But what we don’t know yet are the answers to all those other questions above, about how this process works and what the constraints on it are. And most importantly, we don’t know the answer to the question raised yesterday by Spencer Ackerman of The Washington Independent: “Why Is It Legal to Kill Anwar al-Awlaki?”
The responses offered to date by the Obama administration and other government agencies are comically feeble, or would be if the matter weren’t so serious. Blair told Congress back in February that the intelligence community would require “specific permission” to kill an American. Officials told the Post this week that adding Awlaki to the CIA list “required special approval from the White House.” Reuters and the Times were a little more specific, noting that approval was required from the National Security Council.
Specific permission, special approval—this amounts to the government saying, “Trust us; we thought really hard about this one.” It seems insufficient, to put it politely, as an explanation for why it is now possible to sweep aside what National Review’s Kevin Williamson aptly calls “a bright line on the political map.” Actually, it seems not so far removed from the sardonic explanation offered by CBS’s legal analyst Andrew Cohen, back in 2002, paraphrased by Chan as: “this is legal because the President and his lawyers say so—it’s not much more complicated than that.” That seemed to be the operating principle for a lot of things around that time, of course, many of which haven’t worked out so well.
Williamson’s post adds another valuable point: the need for more information, and a better understanding of what this policy actually means, is distinct from the question of whether we should be targeting Awlaki. If he is as dangerous as we’re being told—a big if—there are colorable arguments that he should be a target, and perhaps even a target of lethal force. But there is a tremendous risk that in adopting an ad hoc, undefined process to deal with him, as opposed to the broader legal and moral challenge of homegrown terrorism, we are heading into dangerous territory. “Awlaki is an unusual case now, but he may not be in the future,” says Karen Greenberg, executive director of NYU’s Center on Law and Security. Will others be targeted? If not, why not? If there are limits on this power, how will they be maintained? Answers to these questions haven’t been articulated. It’s not even clear that they exist.
We shouldn’t have any delusions about the prospects for Congressional oversight here. We also shouldn’t have any delusions about press miracles in the face of a unified executive branch and a deferential judiciary: Ackerman wrote yesterday that he would be “spending [his] morning filling out FOIAs,” which is absolutely the right thing to do, but also unlikely to yield any short-term success.
But the press can, at the least, maintain pressure on the Obama administration, and make clear its obligation to defend, define, and explain this policy. It’s not an encouraging sign that a day after the stories on the CIA authorization appeared, there was no follow-up coverage in the Times or the Post. Before this becomes the new normal, we need the press—not only the civil libertarians in the blogosphere, and not only some fairly well-known independent reporters like Ackerman, but the news and editorial pages of our few remaining heavyweight institutions—to do its job. That means asking the government, repeatedly: Just what is the Awlaki standard, and why is it consistent with our traditional understandings of the rights of citizenship, the laws of war, and the rule of law?

I have a question: what would happen if Al-Awlaki would manage to sneak into the country, hire a lawyer and turn himself in at the local police station? Also, could some lawyer, with or without Al-Awlaki's permission and in Al-Awlaki's absence, sue the state for violating his civil rights? If so, how would a judge rule on that?
#1 Posted by zeptimius, CJR on Fri 9 Apr 2010 at 09:13 AM
"I am not a crook." was a Nixon lie, and Nixon had an 'enemies list' including Daniel Ellsburg and Martin Luther King Jr.
"Iraq has WMD" was a Bush lie, and a million Iraqis, and thousands of Americans have paid with their lives for this lie. And America will be reviled for hundreds of years for "Shock and Awe".
The Constitution guarantees all citizens "due process". We know this to mean arrest and trial, Habeas Corpus, prohibitions on torture (5th Amendment - testify against self), retain a lawyer, face your accuser, know the evidence against you, a jury of your peers deciding the verdict, and a punishment that is not cruel or unusual. The Constitution defines THIS process as the 'operational definition' of due process, i.e. the 'vetting' actionable intelligence, and no other process is Constitutional.
For the President to arrogate the right to have a personal 'hit squad' that can murder anybody on the President's official 'hit list' is typical of a Mafia gang, and is NOT in compliance with the Constitution's system of 'checks and balances'.
If we can 'disappear' Muslim clerics from the streets of Milan and bring them to secret CIA torture dungeons, we should concentrate on bringing American citizens to the Justice system - before a judge and a jury.
If the President can do this to ONE citizen, future Presidents could do this to ANY citizen.
#2 Posted by privacy please, CJR on Fri 9 Apr 2010 at 05:26 PM
"I am not a crook." was a Nixon lie, .. N O, it was not. there is zero indication that nixon ever cheated anyone or stole (crook) money from anyone or from the american people. democrats onthe other hand, scoop into the till with wild abandon, chicago style. ... and you know it or are blinded by your projections of a pastoral panacea from residtribution.
nixon never benefited, personally (a crook) from his positions.
#3 Posted by Oscar BullFrog, CJR on Sun 11 Apr 2010 at 04:50 AM
If the President can do this to ONE citizen, future Presidents could do this to ANY citizen.
Exactly. If due process can be discarded then there is no due process.
#4 Posted by Don, CJR on Wed 14 Apr 2010 at 02:21 PM
He is an admitted traitor to his country and planning attacks on American soil. His admission makes him guilty of treason. Treason is punishable by death by firing squad. With that said the CIA only needs one bullet and the knowledge of his whereabouts.
#5 Posted by tough, CJR on Thu 13 May 2010 at 03:54 PM