The lack of adversarial opinion for a 2011 drone strike on Anwar Al Awlaki could presage the killing of U.S. citizens in America
When U.S. Pres. Barack Obama considered the unprecedented step of intentionally killing an American citizen without judicial process, he asked for a legal opinion that would provide legal cover in case he was accused of a war crime.
Unfortunately, he did not ask for two opinions, one providing authority for killing a citizen and the other why it would be illegal, or at least we have no evidence for an opposing legal position. His request raises an interesting question — under what circumstances is it legal to kill an American citizen without due process?
Virtually all jurisdictions define “murder” as the “unlawful killing of a human being.” The operative word here is “unlawful.” If someone goes into a building on a shooting spree, no time exists for a warrant, a hearing or a trial.
Killing someone on a shooting spree would be a lawful killing because no time exists for a constitutionally-mandated legal process. Under these conditions, killing the shooter, regardless of his or her citizenship, is legal.
Obama’s request was for a similar legal justification. In this case, that killing radical preacher Anwar Al Awlaki would be a lawful killing. Then Attorney General Eric Holder supplied the 97-page legal memorandum, generated 14 months prior to the successful September 2011 assassination of Awlaki, who the U.S. government accused of being a key figure in Al Qaeda’s recruitment efforts.
The legal memorandum was designed to satisfy the president that killing Awlaki without a trial, without judicial process, and with the only “due process” coming from a handful of bureaucrats from the executive branch, would make it legal. In the process, Obama violated one of the fundamental premises in the Anglo-American legal system, one honed by centuries of precedent — the belief that through adversarial proceedings, the truth will emerge.
Obama did not ask for a rebuttal memorandum (or if he did, he never shared it), one offering countervailing considerations and containing opposing points of view — a memorandum that would indicate he had been fully briefed from all perspectives, an opinion that might have made him reach a different conclusion.
Since Obama appears to have asked for only one point of view, he did not have the benefit of hearing a contrarian legal perspective. So here is a non-lawyer’s attempt to show why he should not have killed Awlaki.
Read the Remainder at War is Boring