been wrong in the past, even innocently wrong. We also know that our intelligence services have been glaringly wrong in the past. Knowing that, the idea that the President now has the authority to sentence someone to death without due process simply by reaching the conclusion that he or she is a terrorist is deeply concerning to say the least.

The other problem is that there really are no checks and balances on this new authority granted to the President. When al-Awlwaki’s family joined with civil liberties groups to try to challenge the President’s assassination order, the Administration advanced a legal theory that essentially said the courts have no right to review Presidential decision-making in these situations. Last December, the Federal Judge hearing the lawsuit dismissed the case, essentially buying the Obama Administration’s arguments and effectively stating that there is no judicial forum in which such an order could ever be reviewed.  For political reasons, it’s unlikely that Congress would even attempt to do anything about a Presidential assassination order, a conclusion supported by such things as the history of Congressional deference to the President in foreign affairs and its unwillingness to enforce the War Powers Act. Indeed, it was Congress’s decision to grant the President virtually unlimited power in the wake of the September 11th attacks that arguably provides President Obama with at least a veneer of legal authority in the killing of al-Awlaki. Given this, there is really no hope that either of the other branches of government would ever be a sufficient check on a Presidential decision made in secret, and asserted to be exempt from review by an other authority.

In the absence of any such checks and balances, President Obama has continued the tradition that began at least with the Presidency of Woodrow Wilson, and probably much earlier, of asserting increasingly large amounts of authority for the Executive Branch. With very few exceptions, these assumptions of power have never been challenged, rarely questioned, and almost never scaled back. Barack Obama’s own Presidency is an excellent demonstration of this. After campaigning for the Senate and the White House as a critic of the Bush Administration’s policies in the War on Terror and Iraq, he came to office and has essentially continued most of the very policies he was criticizing. The power of the Presidency doesn’t seem so bad, I guess, when it’s your side that’s exercising it. The problem, as conservatives have found under Obama and liberals will likely find when the next Republican is elected President, is that the next guy will have those same powers and he’s likely to use them in ways you don’t like. In the end, though, it’s not a matter of who exercises the power, but whether the power should be exercised at all.

In a statement released yesterday, former New Mexico Governor and Republican Presidential candidate Gary Johnson said the following:

The protections under the Constitution for those accused of crimes do not just apply to people we like — they apply to everyone, including a terrorist like al-Awlaki.  It is a question of due process for American citizens.”

“I understand that laws may allow these decisions by the President and other officials in regard to al-Awlaki, and I do not in any way want to diminish the skill and dedication of our CIA and military.  But, at the same time, it must not be overlooked — and thoughtfully examined — that our government targeted a U.S. citizen for death, and carried out that sentence on foreign soil.  To my knowledge, that is a first, and a precedent that raises serious questions.

“If we allow our fervor to eliminate terrorist threats to cause us to cut corners with the Constitution and the fundamental rights of American citizens, whether it be invasions of privacy or the killing of someone born on U.S. soil, I could argue that the terrorists will have ultimately won.

That last statement is true of all the powers that have been assumed by the Federal Government in the ten years since 9/11, but there seems to be something different this time. The facts of the al-Awlaki case aside, the question we really need to be asking ourselves now is whether it’s a good idea that Presidents now have this new, unilateral and largely unchecked, authority to decide that an American citizen is a “terrorist” and must therefore die. Weighing everything in the balance, I think the answer is clearly no.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. James Joyner says:

    One point I meant to but failed to include in my Atlantic piece is that the military and intelligence community leadership serves as a significant check on rogue presidential action. Absent pretty solid evidence that a citizen is an enemy combatant, they’d almost certainly refuse the order and put the president under arrest.

    The main danger isn’t rogue action so much as error. But, again, that’s why we scrutinize the hell out of presidents.

