For the first time, a U.S. citizen is being targeted for assassination as a terrorist. The Washington Post reports that Anwar al-Awlaqi, the New Mexico-born cleric living in Yemen, has been placed on a target list that makes him fair game for assassination by the U.S. military or CIA. One attempt has already been made, and there are bound to be other efforts to kill Awlaqi, an Al Qaeda activist linked to a Nigerian suicide bomber’s plot to blow up an American airliner last December.
Can a U.S. citizen be assassinated without due process? asks Spencer Ackerman. “If citizenship means anything, it means that a citizen can’t be killed because the government uses secret evidence to say he or she is an intolerable threat,” Ackerman writes. He makes a valid point. The Washington Post says the White House gave special approval to kill Awlaqi. But that’s not the same as due process, though I have no idea what sort of due process would be involved in authorizing the assassination of an American.
This is an issue where legality meets practicality. Practicality will win. It has to. In a perfect world, Anwar al-Awlaqi would be charged with conspiracy to commit murder, a warrant issued for his arrest, and he would be detained by law enforcement. But the Texas Rangers can’t get to Awlaqi amid thousands of heavily armed tribesmen in Yemen. Only Army Rangers can, or a Hellfire missile from a Predator drone. Call it a military strike or a covert assassination. It’s the same thing.
When a police officer shoots an armed robber, there is no due process for the robber. Nonetheless, we usually condone the officer’s action because we accept that there are situations where deadly force must be used without the luxury of a court hearing. It’s true that a premeditated assassination is not the same as a him-or-me confrontation like shooting an armed robber. But where do you draw the line? Would it be okay to send Awlaqi to Paradise on a Hellfire missile if the CIA had evidence that he planning another suicide bombing of an airliner? If Al Qaeda knows that American citizens are exempt from assassination, wouldn’t they try to use more Muslim-Americans in their operations?
One solution would be to charge American citizens engaged in terrorism overseas with treason (for which the penalty is death). But what legal defense could a terrorist offer when he does not and cannot know that he is being charged? We would end up with a Star Chamber that condemns Americans in secret.
Perhaps this is what we already have when the White House authorizes assassinations. But I don’t see any other option. Citizenship has its rights, but not the right to blow up American airliners.