With those words [of determination to assassinate US citizen Anwar al-Awlaki] attributed to Obama, Klaidman has reported what would appear to be the first instance in American history of a sitting President speaking of his intent to kill a particular U.S. citizen without that citizen having been charged formally with a crime or convicted at trial.
The due-process clause of the Fifth Amendment prohibits “any person” from being deprived of “life, liberty, or property without due process of law.” Obama authorized the termination of Awlaki’s life after he concluded that the boastful, mass-murder-plotting cleric had, in effect, forfeited constitutional protection by waging war against the United States and actively planning to kill Americans. Obama also believed that the Administration’s secret process establishing Awlaki’s guilt provided adequate safeguards against mistake or abuse—all in all, enough “due process of law” to take his life.
Awlaki was certainly a murderous character; his YouTube videos alone would likely convict him at a jury trial. Yet the case of Awlaki’s killing by drone strike is to the due-process clause what the proposed march of neo-Nazis through a community that included many Holocaust survivors in Skokie, Illinois, was to the First Amendment when that case arose, in 1977. It is an instance where the most onerous facts imaginable should lead to the durable affirmation of constitutional principle, as Skokie did. Instead, President Obama and his advisers have opened the door to violent action against American citizens by future Presidents when the facts may be much less compelling.
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