The Spectacle Blog

The Awlaki Precedent

By on 9.30.11 | 4:47PM

Gary Johnson says in a statement on the killing of Anwar al-Awlaki:

I understand that laws may allow these decisions by the President and other officials in regard to al-Awlaki, and I do not in any way want to diminish the skill and dedication of our CIA and military. But, at the same time, it must not be overlooked - and thoughtfully examined - that our government targeted a U.S. citizen for death, and carried out that sentence on foreign soil. To my knowledge, that is a first, and a precedent that raises serious questions...

The world is very likely a better place without al-Awlaki in it, but let us not neglect to ask the tough questions this attack raises and about the laws that allowed it to be carried out.

Ron Paul has a much more intemperate reaction, while Mitt Romney and Rick Perry offer praise for the operation. But let's take the opportunity to discuss those tough question that Johnson raises.

Anwar al-Awlaki was actively recruiting terrorists to attack the U.S. He was, in effect, a battlefield commander, and the operation to kill him was in that sense well-grounded in the laws of war -- little different from Operation Vengeance, in which the US military targeted and killed Admiral Isoroku Yamamoto during World War II. If Yamamoto had been an American-born traitor, Operation Vengeance would have been no less legitimate.

The difference, of course, is the nature of the war we're in. There will be no Gyokuon-hōsō from al-Qaeda's leadership officially ending hostilities. The power of the president to issue a kill order is extraordinary because it is open-ended. Under the circumstances, the ability to apply that power to an American citizen is indeed troubling.

It is also necessary. To forgo the opportunity to target a figure like Awlaki would be to abdicate the federal government's responsibility to provide for the common defense. So how do we handle this dilemma? Congress might consider passing a law requiring the targeting of a U.S. citizen to be approved by some independent body, perhaps composed of Article III judges with lifetime tenure. More broadly, the president's extaordinary powers (which are currently derived from the Authorization for the Use of Military Force passed on September 14, 2001) should be established under a legal authority that includes more formal oversight and sunset clauses to trigger periodic debate over whether such powers remain necessary as the years pass. Eli Lake sketched these ideas out a bit more in an excellent feature for Reason last year.

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