CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, September 30, 2011

"American Strike on American Target Revives Contentious Constitutional Issue"

From the New York Times:

WASHINGTON — The reported killing of Anwar al-Awlaki on Friday, an American citizen hit by a missile fired from a drone operated by his own government, instantly reignited a difficult debate over terrorism, civil liberties and the law.

. . .

Some civil libertarians questioned how the government could take an American citizen’s life based on murky intelligence and without an investigation or trial, claiming that hunting and killing him would amount to summary execution without the due process of law guaranteed by the Constitution.

. . .

Robert M. Chesney, a law professor at the University of Texas who specializes in national security law, said he believed the killing was legal. But he said it was “plenty controversial” among legal specialists, with experts on the left and on the libertarian right who are deeply opposed to targeted killings of Americans.

The administration’s legal argument in the case of Mr. Awlaki, Mr. Chesney said, appears to have three elements: First, Mr. Awlaki posed an imminent threat to the lives of Americans; second, he was fighting with the enemy in the armed conflict; and third, there was no feasible way to arrest him.

But critics note that the Fifth Amendment to the Constitution states that no American shall be “deprived of life, liberty, or property, without due process of law.” In ordinary circumstances, that requires a trial and conviction before government officials can order the execution of an American.

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