    Like or Dislike: Thumb up 2 Thumb down 0

  2. Hey Norm says:

    Ten years later is a little late to be crying about giving up all our values and letting the terrorists win. Is the chattering class really just figuring this out? In 2001 almost everyone was more than willing to sign onto a never-ending war and an Executive branch unfettered by the Constitution. Bush and Cheney were going to get the dark-skinned people with rags on their heads – dead or alive. Rah-Rah-Rah went the cheerleaders. That Bush is a natural born leader. Unfortunately reality doesn’t always live up to rhetoric. Unintended consequences almost never do.
    At least Greenwald has been absolutely consistent. Nice to see the rest of the punditocracy catching up. Better ten years later than never.

    Like or Dislike: Thumb up 8 Thumb down 5

  3. @James Joyner:

    A fair point, at least one would hope that a President abusing a power like this would be exposed by someone leaking information to the press. We’re putting an awful lot of trust in human beings, though.

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  4. michael reynolds says:

    There is no law in Yemen and no one to enforce a law. Obviously if Al Awlaki were in France we’d call upon French authorities to pick him up. If he were sitting at the Deux Magots eating a brioche I’m confident that we would not have fired a Hellfire at him. No reasonable American imagines that we would. No American military officer would carry out that order but if by some chance it was done the president would be impeached.

    So this slope really isn’t very slippery except in the abstract. Place the events in the real world and almost no slipperiness is to be found.

    Where law exists, and we have recourse to it, we are obligated to follow it. Where lawlessness prevails, and where no responsible law enforcement authority can be found, we use other means to protect ourselves.

    Put it another way: the fact that some parts of this world are run by madmen or that some parts of this planet are anarchic and beyond the reach of civilized law does not mean we must remain helpless and submit to whatever threat comes from those quarters.

    We have a right to defend ourselves. Legally wherever law exists. But by other means when necessary.

    Like or Dislike: Thumb up 6 Thumb down 6

  5. @michael reynolds:

    There are ways for this matter to be judged by an independent tribunal without al-Awlaki being present in the United States, but the Administration took the position that no court has the authority to review the President’s decisions in these matters. In essence, they argued, the law is whatever the President says it is. Where ever he is right now, Richard Milhous Nixon must be smiling.

    Like or Dislike: Thumb up 3 Thumb down 1

  6. ponce says:

    Absent pretty solid evidence that a citizen is an enemy combatant, they’d almost certainly refuse the order and put the president under arrest.

    Thanks for the laugh, James.

    Like or Dislike: Thumb up 4 Thumb down 4

  7. michael reynolds says:

    Would an independent tribunal have had the authority to sentence an American citizen to death without trial? I don’t believe that power exists within the law.

    And no independent tribunal has the burden of defending the country from terrorist attack. That’s an executive function.

    The only way for this matter to be brought within the law is for the Congress to pass a law explicitly authorizing assassinations — not a great idea, I think. Or for Yemen to gain control of its own territory and to join the community of nations — not possible at this time.

    For now this kind of thing is best left where it is: in a gray zone.

    As for Nixon, he contemplated killing Americans (Ellsberg) in the United States — an area where we do have laws and enforcement of same.

    Like or Dislike: Thumb up 4 Thumb down 3

  8. See our recent post regarding the broader context of this alleged assassination:

    essential-intelligence-network.blogspot.com/

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  9. @michael reynolds:

    I would much prefer the messiness of the judiciary to granting to one man or woman the power to make decisions like this in secret and not subject to review or challenge.

    It’s that whole “absolute power corrupts absolutely” thing, you see.

    Like or Dislike: Thumb up 4 Thumb down 0

  10. michael reynolds says:

    Every president is subject to the will of the electorate, and subject as well to the legislative branch if they find his/her actions criminal. I’m not sure why a tribunal dropping the hammer on American citizens abroad is better than the president doing it. Would the members of this largely theoretical tribunal have been elected by the American people? Could they be tossed out by same? Can their actions be investigated by Congress? I don’t see that they are any more accountable than the president.

