With Osama bin Laden's death dominating headlines, the fact that Team Obama tried to carry out another war on terrorism killing last week didn't attract much attention. But it ought to be big news that one of our drones fired a missile at a compound in Yemen in a failed attempt to kill suspected terrorist Anwar al-Awlaki, an American citizen living far from any battlefield.
Let's assume for the sake of argument that this man is guilty of a despicable treason against the U.S.A. Glenn Greenwald reminds us what the Fifth Amendment demands: "No person shall be held to answer for a capital, or otherwise infamous, crime unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger ... nor be deprived of life, liberty, or property, without due process of law." The Constitution assigns treason to the judicial branch and states that "no Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." We're now skipping the grand jury and the due process. (Last year, The New York Times quoted a senior legal official in the Bush administration as saying he did not know of any American ever being put on an assassination list on its watch.)
To be clear, no one would expect the Obama administration to arrest this man were he engaged in a firefight with U.S. forces in Iraq, Afghanistan, or that Pakistani compound where bin Laden was hiding. The problem with the Obama administration is that it proposes to extend the logic of the battlefield to the entire globe for a war of indefinite length against a difficult-to-identify enemy.
That is why civil libertarians are objecting. As the ACLU puts it:
Outside armed-conflict zones, the use of lethal force by the United States is strictly limited by international law and, at least in some circumstances, the Constitution. These laws permit lethal force to be used only as a last resort and only to prevent imminent attacks that are likely to cause death or serious physical injury. Such a program of long-premeditated and bureaucratized killing is plainly not limited to targeting genuinely imminent threats. Any such program is far more sweeping than the law allows and raises grave constitutional and human-rights concerns.
As of last year, there were three American citizens in addition to al-Awlaki on the Obama administration's assassination list. Who are they? What is the evidence against them? Have they already been killed? Have any other names been added to the list? Have a hundred other names been added? It's impossible to know for sure, because President Obama insists he has no obligation to answer these questions. He claims not just the power to kill but to do so in secret on no authority but his own.
In the criminal-justice system, the government is required to be transparent about its facts, all evidence is shared with the defense, the accused is guaranteed the right to counsel, an impartial jury is selected, and the standard for a conviction is "beyond a reasonable doubt." Despite these safeguards, the Innocence Project estimates that between 2.3 percent and 5 percent of all American prisoners are innocent. During the Bush administration, Vice President Dick Cheney assured us that the folks held at Guantanamo Bay, Cuba, were "the worst of the worst." As it turned out, however, a lot of them were actually innocent.
Even if no U.S. president ever intentionally abused the power to order the secret assassination of his fellow citizens--and is any power more corrupting than the ability to kill whomever you like in secret?--it is folly to imagine that innocents won't be assassinated under this policy, if only accidentally, should it go on for very long. That is what happens when checks and balances are abandoned, oversight is eschewed, and citizens are stripped of their rights without due process. And if this power was abused? It is difficult to imagine a more horrific scenario than the constitutional crisis that would result from a president murdering while asserting impunity.
You'd think the folks on the right who insist that Obama has no regard for basic liberties, and the folks on the left surveying a GOP field that could theoretically include Donald Trump and Sarah Palin, would unite in opposition to unilaterally ordered, unchallengeable secret assassinations.
When the presidential assassination list came to light, it garnered some criticism. That has now mostly faded, even though we're witnessing an unprecedented assertion of executive power--one that has obvious potential for the worst kinds of abuses. It has become our new normal. Are we going to get through a presidential election without any significant challenge to Obama on this?