Trials can be messy things. They take time. Their outcomes are not always predictable. It is not the rare lawyer — government or privately retained — who might wish he could wave a magic wand and simply achieve the desired result for his client without the expense, time, and uncertainty of a trial. Uncle Sam now has done just that — placing names of suspected terrorists on a list and then locating and killing them, without the need for an indictment, a trial, an appeal, or even an order for execution.
This is a slippery slope down which Americans ought not go without a great deal of careful deliberation.
I am not making this point out of sympathy for American-born Muslim cleric Anwar al-Awlaki. Al-Awlaki is hardly a sympathetic figure. He was, until his death by drone last week in Yemen, a terrorist leader and recruiter working with al-Qaida. He was suspected of having ties to U.S. Army officer Nidal Hasan, who went on a shooting rampage at Fort Hood in 2009, and to Umar Farouk Abdulmutallab, the so-called “underwear bomber” now facing trial in federal court.
In the government’s view, al-Awlaki was a “proven threat” whose exploits had been “well established” — which, the government believes, provides more than sufficient justification for his assassination. While this loose standard for “executive action” might hold true for non-citizens engaged in hostilities abroad, until 9/11 it wasn’t considered sufficient for taking action against a U.S. citizen, regardless of whether that citizen was in the U.S. or overseas.
The administrations of George W. Bush and his successor have developed a new set of rules for dealing with suspected terrorists who happen to be American citizens. These rules allow for no judicial review. As illustrated by the killing of al-Awlaki, the executive branch now claims the right to decide on its own, without any judicial determination of probable cause — much less proof beyond a reasonable doubt — that a U.S. citizen has engaged in acts of terrorism and can be killed.
The obvious problem here is that no case was presented and no evidence was laid out on which to properly base an execution of a U.S. citizen. The only difference between the manner in which al-Awlaki was disposed of and the manner in which Nidal Hasan killed his victims is that the latter committed his acts in full view and within the United States.
While those on a “hit list” may very well deserve to be there — just as Timothy McVeigh deserved to be for his role in carrying out the 1995 Oklahoma City bombing — the fact of the matter is, we do have mechanisms for dealing with U.S. citizens who commit heinous acts. Of course, these actions involve more than simply gathering secret intelligence and then ordering a person to be killed when that evidence crosses the line from speculative to “well-established.”
As noted by the Queen of Hearts in Alice in Wonderland, it is indeed easier to execute first and marshal evidence later. The Queen, of course, did not have to bother with the Constitution and Bill of Rights. But American presidents take an oath to uphold the principles and terms of those foundational documents, as do those who serve under them. And we, the people, should not lightly permit our leaders to ignore those hallowed principles and procedures. Doing so places all of us on a very slippery slope.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He provides regular commentary to Daily Caller readers.