Writing today about the drone strike that killed Anwar al-Awlaki, Max Boot casually dismisses concerns about the president's authority to target U.S. citizens for execution:
A few civil libertarians are raising questions about whether the U.S. government had the right to kill an American citizen without a trial....That's like asking if it was lawful to kill Confederate soldiers at Gettysburg. Like the rebels during the Civil War, Awlaki and Khan gave up the benefits of American citizenship by taking up arms against their country. They, and other Al Qaeda members, claim to be "soldiers" in the army of Allah; it is only fitting that their avowed enemy, the Great Satan, would take their protestations seriously and treat them just like enemy soldiers. If it's lawful to drop a missile on a Saudi or Egyptian member of Al Qaeda, it's hard to see why an American citizen should be exempt.
I've heard this argument more than once, and I'd just like to point out how chilling it is. One of the reasons that liberal democracies constrain the use of force against their own citizens more than they do against noncitizens is because national governments have a very wide array of coercive powers already available to track and control their own citizens. Since this coercive power is inherent in the state, it's wise to restrain it lest it get out of control. Likewise, national governments don't generally need to execute their own citizens without trial because they have lots of other alternatives available to them. At a practical level, they often don't have this power over noncitizens, so killing them is sometimes the only option available.
But this distinction also applies to location: national governments have far more police power available within their own territory than they do overseas. In Awlaki's case, you might argue that if he had been living in, say, South Dakota, the government would have been constrained from killing him without trial because it has the power to deal with him judicially instead. But since he was living in Yemen, it didn't, and a targeted assassination was the only option open.
But Boot isn't willing to concede even that. The Civil War analogy suggests that even if Awlaki had been living within the United States he would have been fair game for a presidential assassination merely for belonging to a group that calls itself an offshoot of al-Qaeda.
In fact, I doubt that Boot believes this. He does not, in truth, think that President Obama can empower the FBI to roam the country and gun down American citizens who are plotting against us, whether they belong to al-Qaeda affiliates or not. Nor does he think that the 1st Cavalry Division can do this, even though that's exactly what they did during the Civil War. He's merely using the Civil War analogy because it was handy and seemed like it might sound plausible to readers who didn't think about it too much.
As it happens, I don't think the Awlaki precedent means that President Obama is going to go hog wild and start mowing down Americans overseas. I don't think that President Rick Perry would, either. But there are good and sound reasons that presidents are constrained in their ability to unilaterally kill U.S. citizens, regardless of where they live, and we allow these bright lines to be dimmed at our peril. Unfortunately, the war on terror has made poltroons out of every branch of government. The president hides behind the post-9/11 AUMF, using it as a shield to justify any action as long as it's plausibly targeted at al-Qaeda or something al-Qaeda-ish. Congress, which ought to pass a law that specifically spells out due process in cases like this, cowers in its chambers and declines to assert itself. And the courts, as usual, throw up their hands whenever they hear the talismanic word "war" and declare themselves to have no responsibility.
If the president wants the power to kill U.S. citizens who aren't part of a recognized foreign army and haven't received a trial, he should propose a law that spells out when and how he can do it. Congress should debate it, and the courts should rule on its constitutionality. That's the rule of law. And regardless of whether I liked the law, I'd accept it if Congress passed it, the president signed it, and the Supreme Court declared it constitutional.
However, none of that has happened. The president's power in this sphere is, in practical terms, whatever he says it is. Nobody, not liberals or conservatives, not hawks or doves, should be happy with that state of affairs.