I was glad to hear that Herman Cain has revised his position on the Obama Administration’s recent killing of Al Qaeda terrorist Anwar al-Awlaki. Had Cain not revised his position, he would have joined other 2012 GOP candidates, including, unfortunately, Gary Johnson, in insisting that because al-Awlaki was a U.S. citizen, he was entitled to “due process”.
As I see it, the better people who have had qualms about the killing of al-Awlaki were confusing two questions: (1) Do you think that a government following a proper procedure would have given and carried out a kill order on someone like al-Awlaki? (2) Do you think the Obama Administration followed a proper procedure? Based on the knowledge I have, I think the answer to the first question is “yes,” while the answer to the second question is “maybe.” Because the Obama Administration has not released the secret DOJ memo, or writ, that it developed to justify the killing of al-Awlaki, we do not yet know whether they followed a proper procedure.
What would such a procedure consist of? Something analogous to that used to obtain a search or arrest warrant, but obviously more involved because of what is at stake. The procedure would be designed to make objective, to the extent practicable, the fact that the proposed target has acted in such a way as to relinquish his citizenship and that he has rendered himself an enemy combatant. I agree with the official quoted in this Daily Mail article, who said, “What constitutes due process in this case is a due process in war.”
Perhaps the proper procedure would be a hearing before a special judge, or panel of judges. Maybe a grand jury of sorts would be most appropriate. What is clear, though, is that it’s nonsense to assume that whatever procedure is used must protect the target’s “fifth amendment rights — guaranteeing a fair trial for all U.S. citizens,” as the Daily Mail article implied.
Citizenship is revocable. It’s not some intrinsic status that you get to retain no matter what actions you take against your country. And whatever you think should be the minimum necessary actions to constitute a relinquishment of one’s citizenship, I would assume that acting as “‘chief of external operations’ for al Qaeda’s Yemen branch” probably qualifies. (Click here for information on the current state of the law in this regard. Thanks to a Facebook friend for posting this information on a mutual friend’s wall.)