On its way to the Supreme Court is the first-ever ruling on whether a president — without ever going to a judge — can order the assassination of an American for terrorism. Bringing this fateful lawsuit — Aulaqi vs. Obama, (Defense Secretary) Robert Gates and (CIA Director) Leon Panetta — are the American Civil Liberties Union and the Center for Constitutional Rights.
The ACLU recognized that under "The Constitution and international law ... intentionally killing is ... prohibited without judicial due process — charge, trial and conviction — physical harm, and lethal force is a last resort."
Along with the ACLU, the Center for Constitutional Rights will present the Supreme Court with the factual lawlessness of the Obama administration's lethal hunt for Anwar al-Aulaqi:
An extrajudicial killing policy under which individuals are added to 'kill lists' after secret bureaucratic processes and remain on the lists (for months at a time) even in the absence of any reason to believe that they pose a threat of imminent harm goes far beyond what the Constitution and international law permit."
Very far beyond. Also, this secret assassination pursuit "violates the Constitution: U.S. citizens have a right to know what conduct may subject them to execution at the hands of their own government." Not knowing, they are utterly defenseless.
This American target was placed on the kill list in early 2010. The Center for Constitutional Rights continues: "Anwar Al-Aulaqi has not been charged with any crime, but reportedly has been the target of as many as a dozen missile strikes in Yemen already."
And dig this: "The United States is not engaged in war within or against Yemen, and its actions against Al-Aulaqi must be constrained by the Constitution and international law, as with any U.S. citizen."
This is not a battlefield.
As others and I have reported, he is a jihadist by his own incendiary statements, but he is still an American citizen. Not even Obama, Gates and Panetta can strip an American citizen of his or her most fundamental constitutional rights in order to obliterate that person.
And in all the reporting and debates I've seen on this official murder, there has been little attention to a letter written directly to President Barack Obama at the White House by Anthony Romero, executive director, American Civil Liberties Union, on April 28, 2010.
"The program you have reportedly endorsed is not simply illegal but also unwise, because how our country responds to the threat of terrorism will, in large part ... govern every nation's conduct in similar contexts. If the United States claims the authority to use lethal force against suspected enemies of the U.S. anywhere in the world — using unmanned drones or other means — then other countries will regard that conduct as justified.
"The prospect of foreign governments hunting and killing their enemies within our borders or those of our allies is abhorrent." President Obama has yet to answer Romero.
There is historical background for this concern raised by Romero. In my 2003 book, "The War on the Bill of Rights and the Gathering Resistance" (Seven Stories Press), I cited a report by Human Rights First, "End Secret Detentions," which demonstrated that:
"U.S. policies that promote secrecy and lack of accountability have encouraged authoritarian regimes around the globe to commit abuses in the name of counterterrorism."
Among the examples:
• In Zimbabwe — where President Robert Mugabe, while voicing agreement with the Bush administration's policies in the war on terrorism, "declared foreign journalists and other critics of his regime 'terrorists' and suppressed their work." His version of our "enemy combatants."
• And in Eritrea — where the governing party arrested 11 political opponents, has held them incommunicado and without charge, and defended its actions as being consistent with United States actions after September 11).
The targeted killing of Anwar al-Aulaqi — and any other U.S. citizen eventually added to the U.S. secret murder list, or who may be already there for all we know — could lead dictators to cite their own already active target-kill lists as also being justified by the United States. They could do it with private smirks, not having anything but loathing for this country.
In the November 1 National Review, a lively conservative journal, Kevin D. Williamson energized this debate in: "Assassin-in-Chief: The War on Terror has blinded the Right to a disturbing expansion of executive (U.S.) power." About al-Aulaqi, he writes:
His crimes are real, and there is precedent for punishing them — we hanged Der Sturmer editor Julius Streicher at Nuremberg, but felt the need to conduct a trial first: Even a Nazi got more due process than we today are willing to extend to U.S. citizens. Aulaqi is a traitor, to be sure, but hanging American traitors is a job for the American federal courts, not for assassins.
Williamson concludes, "Decent governments do not assassinate their own citizens." And how do we decent citizens react?
Margaret Fuller, an associate of Ralph Waldo Emerson and editor of the Transcendentalist magazine The Dial, said in the 19th century: "This country needs to be born again." As a libertarian, in my own imperfect way, I see some signs of that urge for rebirth here now. We may see more in 2012, especially if Barack Obama feels entitled to a second term.
If he does and fails, much depends, of course, on who succeeds him and the future composition of Congress. Most important will be who we are becoming as Americans under a government that assassinates its citizens.