Extrajudicial Killing of American Citizens: What Are the Limits?

The Obama administration's desire to suspend Miranda warnings for terrorism suspects seems pretty minor today, as the administration has now announced that it is willing to order extrajudicial killings of American citizens. (This is somewhat old news, but it's difficult to keep up with all of these presidential innovations.) Anwar Al-Awlaki is an American citizen living in Yemen (and American-born as well, which matters politically, though it shouldn't).

The argument for this decision basically comes down to: “American citizenship doesn’t give you carte blanche to wage war against your own country. If you cast your lot with its enemies, you may well share their fate.”

The problem, again, is that apparently the executive also gets to decide what counts as "waging war" and what does not, without much input from the other two branches (which, in days of yore, were also considered to have a role in the wartime decision-making apparatus). There is no judicial oversight whatsoever here, nor any set procedure to be sure that the citizen is actually waging war against the U.S. From the NYT article: “Congress has protected Awlaki’s cellphone calls,” said Vicki Divoll, a former C.I.A. lawyer who now teaches at the United States Naval Academy. “But it has not provided any protections for his life. That makes no sense.” And who can say if administrative oversight in the CIA, not an organization known for public transparency or accountability, is adequate?

Awlaki's seems like an easy case as far as guilt goes (though those of many suspects do) -- he has clearly "cast his lot with America's enemies." Future cases might not be so easy, and judicial oversight or mandated congressional procedures based on constitutional rights will be sorely missed. The erosion of civil liberties (although, really, it seems parochial to use that term to refer to such a severe "deprivation" thereof) takes place piecemeal, via cases likely to garnish a good amount of public support, like this one. But it is precisely at these times that we should certify the limits of executive power.

The administration's arguments here do not foreclose the possibility of ordering the CIA to kill an American suspected of "waging war" while he's in Dallas or Chicago. They also don't foreclose allowing the CIA to delegate responsibilities to other law enforcement agencies (and who knows how the factfinding process even worked). And after all, the War on Terror is no traditional war, and we all know that that has led to major "innovations" in the government's prosecution of it. As the government turns wartime tactics, whether surveillance or actual killing, onto American citizens, the War on Terror becomes increasingly indistinguishable from the War on Crime. But it's now far less assailed by the kinds of criticisms from the mainstream American left than it was during the Bush era.