    Like or Dislike: Thumb up 4 Thumb down 3

  11. EddieInCA says:

    Shorter Doug: “It was cool when Bush was doing it, but now that Obama is doing it, we’d better put a check on it.”

    Like or Dislike: Thumb up 9 Thumb down 3

  12. Your right to point out that al-Awlaki’s has never been convicted in a US court, but he’s also never even been indicted or had formal charges of any kind brought against him in the US.

    Like or Dislike: Thumb up 1 Thumb down 0

  13. @EddieInCA:

    Which would make sense if I was a supporter of George W. Bush. But I’m not.

    Like or Dislike: Thumb up 1 Thumb down 1

  14. ponce says:

    I would much prefer the messiness of the judiciary to granting to one man or woman the power to make decisions like this in secret and not subject to review or challenge.

    One man?

    The over-eager, over-armed police forces across the United States can’t seem to make it a day without gunning down an innocent American civilian.

    http://www.king5.com/news/local/Video-of-fatal-Seattle-police-shooting-of-woodcarver-released-112106374.html

    Why get your panties in a bunch over a single guilty as hell terrorist freak?

    Like or Dislike: Thumb up 2 Thumb down 5

  15. Ben Wolf says:

    The other problem is that there really are no checks and balances on this new authority granted to the President.

    This to me is the greatest concern for those who happen to like the American system. The Founders were intent on a system whereby no part of our government could operate with impunity. Yet we’ve spent the last ten years (one could argue the sixty years since the birth of the national security state) finding in a systematic manner ways for Presidents to get around checks on their power. This is in direct contravention to the fundamentals of our government and it seems like few people are giving serious thought to how this could ultimately play out.

    Like or Dislike: Thumb up 1 Thumb down 0

  16. Ben Wolf says:

    @ponce: Doug has been pretty consistent on opposing the aggresive manner in which law enforcement is being deployed against the people it ostensibly exists to protect. As for al-Awlaki, the government has yet to provide actual evidence the man was, in fact, a terrorist. I believe in the concept of innocent until proven guilty, and I’m sure you do as well.

    Like or Dislike: Thumb up 1 Thumb down 0

  17. ponce says:

    I believe in the concept of innocent until proven guilty, and I’m sure you do as well.

    U.S. forces killed somewhere north of 2000 innocent civilians in Afghanistan last year.

    Again, why get so upset over this guy?

    Just seems like so much legal masturbation.

    Like or Dislike: Thumb up 3 Thumb down 3

  18. The Heretik says:

    @James Joyner: Absent pretty solid evidence that a citizen is an enemy combatant, they’d almost certainly refuse the order and put the president under arrest. Yeah. Some might call that the ultimate citizen’s arrest. Others might call it a coup.

    In either case one would hope those checking the president to bring things back into balance would offer some evidence out in the open. Which is more than anyone else has done in this case.

    So with respect, your point is speculation. Until a case on Awlaki is presented in the open, unfortunately, the case against him is also the same. Speculation.

    This is where our country is now. Creeping along. Before Greenwald et al (moi included) would deride Bush for detaining somebody like citizen Padilla without due process. And now there are deaths required without warrants. The boundary creeps. And nobody gets too creeped out. Because this guy was a terrorist. So we are told.

    Like or Dislike: Thumb up 1 Thumb down 0

  19. Wayne says:

    Re “We’re putting an awful lot of trust in human beings”

    Are you suggesting the courts are not made up of human beings? I’m not sure why you have so much trust in the court establishment and so little in other establishments.

    The courts are limited in their capabilities and jurisdiction. A person on foreign soil has very very limited responsibilities and protections compared to when they are on our soil. As has been discuss in other post there are exceptions. For example member of the U.S. military have special rules that cover them overseas. However they do not fall under the traditional laws but under the UMCJ. Enemy agents are not in the same categories as the U.S. military. They don’t have the same responsibility nor protection.

