07 Apr The Constitutionality of President Obama’s Targeted Killing of U.S. Citizens
The NYT reports that the Obama Administration has authorized the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki, The article notes the international law justification for his killing: he is an avowed member of Al Qaeda actively engaged in hostilities against the U.S. Under either the law of armed conflict or the general law of self-defense, the Administration probably has the legal authority to kill him. (Unless international human rights law applies, but the administration plainly believes this law does not apply).
But, as I noted here a few months ago, this international law analysis does not answer questions about al-Awlaki’s constitutional rights. Under U.S. Supreme Court precedents, U.S. citizens often can invoke constitutional rights against the U.S. government, even when they are abroad. (See Reid v. Covert). Maybe this is a situation where granting constitutional protections would be, as Justice Harlan suggested, “impracticable and anomalous.” It certainly seems that way, and I assume the Obama Administration has concluded that the Constitution does not apply. Alternatively, the Constitution might apply, and the theory is simply that al-Awlaki’s rights substantive and procedural Due Process rights are not being violated. This seems a harder argument to make, and it would be fascinating to see someone (like Harold Koh again?) make it.