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Killing of Al-Awlaki: Even When Trying to Fight Terrorism, the President Must Still Follow the Constitution

Josh Bell,
Former Senior Communications Strategist, Center for Democracy,
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October 7, 2011

The debate over the U.S. government’s targeted killing of Anwar Al-Awlaki continued this week. ACLU Deputy Legal Director Jameel Jaffer took on former Bush lawyer (and torture memo writer) John Yoo on Southern California Public Radio’s AirTalk (listen here), and also explored the issue on CBC’s The Current (listen here).

Much of the debate thus far has focused on Al-Awlaki. But we should be thinking about not only the people the government killed last week, but the power that’s being claimed by the president – and the administration has not said nearly enough about the power President Obama is claiming. No one is asking for the government to reveal confidential sources or intelligence-gathering methods – but why can’t it even explain its legal justification for essentially executing an American?

Reuters reported on the process, revealing virtually all that’s known about it:

American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.

There is no public record of the operations or decisions of the panel, which is a subset of the White House’s National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.

This is not the kind of information that should be public only because it was leaked to a reporter by anonymous government officials. But what it does show is the other disturbing aspect of what happened: the executive branch acting without oversight by other branches. The Constitution made the judiciary a co-equal branch of government so that there would be a check against overreach by the political branches. Obviously the judiciary is not playing that role here.

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