    Even on U.S. soil, laws often do not apply to enemy combatants. During the U.S. Civil War Southerners were attacked without going through the court systems. Spies were often shot on the spot. Plantations, equipment and supplies were often destroyed on a commander’s order not the courts.

    Anwar went through the process. It was determine he was an enemy combatant. The intelligence agencies are much better suited for this purpose than our court system. They are design for that and the courts are not.

    Obama and his administration did nothing illegal or improper in this case. Yes giving government great power is scary. It can be abused. However this is one area they need great power. Other areas like force healthcare they should not.

    Like or Dislike: Thumb up 3 Thumb down 0

  20. Racehorse says:

    This man seemed to be tied in or behind efforts to cause massive destruction, deaths, and injuries. Action taken has prevented that from happening. While there are some questions about setting precedents and the legality of killing an US citizen, I am more concerned about a rogue drone getting off its target and flying off into a town or city, or a drone somehow being hacked into and controlled by a nutcase; resulting in the deaths of large numbers of innocent people. While there may be some similarities in this case and the infamous “trial” of the Booth conspirators in 1865, in which they were not allowed to testify and almost no evidence was offered by the military prosecutors, there are major factors that do not compare at all.

    Like or Dislike: Thumb up 0 Thumb down 0

  21. Randall Hodge says:

    Like most people, I am delighted we took out Awlaki, but it was wrong. We are only a few steps away from an overzealous political appointee ordering a hit on one of his master’s political enemies. Perhaps because he “perceives” it to be the unspoken will of his leader. Obama has made this easier to contemplate. Take out the bad guys.

    I hope I’m never considered a “bad guy”.

    After Ruby Ridge and Waco, I came to believe at least some individuals, elements or agencies of the government are capable of almost anything. It took the Oklahoma City bombing to wake us up to the dangers of a rogue agency like the ATF.

    Based on some of the antics of our own polyester Gestapo, the TSA, it won’t surprise me if that experiment doesn’t end well either. I rarely fly any more, but I dread to think some of those people are armed. Many leave all common sense at the door.

    Great piece, Doug.

    Like or Dislike: Thumb up 0 Thumb down 1

  22. ponce says:

    I am more concerned about a rogue drone getting off its target and flying off into a town or city, or a drone somehow being hacked into and controlled by a nutcase; resulting in the deaths of large numbers of innocent people.

    No need to worry about that.

    There are perfectly serviceable drones available for purchase in hobby shops around the globe.

    Like or Dislike: Thumb up 0 Thumb down 2

  23. Lit3Bolt says:

    @michael reynolds:

    Michael, I think you want the President to have all the joys and powers of Realpolitik without the accountability. You never come out and say it or support it, which makes me think you’re either a hypocrite or a intellectual coward. So the President is hampered by the Constitution in America, but has limitless power in Yemen? Is that really your position?

    Will you deign to come off your perch and even define your gray zone about this issue? Or will you hide in your no accountability, “real world” zone that only you occupy and live in?

    Like or Dislike: Thumb up 2 Thumb down 1

  24. Dazedandconfused says:

    We must be careful and attentive, of course, but I found James Joyner’s article compelling. Conversely, the claim of this as evidence of no checks and balances seems pretty ridiculous.

    The Congress can impeach him at any time. He was quite public about this, giving them and the Judicial brance the opportunity to preempt this action. The making of the plan public gave the defendant an opportunity to lawyer-up and defend himself as well. In fact, it’s his duty as a citizen to do so. When somebody who tries to blow up a jetliner says you helped him do it, that’s just the way things have to be. When you run to a place like the hills of Yemen, you have made it too difficult to arrest you. Send a SEAL team in? How many of them are you willing to sacrifice for him? Those tribes are some tough cookies and armed to the teeth. How may of them would have to be slain? I’d like to hear what your alternative course of action here is, Doug.

    A tribunal of judges? Making an institution out of an incident, IMO. There are degrees that make a difference, and making his intentions public is a hell of a difference from a secret order to assassinate someone. A hell of a difference.

