Punting on Awlaki?

A federal judge conceded Tuesday that the case of Anwar Awlaki, the American citizen (and Al Qaeda operative) who has been targeted for killing by the U.S. government, raises “stark and compelling questions.” Nevertheless, U.S. District Judge John Bates dismissed a lawsuit brought by Awlaki’s father aiming to prevent his son’s assassination.

The judge’s ruling was based on two points. One was that Awlaki’s father lacked standing to sue, partly because there was nothing preventing Awlaki from surrendering and filing suit himself. The judge’s other finding was that the determination as to whether the U.S. government has the right to assassinate Awlaki was a “political question” best left to the president, who has access to intelligence data.

Whatever one thinks of these conclusions — and we find the judge’s ruling on standing unpersuasive — this decision is only the latest case in which procedural roadblocks have prevented judicial scrutiny of questionable tactics in the fight against terrorism. From the apparently mistaken “extraordinary rendition” of several misidentified terrorists to foreign prisons to the mass arrest of Muslim men after 9/11, victims of an overzealous U.S. government have repeatedly been denied their day in court.

Awlaki, who was born in New Mexico but is believed to be in Yemen, obviously is a less sympathetic figure. According to the Justice Department, he has “taken on an increasingly operational role” in the group Al Qaeda in the Arabian Peninsula. But even if that characterization is true, does that mean the U.S. may target him for assassination?

Lawyers for Awlaki’s father suggested that the United States may not simply assassinate an American citizen outside a war zone “unless he is found to present a concrete, specific and imminent threat to life or physical safety, and there are no means other than lethal force” to neutralize the threat. Had Bates endorsed that test, significant restrictions would have been placed on the government’s ability to target U.S. citizens without due process.

In refusing to adopt that (or any) standard, Bates said that the issues raised by the case “must await another day or another (nonjudicial) forum.” If Awlaki’s father appeals, he will have “another day” in an appeals court. If the court system continues to refuse to address this issue, Congress will have to act. Unfortunately, Congress has in recent years been excessively deferential to the president on terrorism-related issues.

Anwar Awlaki is a despicable figure who should be indicted for treason and, if captured, brought to justice in a U.S. courtroom. But the notion of taking his life without due process is worth a strenuous examination by a court of law. In refusing to conduct such an inquiry, Bates abdicated his responsibility.