The Obama administration's "justification" for the targeted assassination of American Anwar al-Awlaki--a radical cleric who was killed by a U.S. drone strike in September--was that
What constitutes due process in this case is a due process in war,
which is apparently no process at all.
Under the Freedom of Information Act, I sought the Justice Department memo providing the legal rationale for his assassination, and received the absurd response that the Department
can neither confirm nor deny the existence or nonexistence of records responsive to your request . . . because the very fact of the existence or nonexistence of such records is itself classified.
How can something that doesn't exist be classified?
Now, five months later--in the drip, drip, drip of "authorized leaks" by "officials who can only speak one the condition of anonymity because they are not authorized to speak about the subject"--we learn from the L.A. Times some of the "evidence" that led Obama to order the drone strike: al-Awlaki was instrumental in the failed Christmas Day underwear lot to blow up a Detroit-bound airliner. ("Evidence" is in quotes because it cannot be tested since we killed Awlaki.)
Who the bigger propagandist here--Alwaki or the United States You would think that as the U.S. struggled mightily to justify its targeted assassination of an American--who at the time was alleged to have done no violence, but committed the "crime" of making propagandist videos (something protected by the First Amendment)--it would have trotted out this "evidence" tying Awlaki to attacks against the U.S.
Of course, there is no way to test this evidence because Awlaki was summarily assassinated without charge, counsel or judicial review.
Moreover, the rationale has shifted from
What constitutes due process in this case is a due process in war
to the more specific excuse that
Awlaki was involved in planning operations to kill Americans and that he was therefore subject to deadly forces under the Authorization to Use Military Force [AUMF] law passed after 9/11.
Even more squirrelly, Alwaki has now morphed from a motivational role to an operational role; specifically, the "mastermind of the Christmas 2009 bomb plot" (which failed not because of TSA security theater, but because of alert passengers.)
This new information is apparently coming out now in the form of a sentencing memo for the "Underwear Bomber," Umar Farouk Abdulmutallab, who pleaded guilty to the attempted bombing. We are now told that it's okay that we killed an American because:
* the Underwear Bomber stayed in Awlaki's house while the attack was planned
* Awlaki helped write the Underwear Bomber's "martyrdom" video statement
* Awlaki introduced the Underwear Bomber to a man who designed the explosive device
* the Underwear Bomber was inspired by Awlaki's extremist videos
This all sounds pretty bad, but of course, again we only have what the U.S. is selectively telling us. (Sorry, I'm getting mixed up on who's the propagandist in this story.) These sordid and salacious details allow us to avoid having to plumb the real question.
How do we square the targeted assassination of an American (Awlaki), and an indisputably innocent American (Awlaki's 16-year-old son), with the Due Process Clause of the Fifth Amendment, which states the simple yet profound notion that the Constitution requires governmental procedures to be fundamentally fair before a person may "be deprived of life, liberty or property."
A president's war powers should not be more potent than the Fifth Amendment. Why doesn't someone ask the candidates about that?