I don’t even have a problem with there not being a judge involved. I do have a problem with a lack of visibility and the decision being unilateral. If it’s really due process then there has to be a process of some kind, and that should be clearly articulated and have some means of check and balance. As it is, it’s arbitrary, and therefore illegal.
“This is an indicator of our times,” Holder argued, “not a departure from our laws and our values.”
The debate over killing Awlaki, whom Holder barely discussed, began long before a Hellfire missile fired from a drone killed him and fellow propagandist Samir Khan in September. Awlaki’s father sued the Obama administration in 2010 to compel it to reveal its legal rationale for the long-telegraphed strike. (Full disclosure: My wife works for the ACLU, which helped Nasser al-Awlaki with his lawsuit.) The administration refused, with a judge’s support.
For months after Awlaki’s killing, the government never disclosed any evidence supporting its decision that Awlaki posed an imminent danger to Americans, beyond his rhetoric of incitement. But during the February sentencing of the “Underwear Bomber,” the government put forward a court filing claiming that Awlaki worked intimately with convicted would-be bomber Umar Farouk Abdulmutallab to blow up Northwest Airlines Flight 253. Holder referred to that connection in his speech.
Several legal scholars have wondered why the U.S. didn’t have to provide Awlaki with due process of law before killing him, as stipulated under the Fifth Amendment. Holder contended that the U.S. actually did — even if no judge ever heard Awlaki’s case.
“The Constitution’s guarantee of due process is ironclad, and it is essential — but, as a recent court decision makes clear,” Holder argued, “it does not require judicial approval before the president may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war — even if that individual happens to be a U.S. citizen.”