    I agree with the concerns of our evolving to an Imperial Presidency, and heartily, but this is not it.

    Like or Dislike: Thumb up 1 Thumb down 1

  25. Lit3Bolt says:

    @Ben Wolf:

    Thank you, Jesus. People cite all knowingly like they have direct, on-hand evidence al-Awlaki was a vital member of al-Qaeda when they really have nothing other than one video, which is the same like a Muslim teenager’s rant on Youtube. Hey let’s kill them, they’re evil! We just KNOW because we lived through Vietnam and the Cold War, non sequiter old person argument from authority yayyyyyyy!

    Like or Dislike: Thumb up 1 Thumb down 1

  26. Herb says:

    It took the Oklahoma City bombing to wake us up to the dangers of a rogue agency like the ATF.

    Say what? Are you saying Tim McVeigh had a point??? Sheesh…

    As to the argument about the imperial presidency….I know it’s not the most moral case to be made, but this country lined up around the block to invade Afghanistan and Iraq. So now we do a surgical strike on a dude and everyone freaks out? I don’t get it.

    Isn’t this how we should have been doing it all along? If we didn’t have the albatross of Bush’s approach hanging around our necks, would we be complaining about the imperial presidency so loudly now? Of course not. We’d be chanting USA! USA!

    Like or Dislike: Thumb up 3 Thumb down 1

  27. Lit3Bolt says:

    @Herb:

    Bush’s failure highlights why these extrajudicial, extraconstitutional powers are so ridiculous. It only works if your President is part of the team you approve of. If he is, great, but if not, Constitutional battles loom!!

    No one can define the killing of al-Awlaki because no one even knows if we’re at war or not, and with whom or what, and if they can surrender or simply wait to be obliterated. No one wants to address what this means for the future, because the this is so unprecedented. Thus, none of the self-proclaimed “foreign policy experts” such as Michael Reynolds will say anything definite about the legality of this assassination because he doesn’t have the guts to call it as he sees it and prefers to hide it in a “grey zone” like that solves everything which we should obey unquestioningly.

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  28. Randall Hodge says:

    Well of course McVeigh had a point. You must not be familiar with the case or his motives. He believed the FBI and the ATF were based in the Murrah Building. He blamed the excesses of those agencies and that awful Janet Reno for the BBQ and carnage at Waco. He was there and saw it happen. His “point” was to get our attention and punish the federal government.

    He succeeded.

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  29. michael reynolds says:

    @Lit3Bolt:

    you’re either a hypocrite or a intellectual coward.

    So, just like on the other thread, you come along to insult me gratuitously, based on nothing. Will you whine like a little girl again when I argue back? Waaaah, the old man was mean to me, waaaah. Waaaah.

    I hate to break it to you, but a lot of the things we do in foreign policy live inside the gray zone. This is because a lot of the world is in a grey zone. Now, the government of Yemen (and I use the term loosely) has said they actively supported the attack. There’s a gray zone right there. Is an illegitimate government competent to give us permission to violate their sovereignty?

    But let’s set that aside, and move along. Since you’re a stickler for law and abhor all gray zones, I assume you agree that the agreement by the government of Yemen leaves you minus a legal leg to stand on so far as the issue of sovereignty is concerned.

    Which leaves only the issue of whether a US president can order an attack on a US citizen who is a known traitor, who actively recruits for a terrorist organization, and promotes violent attacks on US citizens.

    So, let’s walk this through. Let’s say that AQ was much more successful than they’ve been to date. Let’s say they haven’t killed 3,000 Americans in ten years but 3,000 every year. Let’s say they’re popping off bombs in malls and slaughtering 3,000 innocent Americans a year.

    And of course this fact drastically alters life in America. Police forces are ramped up, civil liberties are degraded, Muslims are being singled out, the economy is a wreck. In our fantasy scenario Awlaki is head of Al Qaeda. He’s the guy sending those suicide bombers into malls. He’s the guy murdering your sister or brother or parents.

