The President of the United States recently directed the execution of Anwar al-Awlaki. Mr. Al-Awlaki, an American citizen, had never been charged with a crime, let alone tried and convicted before an impartial judge or jury. This idea that the executive can unilaterally determine the guilt of a citizen and impose sentence is, to put it mildly, a regression to not even the 19th century that Republicans seems to love, but to approximately the 13th century.
On the other hand, Mr. Al-Awlaki, was an active, committed supporter of an organization that remained committed to harming America by killing Americans. The United States government claims he was actively engaged in terrorism and he had put himself beyond the reach of the American judicial system. If the United States is right and you believe Obama's action was illegal, what, if any, is the alternative course of action that would have been both legal and effective? Perhaps more importantly, what are the lines which limit the unilateral executive death warrant?
It is important to note that while there have been some attempts to minimize Al-Awlaki's citizenship by referring to him as American born, there aren't two classes of American citizens. Al-Awlaki was as much a citizen as you or I, Barack Obama or Rick Perry. Thus, whatever can be done to him can, under the same circumstances, be done to you. (And, President Perry will have the same powers that President Obama does.)
Some have taken the view that Al-Awlaki was a traitor and that justifies his execution. But the Constitution is unequivocal: you cannot be deemed a traitor except upon the statements of two witnesses in open court. To put this another way, it is clear that absent a trial, to penalize Al-Awlaki for treason was unlawful.
It is not, however, necessary to call Al-Awlaki a traitor for his execution to be legitimate. Those who acquiesce in the execution may view the action in military terms: Al-Awlaki was a legitimate target because he was actively engaged in combat operations against the United States, whether or not he was technically a traitor.
Al-Awlaki is likened to an American citizen who was a German (or Confederate) soldier on a battlefield. Clearly, such a person is a legitimate target. In the case of Al-Awlaki, one can argue that being in rural Yemen with known al-Qaeda supporters is equivalent to being on the battlefield and once someone is on that battlefield (absent, perhaps, exceptions, for medical personnel or journalists) he or she may be a legitimate target without regard to citizenship (or even if his citizenship is known to be American) and that there is no difference whether one is targeted individually or as a member of a class.
One implication of this analysis is that Al-Awlaki could have gone to another country and not been a legitimate target. Another is that if you or I go to an area or country generally known to have a large number of active members of Al-Qaeda we are giving up a significant part of our rights as American citizens.
If this is the basis for enabling unilateral Presidential death warrants, determining what constitutes a battlefield is critically important. Parts of Yemen, Somalia and Afghanistan are clearly battlefields. Other places might also be battlefields. Presumably, the President gets to make this determination, based on the AUMF passed in 2001 (or any subsequent similar authorization). The degree to which this determination is constrained is unclear.
Unfortunately, the Administration's justification for the execution differs from the above analysis in one critical respect. They argue that the basis for Al-Awlaki's execution was solely that he was involved in planning terrorist operations, without regard to his being located in Yemen. Alternatively, one could view this as a claim that the entire world is a battlefield against terrorism. The implication of this difference is that Al-Awlaki would have been a legitimate target anywhere in the world (except possibly in the United States). This is a broader claim and potentially a more serious problem: it is far more likely that an ordinary American will go abroad than it is that he or she will visit a country that is a battlefield.
The analogy offered here is that just as it was permissible to assassinate Admiral Yamamoto or a Confederate General, whether or not on an actual battlefield, it should be permissible to execute Al-Awlaki. However, unlike the two examples, Al-Awlaki is not openly acting in a military role with respect to the enemy. Of course, presence on a battlefield can substitute for openly acting in a military role and in Al-Awlaki's case it probably does; but that does not seem to be a constraint that the Administration believes is binding.
Absent the presence on the battlefield requirement, you have a situation where the President can unilaterally decide to execute anyone he or she believes is a person described in the AUMF or other Congressional authorization on evidence that cannot be contested before an impartial arbiter and might not stand up in court as long as that person has left the United States. There are reasons why the Constitution exists: Presidents and government officials can act in bad faith and they get things wrong. That is why we require trials and evidence and impartial judges and juries.
Even if, as I believe, President Obama (and his subordinates) acted in good faith; and even if they were not mistaken in determining that Al-Awlaki was an operational terrorist, allowing executive death warrants anywhere in the world, other than the United States, sets a very dangerous precedent that we may all have cause to regret.