The Constitutionality of the Killing of Al-Awlaki

As you may have heard, Anwar al-Awlaki was killed by CIA-operated Predator drones in Northern Yemen on Friday.  Al-Awlaki, an American-born citizen who became a top leader of Al-Qaeda, was put on a capture or kill list by President Obama in April of 2010.  He became targeted after a growing number of terrorists cited his sermons as an inspiration for their acts.  Major Nidal Malik Hassan, the perpetrator of the Fort Hood Massacre, had a number of email exchanges with Awlaki.  He was also connected to the underwear bomber as well as numerous other successful and unsuccessful terrorist attacks. 

In the wake of Awlaki's killing, a controversy that has been brewing for some time exploded across internet blogs regarding the constitutionality of this and like killings by the U.S. abroad.  Many liberals and libertarians, most notably lead by Reps. Ron Paul and Dennis Kucinich, have condemned the "assassination" of Awlaki.  On Fox News Paul stated the following:

No one likes these kind of people, but I also like the rule of law and I like our Constitution, that you don't just target people, assassinate them, someone who has not been charged and you have no proof of anything.  So if we want to protect American citizens from that type of justice, we have to be more cautious."

 On the other side of the debate, many conservatives have agreed that the killing of Awlaki was necessary and is within the purview of the executive power under Article II of the Constitution.  John Yoo states this case:

An American citizen who makes the mistake of joining the enemy is not legally inoculated from military attack.  What is important is not whether someone is an alien or a citizen, but whether they are a member of an enemy conducting hostilities against the United States.  Here are three historical pieces of authority:

1.The Civil War.  Every confederate soldier was a U.S. citizen, especially under Lincoln's theory that secession was constitutionally impossible.  If one could not kill American citizens who had joined the enemy without some kind of judicial hearing or due process, the Civil War would have been unwinnable.

2. Ex Parte Quirin (1942), where the Supreme Court upheld the detention, trial, and execution of German saboteurs, one of whom was an American citizen.  The Supreme Court said:  “Citizenship in the United States of an enemy belligerent does not relieve him from the consequences.” One of those consequences, of course, is being subject to attack.  In World War II, many Americans returned to Germany, Italy, or Japan to fight on the side of the Axis.  The courts never required some kind of due process for them.

3. Hamdi v. Rumsfeld (2004), where the Supreme Court upheld the military detention of a Saudi Arabian caught fighting during the Afghanistan invasion of 2001.  The Saudi had happened to be born in Louisiana, but left as an infant.  “A citizen, no less than an alien, can be part of or supporting forces hostile to the United States or coalition partners and engaged in an armed conflict against the United States.”

Andrew McCarthy at National Review Online also makes a lengthy case in support of the killing here and here.

I would definitely count myself on the side of Yoo and McCarthy.  Just looking at it from a standpoint of the social contract theory that underlies the Constitution, it seems to be plainly constitutional.  If government is formed by social contract, as most of the Founders agreed that ours was, that contract extends only to those who consent to join in that contract.  Those who do not join that contract are not entitled to the benefits and security that come along.  Those who renounce their citizenship by openly aiding and abetting enemies of those who formed that contract, are clearly no longer granted the security and safety guaranteed by that contract; they are the ones who willfully negated that contract by their act of war.  And as was said before in an earlier post, there has always been a distinction between lawful and unlawful enemy combatants.

As understood by the Founders, the executive has plenary power in foreign policy.  Numerous presidents have committed troops on the ground and deterred attacks without express authorization by Congress first (although many times Congress has later authorized these types of actions).  It has to be remembered that Congress has the power only to declare war, not make war.  They do, however, have the power to defund military operations, and the president can be impeached should he commit a serious enough offense.  Congress has ample oversight and power should they deem the action of the executive to be unconstitutional in a time of war.

Though the Supreme Court ruled in Boumediene v. Bush that aliens detained as enemy combatants have a constitutional habeus corpus right to challenge their detention, what the Supreme Court says about the Constitution should never be confused with the Constitution itself.  The president has both the right and the duty to argue that while he respects the Court's decision in that particular case, it should not be applied as a principle to all other like cases.  Every branch has the duty of interpreting the Constitution as they understand it.  This was the position of Andrew Jackson, Abraham Lincoln, and the Founders.  It was only in 1958 that the Supreme Court declared themselves the final arbiter of the Constitution; in McCullough v. Maryland, the case often cited as the basis for judicial supremacy, the Court under John Marshall described only the necessary logic of the judicial power itself.   

This all proves, I think, that the killing was both just and constitutional.  An interesting aside is that during the Bush Administration, many future Obama Administration officials and Obama himself declared in numerous speeches the supposed evils of detaining enemy combatants in Guantanamo Bay.  If Bush was shredding the Constitution by detaining enemy combatants without due process, then certainly Obama is lighting the Constitution on fire by targeting a U.S. citizen on foreign soil.  This is what happens when the prudence of the executive office forces itself on those at the helm.