The notion that the government can, in effect, execute one of its own citizens far from a combat zone, with no judicial process and based on secret intelligence, makes some legal authorities deeply uneasy.
Some? Uneasy? Interestingly, Shane doesn’t bother to interview the “authorities” on human rights law and constitutional law who would be most “deeply uneasy” about these acts – experts at Human Rights Watch, the ACLU, or (say) New York University School of Law’s Project on Extrajudicial Executions. Instead he interviews – wait for it! – CIA lawyers and counter-terrorism officials, concluding with their last, fear-mongering words on the topic. And when describing the evidence to counter their positions, he treats such sources as The US Constitution as simply documents on one side of a debate:
Most significantly, he is an American, born in New Mexico, arguably protected by the Fifth Amendment’s guarantee not to be “deprived of life, liberty, or property, without due process of law.”
Arguably? When precisely is any US citizen not protected by the Fifth’ Amendment?
For someone covering a “legal debate,” Shane also seems terribly confused about international humanitarian law:
In a traditional war, anyone allied with the enemy, regardless of citizenship, is a legitimate target; German-Americans who fought with the Nazis in World War II were given no special treatment.
Here Shane confuses armed fighters engaged in hostilities alongside enemy forces (indeed lawful targets in conventional war) with civilians “allied” with the enemy. Since al-Awlaki’s role in the jihadist movement is primarily propagandist and inspirational, the closest WW2 analogy to al-Awlaki would be a US citizen who spoke out in favor of Nazi Germany during World War II or attempted to incite his or her countrymen to support the Nazi cause. Such individuals might be captured and detained or even tried for conspiracy or treason, but they’re not “combatants” in the legal sense and wouldn’t be “lawful targets” under the laws of war unless they were directly participating in hostilities.
It’s not just this one poorly researched article that misses the mark in fleshing out the parameters of the “debate” over whether a government can legally execute its citizens outside of a judicial process. Reactions to US plans to kill Anwar al-Awlaki without trial have paid much too little attention to the civil liberties implications of the policy. For example, Newsweek’s coverage last month focused on whether this will be an effective strategy or do more harm than good in combatting terror; BBC’s framed “the debate” in terms of the effects on stability in Yemen, rather than civil liberties at home. And as Julian Ku has noted way back in February, even the lefty blogs and commentators have been mostly silent on the constitutionality of summarily executing American citizens. Judging by the absence of attention to this issue on KO this past weekend, this pattern doesn’t seem to be changing.