Faced with a lawsuit challenging its right to target an American citizen for killing, the Obama administration is reportedly considering filing criminal charges against Anwar Awlaki, an Al Qaeda propagandist thought to be living in Yemen.
That would be a positive step. But as long as the New Mexico-born Awlaki remains on a "targeted killings" list, civil liberties groups should continue to press the courts to rule on when killing an American located far from a battlefield passes constitutional muster. By definition, those circumstances will be rare: The 5th Amendment says that no person shall be deprived of life without due process of law; the 4th Amendment prohibits unreasonable seizures, which courts have said include the misuse of deadly force.
Those provisions wouldn't prevent U.S. forces from killing a U.S. citizen who engaged in combat against the United States. Awlaki's situation is more complicated. The government believes that he is not only a mouthpiece for Al Qaeda but an operative who has plotted terrorist attacks, including the unsuccessful attempt to bomb an airliner on Christmas Day. But in the absence of an imminent threat, the aim should be to capture Awlaki and return him to the United States.
That may be made easier by a decision to prosecute Awlaki. Some observers argue that Yemen would be more cooperative in searching for Awlaki — and even in turning him over to the United States — if it could point to criminal charges against him and receive assurances that he would receive a fair trial.
Meanwhile, the Obama administration is preparing its response to a lawsuit filed on behalf of Awlaki's father by the American Civil Liberties Union and the Center for Constitutional Rights. The suit asks a court to declare that assassinations can't occur outside armed conflict except as a last resort to protect against "concrete, specific and imminent threats of death or serious physical injury." The groups also request an injunction preventing the killing of Awlaki "outside this narrow context" and demand that the government disclose its current criteria for targeting U.S. citizens for death.
The administration may try to blunt the lawsuit by arguing that litigation would reveal state secrets or that the targeting of Americans is a decision to be made by the executive branch, with no oversight by the judiciary. Neither position is defensible.
It is long past time to argue that the courts have no role in the war against terrorism. Because of the open-ended nature of that conflict, and the fact that terrorism is a crime as well as a tactic, the judiciary has a legitimate place in ensuring that constitutional rights are protected. The administration should accept that principle, even if it means due process for an American who is said to have turned against his country.