After almost two weeks of editorial silence, the New York Times has at last offered its opinion concerning the openly proclaimed and officially celebrated extrajudicial killing of an American citizen on Sept. 30, 2011, without the due process guaranteed by the U.S. Constitution's Fifth Amendment.  --  The editorial in Wednesday's Times began with some faint praise for the Obama administration for having "apparently spent months considering the legal implications."[1]  --  But that was just about the only positive thing the Times had to say about the administration's decision-making process.  --  It called the position the administration reached an "insufficient foundation for a momentous decision."  --  The Times objected to (1) the refusal of the administration to make its reasoning public; (2) the setting aside of Awlaki's right to due process without any input from outside the executive branch; (3) a failure to make public any evidence supporting its claim that Awlaki was involved in the planning terrorist attacks; and (4) its apparent failure to analyze the "quality of the evidence" against Awlaki.  --  Due process, the Times said, amounts to "more than a military risk analysis."  --  Its editorial argued that due process "requires unambiguous and public guidelines for how the United States will follow federal and international law in approving targeted killings, particularly of Americans.  And it means taking the decision beyond the executive echo chamber."  --  COMMENT:  Though the Times didn't say so explicitly, it follows from its reasoning that Awlaki was executed without due process, and that his killing was an unconstitutional act grounded solely in Staatsräson.  --  That is, it was a crime.  --  It was a crime of the most serious sort.  --  Given the history of the relation of the Times to state power, it's hard to be surprised that it ignored the problem of accountablility.  --  But what are we to think of a constitutional republic in which a newspaper widely regarded as a defender of civil liberties does not condemn outright an unjustified extrajudicial murder publicly announced by the president?  --  Wednesday's New York Times editorial is further evidence, were any further evidence needed, in favor of Mark Danner's view, argued recently in the New York Review of Books, that the United States is now in a "State of Exception" in which the U.S. Constitution, which is supposed to be according to Article VI, the "supreme Law of the Land," has been suspended....




New York Times

October 12, 2011 (posted Oct. 11)

The Obama administration apparently spent months considering the legal implications of targeting Anwar al-Awlaki, the American citizen who was killed in Yemen last month after being accused of being a terrorist organizer.  It prepared a detailed and cautious memorandum to justify the decision -- a refreshing change from the reckless legal thinking of the Bush administration, which rationalized torture, claimed unlimited presidential powers, and drove the country’s fight against terrorists off the rails.

But the memo, as reported by Charlie Savage in the Times, is an insufficient foundation for a momentous decision by the government to kill one of its own citizens, no matter how dangerous a threat he was believed to be. For one thing, the administration has refused to make it public or even acknowledge its existence. It was described to Mr. Savage by anonymous officials, and the administration will not openly discuss even its most basic guidelines for choosing assassination targets.

The decision to kill Mr. Awlaki was made entirely within the executive branch.  The memo was not shared with Congress, nor did any independent judge or panel of judges pass judgment.  The administration set aside Mr. Awlaki’s rights to due process.

President Obama said Mr. Awlaki, a radical Muslim cleric, had taken “the lead role in planning and directing the efforts to murder innocent Americans.”  The administration said he inspired several planned terrorist attacks, including the attempt to blow up a Detroit-bound airliner on Dec. 25, 2009.  (Testimony in the trial of the accused bomber began on Tuesday.)  Officials have said Mr. Awlaki’s role went beyond inspiration into operational planning of attacks, though they have not supplied proof of that.  If the White House would release the evidence it has to back up these claims, it would have a better chance of justifying the cleric’s death.

The memo, prepared by two lawyers in the Justice Department’s Office of Legal Counsel, said Mr. Awlaki could be killed because he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, but it stopped short of analyzing the quality of the evidence.  It said joining an enemy force deprived him of a citizen’s due process rights, citing several Supreme Court rulings that put the protection of innocent lives above the risk of possible death of a suspect.

Mr. Awlaki was not entitled to full protections -- an open-court trial in absentia would have been time-wasting and impractical -- but as an American, he was entitled to some.  The memo said Mr. Awlaki should be captured if feasible -- an important principle, even though the government did not believe it could safely put commandos in Yemen to capture him.

Due process means more than a military risk analysis.  It requires unambiguous and public guidelines for how the United States will follow federal and international law in approving targeted killings, particularly of Americans.  And it means taking the decision beyond the executive echo chamber.  We have argued that judicial review is required, perhaps a closed-door court similar to the Foreign Intelligence Surveillance Court, before anyone, especially a citizen, is placed on an assassination list.

The Obama administration seems to know that antiterrorist operations do not escape the rule of law.  Its case would be far stronger if it would say so, out loud.