Anwar Al-Awlaki was a Yemen-based Al-Qaeda cleric, behind several anti-U.S. terror plots, recently killed by a U.S. drone strike.
I previously wrote approvingly of bin Laden’s killing. Awlaki likewise deserved death, and I am glad he got it.
But unlike bin Laden, who as an enemy was a fair target under rules of war, Awlaki was a U.S. citizen. Ron Paul attacks this killing as contrary to law and the Constitution and, indeed, an impeachable offense on Obama’s part. I applaud Ron Paul for this forthright and principled stance.
Awlaki committed crimes, but under the rule of law, the President cannot act as judge, jury, and executioner. For Awlaki to have been tried, convicted, and executed would have been justice. For the President to simply order him killed is problematic.
It’s a fundamental concept (too little understood) that legal protections like the Fifth Amendment and other such rights do not exist in order to protect criminals; they exist to protect everyone. If the President can order the killing of Awlaki on his say-so, what’s to stop him from killing you? (Or, more important, me.) True, he had good reasons to kill Awlaki. But there’s no process here for determining whether the President had good reasons, bad reasons, or no reasons. In our system, no citizen’s life, liberty, or property can be taken without due process of law. Citizen Awlaki got no due process — no opportunity to challenge in court the missile that obliterated him.
News reports say the President relied on a legal memorandum advising that if capturing Awlaki was not possible, then he could be killed. As a lawyer, I don’t buy it. There is no footnote in the Constitution saying its provisions can be ignored if they stand in the way of justice. Indeed, the whole point is that the Constitutional protections embody our nation’s conception of what justice is.
Rule of law is fundamental to our way of life. It goes back to the Social Contract: in order to protect us from each other, we establish law, and empower government as the enforcer. To prevent the arbitrary use of that power, government itself is subject to law. In earlier times, rulers did have arbitrary power, over life and death. Rule of law evolved to stop that. Obama’s killing of Awlaki can be seen as a throwback to arbitrary royal power.
Now, having made what I hope is an eloquent argument, I will Talmudically put the other side.
Much as I am a libertarian wary of governmental power in general, and much as I venerate rule of law, life is complex, there are competing values, and the difficult moral dilemmas involve not right against wrong but right against right. Rule of law is a very important thing, but it is not everything. Society does not exist to uphold rule of law; rather, rule of law is a tool to be used. As has been said (attributed to Lincoln), the Constitution is not a suicide pact.
When George W. Bush declared the “War on Terror” many on the Left thought this was overboard; that it wasn’t war, it was a law enforcement matter. The “war” language may indeed have been inflated, but the “law enforcement” conception was correspondingly inadequate. The truth lies somewhere in between; the problem has aspects of both. And this is exemplified in the case of Awlaki. While it can be argued (as I have done) that he was an American citizen entitled to legal due process, on the other hand he was acting as a military enemy in war. And America – according to widely acknowledged principles of international law — has a self-defense right to kill military enemies in war.
I have said that if Obama can order Awlaki’s death, he can order yours, or mine. Yet we know this is not really true. It would be true in a polity ruled by an unaccountable monarch. In 16th century Italy I would fear death at the ruler’s arbitrary whim. In 21st century America I have no such fear, because the overall societal context is entirely different. In our political, legal, and societal environment, that the President might feel justified in killing an Awlaki most certainly does not imply he can kill anyone for any reason or none.
I would not suggest that Awlaki’s killing was the only example, ever, of American government violating its proper bounds. (Don’t get me started!) And yet, in the bigger picture, the ethos of democratic accountability and rule of law is so strong overall that the system can actually tolerate some corner-cutting like the Awlaki killing. This is especially true when the lapse is not occasioned by venal purposes (as, for example, in the case of Nixon’s abuses of power – which, of course, our legal and political systems were able to handle appropriately). Obama’s killing of Awlaki, in contrast, reflected careful weighing of the national interest, and I’m sufficiently uncynical as to believe that in cases like this, in America, nothing else could have been possible.
If something like the killing of Awlaki were done by a Putin, or Assad, or Khamenei, it would be heinous. And they have in fact done such things. They have been vile because they were manifestations of arbitrary power in societies where such crimes are not the rare exception but the rule — and because the targets tend to be not bad people like Awlaki, but very much the opposite. Call me a starry-eyed idealist but, again, I believe that kind of outrage is unthinkable in America. For all my antipathy toward government in general (and my dissatisfaction with President Obama in particular), I love America enough, and trust America enough, that if our president determined that killing Awlaki was an appropriate decision, then I will give it the benefit of the doubt and, balancing all the considerations, my approbation.