Should a federal court have any say over whether a U.S. citizen can be targeted for killing by his own government without due process of law? The Obama administration has submitted a lengthy document to a federal court that can be summed up in one disappointing word: No.
The Justice Department's attempt to keep the courts out of the case of Anwar Awlaki, an Al Qaeda propagandist thought to be hiding in Yemen, is reminiscent of the Bush administration's aversion to any meaningful involvement by the courts in the war on terror. The judiciary shouldn't agree to be sidelined.
It has been widely reported that Awlaki, a U.S. citizen, is on a "targeted killings" list. In its filing with a federal District Court, the Justice Department insists that Awlaki is more than simply a mouthpiece for Al Qaeda. Citing a statement by James R. Clapper, the director of national intelligence, the department argues that since late 2009 Awlaki has "taken on an increasingly operational role" in the group Al Qaeda in the Arabian Peninsula, including preparing Umar Farouk Abdulmutallab to detonate an explosive device aboard a Northwest Airlines plane last Christmas.
We have no reason to doubt that characterization of Awlaki. But before the government begins targeting its own citizens for assassination far from a combat zone, it should, at the very least, have to explain to a court why such an extraordinary step doesn't violate the Constitution, which promises that no person shall be deprived of life, liberty or property without due process of law. In a pending lawsuit, Awlaki's father asks the court to rule that his son can't be killed outside armed conflict "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 that could reasonably be employed to neutralize the threat."
In response, the Justice Department sprays the court with a variety of legal arguments to have the case thrown out. For example: Awlaki's father lacks standing to sue because Awlaki himself could have access to the courts if he surrendered. Here's another: Proceeding would involve the judiciary in "political questions" reserved to the president and his advisors.
And if the court doesn't accept these and other arguments, the administration says it will invoke the much-abused "state secrets privilege" to stop the litigation.
We don't underestimate the problems that would be created if the judiciary intervened in the day-to-day national security decisions of the president, the armed forces or the CIA. But that is not what is being proposed here. Assassinating a U.S. citizen away from a battlefield is such a momentous step that the administration should have to justify its reasoning, in secret if necessary, to a court of law.