Targeting an American

Anyone who is still not sure whether Anwar Awlaki is a bitter, fulminating, implacable enemy of the United States should check out the video posted online Monday. In it, the U.S.-born radical Islamic cleric urges his followers to kill Americans even when there is no religious fatwa in place calling on them to do so.

“Don’t consult with anybody in killing the Americans,” Awlaki says. “Fighting the devil doesn’t require consultation or prayers seeking divine guidance.”

Not only is he repugnant, but he’s dangerous too, according to U.S. officials. Born in New Mexico but now hiding in Yemen, Awlaki is believed to be an increasingly important leader of the organization Al Qaeda in the Arabian Peninsula, and is said to have played an “operational” role in several terrorist plots, including the attempted Christmas Day bombing of a Northwest Airlines flight bound for Detroit last year.

We have no reason to doubt the government’s assertions. But the question facing Americans today is not whether Awlaki is a bad guy — it is how far the United States government is entitled to go in its efforts to stop him.

Indeed, on the same day the Awlaki video went public, U.S. officials were appearing in federal court in Washington to defend the widely reported decision to put Awlaki’s name on a “targeted killings” list. By most accounts, that list authorizes the CIA or the military to track down Awlaki and kill him at any time without any judicial review, despite the fact that he is an American citizen apparently residing far outside of a war zone.

The American Civil Liberties Union and the Center for Constitutional Rights, acting on behalf of Awlaki’s father, have challenged the notion that the government can kill anyone anywhere. They reminded the court of the Constitution’s guarantee that no person shall be deprived of life, liberty or property without due process of law. “If the 4th and 5th Amendments mean anything at all, surely they mean there are limits to the government’s power to use force against its own citizens,” argued the ACLU’s Jameel Jaffer. Judge John D. Bates questioned why the government is required to obtain a court warrant to eavesdrop on an American overseas but not to kill one.

The Obama administration, for its part, did its best at Monday’s hearing to have the case dismissed on procedural grounds, and it may well succeed. Justice Department lawyers argued, for example, that Awlaki’s father didn’t have legal standing to sue on behalf of his son. The lawyers also argued that the case involves such sensitive national security secrets that the proceedings should not be allowed to go forward. More substantively, they argued that terrorist activities in Yemen do, in fact, fall within the war on terror’s combat zone, and that targeted killings are covered by the congressional authorization for the use of force approved after 9/11. They also argued that there is no basis in “law, logic or history” for permitting courts to issue binding directives to the president before military action is taken in a case involving “complex and time-sensitive determinations” about terrorism.

Maybe so. It is certainly true that presidents need to be allowed to fight wars without having their hands tied unreasonably. Nevertheless, the government owes its citizens answers to some deeply troubling underlying questions. The Obama administration should explain why it needs to draw up what are, in effect, death lists, and why it needs to authorize extrajudicial assassinations of the sort Americans have always considered a grave violation of human rights when undertaken by other countries. International law says that lethal force may be used in peacetime only to counter an imminent attack and only as a last resort; have those standards been met in this case? If the war zone is really going to be extended all the way to Yemen, what will be the consequences of such a loose interpretation? What are the government’s arguments against judicial review?

There is absolutely no moral equivalence to be drawn between an alleged terrorist such as Awlaki and the U.S. government as it engages in its ongoing war against terrorism; to claim otherwise would be a perversion of logic and reason. But still, it was hard not to see a strange symmetry between Awlaki’s videotaped argument that killing is acceptable even in the absence of a religious fatwa, and the U.S. government’s argument that killing is acceptable without oversight or due process.

One obvious difference between the United States and Al Qaeda in the Arabian Peninsula is that in this country, we live under the rule of law, and we must hold ourselves to the standards we have set even when it is inconvenient, difficult or dangerous to do so.