The targeted killing of American-born cleric Anwar al-Awlaki confirms that President Obama is doubling down on George W. Bush's policies, civil libertarians say, presiding over an escalation of presidential power that courts and Congress seem unable to address.
“Barack Obama has appointed himself judge, jury, and executioner,” said Glenn Greenwald, a former civil-rights litigator who writes for Salon.com. Alwaki's killing was essentially “authoritarian,” Greenwald said, carried out “without a shred of due process far from any battlefield.”
“All the standards are secret, all the evidence is secret,” said Jameel Jaffer, a lawyer with the American Civil Liberties Union. “The CIA refuses to even confirm or deny that there is a targeted killing program.”
Alongside Awlaki was another American citizen, Samir Khan, known as the editor of a Qaida magazine. There's been no word from the administration about who else was in the convoy and killed alongside Awlaki and Khan.
Neither White House press secretary Jay Carney speaking to reporters nor Obama, speaking to Michael Smerconish in a radio interview would comment on the operational details behind Awlaki’s death.
Dodging questions from reporters, Carney merely said “it has been well established” that Awlaki was “an active recruiter” who “played a leadership role” in al-Qaida in the Arabian Peninsula.
“We now have an accepted premise of the president assassinating people who he thinks are bad guys,” Rep. Ron Paul, R-Texas, said in comments broadcast on MSNBC on Friday.
Disregard for due process in waging the war on terrorism attracted considerable criticism while Bush was in office. But under Obama, protest has been subdued, and the weakening of constitutional checks and balances on the president has continued unnoticed.
“This is a debate that we’re simply not having,” said Jonathan Turley, professor at George Washington University's law school. Historically, court action has helped protect civil liberties, but the Obama administration “has been blocking all efforts” to question its targeted killing program, Turley said.
Anwar's father sought a federal injunction last year to prevent a targeted killing of his son, but he lost his court case. The Justice Department successfully argued that Nasser al-Awlaki didn't have adequate standing to sue on his son's behalf, and that state secrets would be revealed if the case went forward. The government essentially argued that targeting Anwar al-Awlaki was a political question, outside the realm of the courts, said Jaffer, who represented Nasser al-Awlaki on behalf of the ACLU.
Arguing cases on the basis of standing is a “growing problem” that has stood in the way of judicial review, Turley said. Courts have also been remarkably willing to recognize the state secrets privilege. And the war on terror has stretched what is considered an imminent threat to the nation, as well as what constitutes a terrorist.
Neither Greenwald nor Thurley anticipates Congress will criticize the death of a radical cleric.
“No one wants to seem like they’re defending al-Awlaki,” Turley said. Obama praised Alwaki's death as a major blow to al-Qaida in an address on Thursday.
Democrats who protested the expansion of presidential power under Bush “are now cheering the killing of an American citizen based on the same rationale,” Greenwald said. He doesn’t expect either Obama’s party or the Republicans who supported Bush’s enemy combatant policies to speak out against the latest targeted killing.
Other programs opposed by civil libertarians, such as the administration’s drone strike program and the decision to wage war in Libya without congressional approval, have continued without a sustained congressional backlash, Greenwald noted. He also noted that Obama won the 2009 Nobel Peace Prize.
This article appears in the September 30, 2011 edition of National Journal Daily PM Update.