I’m sorry to disappoint some of my fellow liberals, but I can’t go all the way with the ACLU on this one:
“Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact,” said Hina Shamsi, director of the ACLU’s National Security Project.
“Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power,” she said.
The ACLU is suing the Obama administration, seeking to have documents regarding the targeted killing program made public.
It’s not that I “trust President Obama,” as much as it is that, as Eric Holder said,
The Constitution does not require the president to delay action until some theoretical end stage of planning, when the precise time, place, and manner of an attack become clear.
Look, the ACLU is right to raise questions and seek a public debate. And I admit that this whole thing makes me uncomfortable. But so too would the prospect of allowing someone like U.S. citizen Anwar al Awlaki—leader of Yemen’s al-Qaeda who was killed in a drone strike last September—to plot terrorist attacks with impunity in some faraway land and live to tell about his successes. Al-Qaeda, after all, is at war with us and we with it.
NBC’s Pete Williams characterized Attorney General Eric Holder’s position this way:
The Fifth Amendment provides that no one can be “deprived of life” without due process of law. But that due process, Holder said, doesn’t necessarily come from a court.
“Due process and judicial process are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process,” the attorney general said.
Holder said a U.S. citizen can legally be targeted in a foreign country if that person is “a senior leader of al-Qaida or associated forces,” and is actively involved in planning to kill Americans. Killing would be justified if the person poses an imminent threat of a violent attack against the U.S. and cannot easily be captured.
The key phrase here is “in a foreign country.” The expedient of obtaining a search warrant and the necessity of safeguarding other civil rights are not practical in such situations and the Constitution should not hamstring the government to such an extent that it cannot act to protect Americans from terrorists, even if the terrorists happen to be U.S. citizens living and plotting abroad.
Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a U.S. citizen terrorist who presents an imminent threat of violent attack. In that case, our government has the clear authority to defend the United States with lethal force.
The one caveat I would offer, I’m assuming in line with at least some civil libertarians, would be that the action should be reviewable after the fact by a special court that could examine classified documents, that court applying some rule of reason in determining if the authorities initiating the action acted prudently and judiciously and within the laws of war.