When U.S. Pres. Barack Obama considered the unprecedented step of intentionally killing an American citizen without judicial process, he asked for a legal opinion that would provide legal cover in case he was accused of a war crime.
Unfortunately, he did not ask for two opinions, one providing authority for killing a citizen and the other why it would be illegal, or at least we have no evidence for an opposing legal position. His request raises an interesting question — under what circumstances is it legal to kill an American citizen without due process?
Virtually all jurisdictions define “murder” as the “unlawful killing of a human being.” The operative word here is “unlawful.” If someone goes into a building on a shooting spree, no time exists for a warrant, a hearing or a trial.
Killing someone on a shooting spree would be a lawful killing because no time exists for a constitutionally-mandated legal process. Under these conditions, killing the shooter, regardless of his or her citizenship, is legal.
Obama’s request was for a similar legal justification. In this case, that killing radical preacher Anwar Al Awlaki would be a lawful killing. Then Attorney General Eric Holder supplied the 97-page legal memorandum, generated 14 months prior to the successful September 2011 assassination of Awlaki, who the U.S. government accused of being a key figure in Al Qaeda’s recruitment efforts.
The legal memorandum was designed to satisfy the president that killing Awlaki without a trial, without judicial process, and with the only “due process” coming from a handful of bureaucrats from the executive branch, would make it legal. In the process, Obama violated one of the fundamental premises in the Anglo-American legal system, one honed by centuries of precedent — the belief that through adversarial proceedings, the truth will emerge.
Obama did not ask for a rebuttal memorandum (or if he did, he never shared it), one offering countervailing considerations and containing opposing points of view — a memorandum that would indicate he had been fully briefed from all perspectives, an opinion that might have made him reach a different conclusion.
Since Obama appears to have asked for only one point of view, he did not have the benefit of hearing a contrarian legal perspective. So here is a non-lawyer’s attempt to show why he should not have killed Awlaki.
Read the Remainder at War is Boring