- The Washington Times - Tuesday, October 11, 2011

The more Americans learn about the White House rationale for the targeted killing of an American citizen, the more ominous it sounds.

The latest information on the secret memo that justified the termination of al Qaeda terror leader Anwar al-Awlaki indicates that the basis for the decision was that there was no other way to eliminate him as a threat. Because capturing him was not feasible, he had to be killed. There is no argument over the obvious fact that al-Awlaki posed a threat to this country, but the rationale for negating an American citizen’s constitutional due-process rights cannot be based on simple expediency. Imagine applying the same “we couldn’t catch him so we killed him” rule to domestic law enforcement. No court in the country would stand for it. It is hard to believe that the national assets that infiltrated Osama bin Laden’s compound could not do the same in al-Awlaki’s lair.

The memo reportedly was drafted by attorneys David Barron and Martin Lederman in the Office of Legal Counsel. The thinking of this duo seems to have “evolved” from three years ago, when they argued in the Harvard Law Review that the executive branch had amassed too much war-making power. Defenders of the Obama administration argue that the memo - written long after the kill order was issued - was narrowly tailored to al-Awlaki and not intended to establish a broad policy. This argument is unconvincing. Every person placed on a government death list, whether a U.S. citizen or not, must by law have his case reviewed and his termination authorized by a presidential finding. In that respect, every case is and should be unique. However, having established an operational precedent with al-Awlaki, it would be naive to believe that future cases would not simply default to the same logic.

Precedent always makes policy, but this is both a dangerous precedent and bad policy. The memo may attempt to explain how this utilitarian argument for assassination overawes constitutional guarantees of due process, but so long as the report remains locked away in the White House, we may never know.

President Obama’s legal team has overlooked a better justification for the killing. Last November, when it was first reported that al-Awlaki had been placed on the Obama administration’s death list, The Washington Times introduced the argument that the terror leader was no longer an American citizen. Even though al-Awlaki had not publicly renounced his citizenship, he had engaged in the type of “expatriating acts” that would constitute a “fair inference” that he no longer considered himself to be an American, per the test in the 1980 Supreme Court case Vance v. Terrazas. By this rationale, there is no due-process issue because by the time he was killed; he was not a citizen.

Instead, the White House has chosen a more complicated, less elegant and frankly unpersuasive approach that raises more questions than it answers. It is no wonder Mr. Obama is trying to keep the secret death memo under wraps. If this is the best work his advisers can do, they are not serving the president or the country well. The al-Awlaki targeted-killing memo doesn’t amount to tripping down a slippery slope; it is jumping down an elevator shaft.