But a range of civil libertarians and Muslim-American advocates questioned how the government could take an American citizen’s life based on secret intelligence and without a trial. They said that killing him amounted to summary execution without the due process of law guaranteed by the Constitution.
That's from Scott Shane's "News Analysis" in the New York Times on the killing of Anwar Al-Awlaki and Samir Khan. Really, you can quibble about the language, but you can't argue with the fact, at least not if you're going to be even a little bit honest.
You can argue, of course, about whether it was legal anyway. Shane again:
Robert M. Chesney, a law professor at the University of Texas who specializes in national security law, said he believed that the killings were legal. But he said it was “plenty controversial” among legal specialists, with experts on the left and on the libertarian right deeply opposed to such targeted killings of Americans.
Yeah, those wimpy leftists and rightists. How dare they wrap themselves in the Constitution when we're talking about America and American lives. Dick Cheney understood that obeying the Constitution shouldn't get in the way of defending the country. Obama gets that, too. It's unavoidable. We have to abandon our way of life in order to preserve it. (Cheney and Obama would both probably disagree with the characterization. Tough.)
Of course there are lawyers. There's always a trusted advisor or law professor who'll argue that the Constitution gives the Pres plenary power to do whatever he wants or thinks he needs to.
But they're wrong. As Nixon was.
Even if they can find judges, even if they can find Five Who Decide on the Supreme Court. The Court decided Dred Scott. The Court decided Plessy. The Court decided Korematsu. The Court decided Kelo. The Court decided whatever case you think it got wrong. As Justice Jackson said, concurring in Brown v. Allen,
We are not final because we are infallible, but we are infallible only because we are final.
So here's a couple of things that are true:
- Killing Al-Awlaki and Khan, even if they deserved it and even if it were OK for the government to kill individuals (this is not a post about the death penalty), was unconstitutional.
- Killing Al-Awlaki and Khan, even if it was wise (I've got my views on that, you may have yours), was unconstitutional.
- Killing Al-Awlaki and Khan, even if the President's advisers and lawyers said it was legally permissible, was unconstitutional.
- Killing Al-Awlaki, even if the Supreme Court should someday say otherwise, was unconstitutional.
Nixon was wrong. It's not legal just because the President does it.
Sometimes, of course, it may be worth breaking the law. Sometimes it may even be right. Hell, signing the Declaration of Independence was an act of treason.
But the signers of the Declaration didn't pretend that they were obeying British law. They owned up to what they were doing.
When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
So here's my humble suggestion.
Mr. President: If you're going to engage in extrajudicial killing, and clearly you are, don't pretend that the law authorizes it. Here's how your speech should begin.
Today, as yesterday and the day before that and the day before that, on my orders and authorization, the military and the Department of Homeland Security and the Justice Department and the Treasury Department,and the State Department and probably the fucking Postmaster General violated the Constitution. They'll all do it again tomorrow. And next month.
Then you can list all the ways.
And you can try to explain why.
My guess, and I dearly hope my guess is wrong, is that most people would think it was fine.
Because, as Scott Greenfield would say with more than a touch of irony, you did it for the children.