    We’re in the area of abstract principal here, so we’re free to alter the underlying facts to make the case, right? So let’s assume all that and now re-examine the issue of whether or not the president can pull the trigger on a US citizen carrying out wholesale massacres of American citizens — and who happens to live in a lawless failed state.

    Your position is that we have no choice but to sit passively and take it. Same whether it’s 3000 Americans in the towers or, 30,000, or say, 3 million in a dirty bomb attack. No choice. Law is law. No gray zones.

    In fact, if Awlaki had a nuke in NYC we’d still have no choice. Right?

    And if he had smallpox ready to be released in 100 cities, still no choice, no gray zone.

    No matter how great the threat, there is never, ever, ever a gray zone, there is only the letter of the law.

    My position is that the constitution is not a suicide pact, and that we have to act reasonably in response to threats — within the law where law holds sway — and by other means where law is unavailable.

    Now, if your counter-argument is that the situation is not that dire I’ll first welcome you to the gray zone, and then quote Churchill: “Madam, we’ve already established that. Now we are haggling about the price.”

    One more fun thing to think about. I want you to picture the one person you love above all others. I want you to imagine that you have absolute, metaphysical certainty that they will be murdered, and with equal certainty you know who the killer will be. But law enforcement is powerless to help you. Do you take that killer down or do you let the person you love most die for your principals?

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  30. rodney dill says:

    I’m undecided on the legal issues surrounding this sort of action, but I would be more concerned if it were carried out in secret. Right now its out in the open, and if the sentiment from the population in general is that it is good, then so be it. If Congress or individuals think they have a case against the President and this kind of action, then it needs to be made within the system, and the President needs to accept the consequences of his actions/decisions. Franky, in this case, I don’t think there will be any consequences.

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  31. MBunge says:

    @Randall Hodge: “We are only a few steps away from an overzealous political appointee ordering a hit on one of his master’s political enemies.”

    I think the fundamental issue here is that some folks are in denial that we are NEVER more than a few steps away from that or a whole host of other things. What would have been the reaction if some had alleged, before the evidence had come out, that the U.S. was torturing prisoners in Iraq and elsewhere? People, including a great many eventual torture defenders, would have been outraged at the accusation.

    Mike

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  32. Herb says:

    @Lit3Bolt:

    “Bush’s failure highlights why these extrajudicial, extraconstitutional powers are so ridiculous. It only works if your President is part of the team you approve of. “

    I’m not really looking at this from a political angle. I’m looking at it from a pure effectiveness angle. If you want to defeat terrorists, you can invade a country that doesn’t have WMD or you can kill terrorists. As to “no one even knows if we’re at war or not,” let’s clear that up:

    We’re at war. Still. But if we keep up this pace, maybe not for much longer. For too long, the terrorists would play the tune and we’d dance like monkeys. One would fart and we’d go on orange alert. Another tries to blow up his shoes, so now we all have to take off our shoes. Meanwhile, the terrorist is sitting in his compound, far away from Iraq, laughing at us. “Let’s see what they’ll do next,” they say.

    We’re going to send a Predator drone over your house, that’s what we’re going to do. No more @#$%ing around.

    His “point” was to get our attention and punish the federal government.

    He succeeded.

    He succeeded in killing 168 innocent people and getting himself executed by the federal government that he set out to “punish.” He had a point like these terrorists have a point. And that point is always “I write my op-eds in blood.”

    Like or Dislike: Thumb up 3 Thumb down 0

  33. Randall Hodge says:

    @Herb:

    Herb, after the bombing there were hearings and investigations that led to revisions in the rules of engagement. One reform stemming from the Randy Weaver case: It is now more difficult for federal agents to justify shooting a mother holding a baby, or a 12-year old boy (in the back), and his dog over an alleged weapons charge. That’s what I meant by “succeeded.”

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  34. Randall Hodge says:

    @MBunge:

    Tru dat.

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  35. Jeff says:

    If this administration can justify killing 1 American Citizen without proof or due process, it can now justify killing ANY AMERICAN CITIZEN. Our federal government just made it very clear that there is no liberty and justice for all.

    Like or Dislike: Thumb up 3 Thumb down 1

  36. Randall Hodge says:

    @Jeff:

    Exactly why I don’t believe assassinating Al-Awlaki was the best course of action. Any one of us could be deemed the next “bad guy” or “Enemy of the State”.

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  37. michael reynolds says:

    @Jeff:

    If this administration can justify killing 1 American Citizen without proof or due process, it can now justify killing ANY AMERICAN CITIZEN. Our federal government just made it very clear that there is no liberty and justice for all.

    This is tiresome nonsense.

    You might just as easily argue that if the government can justify taking one dollar they can justify taking all dollars. Slippery slope arguments always seem to make sense until you place them in the real world, where they generally fall apart. Bear in mind that virtually all human actions can be slippery sloped. (Mom, if you can tell me to stop eating Fruit Loops you can tell me to starve to death!)

    Like or Dislike: Thumb up 4 Thumb down 3

  38. anjin-san says:

    it can now justify killing ANY AMERICAN CITIZEN

    Funny how many people were either in a coma or actually cheering when our government started a war that caused the deaths of tens of thousands (or more) innocent people in Iraq.

    Suddenly they are awake?

    Like or Dislike: Thumb up 1 Thumb down 2

  39. G.A.Phillips says:

    If this administration can justify killing 1 American Citizen without proof or due process, it can now justify killing ANY AMERICAN CITIZEN. Our federal government just made it very clear that there is no liberty and justice for all.

    American citizen? When you swear your life and allegiance over to an idiot god and make it your duty and career to murder the infidel(Americans)you get your citizenship revoked, and your life when we find your punk a$$!!!

    ObamatepObamatep</del>Obamatep,er,USA!!!USA!!!USA!!!

    Like or Dislike: Thumb up 2 Thumb down 0

  40. anjin-san says:

    Our federal government just made it very clear that there is no liberty and justice for all.

    That is only now becoming clear to you? Where have you been?

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  41. G.A.Phillips says:

    So when Obama gets spanked next year and loses his job he should be appointed National Security Advisor or Director of the C.I.A. ? lol……perhaps Muslim Outreach Czar? hahahahahahahaha!!!!!!!

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  42. mannning says:

    I hope he has a peanut farm to retire to and stay.

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  43. EddieInCA says:

    @Doug Mataconis:

    @EddieInCA:

    Which would make sense if I was a supporter of George W. Bush. But I’m not.

    It would make more sense if you claimed to not support the policy under Bush, which you didn’t.

    You can support the policy without supporting the person, as you have shown over, and over, and over, and over, and over again on this blog.

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  44. Tsar Nicholas II says:

    Leon Panetta already had established himself as a great Democrat, but with this latest success (the seeds of which clearly were sown while he still was at CIA) he has to be considered among the greatest Democrats of all time. (The one major blemish so far is not putting the kibbosh on the indefensible decision to draw down the Iraq contingent to only 3,000 troops.)

    As for Rambobama, I suspect the adults in charge of things punted him of of the loop as far back as mid-2009. As this latest resounding success involving al-Awlaki demonstrates, however, Rambobama deserves credit for allowing the adults in the room to do their jobs and for staying out of the loop and out of the way.

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  45. Rob in CT says:

    This boils down to whether or not you trust our government – specifically the Executive branch – with this sort of power. I do not, whether it’s “my guy” or not.

    I would have preferred that they tried this guy in absentia, got a conviction, and then – and only then – whacked him (to the extent capture was not feasible, which apparently was the case). I will worry about the implications of this as regards future action.

    That said, isn’t not really any more worthy of outrage than a drone strike in Pakistan that kills a bunch of people + 1 terror suspect, for instance. Or a no-knock drug raid that ends up killing grandpa ’cause he reached for his shotgun.

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