Was Killing Al-Awlaki Unconstitutional?

Guy Benson

10/3/2011 3:58:00 PM - Guy Benson

By now you've heard about the special US operation that struck a terrorist convoy in Yemen on Friday, killing top Al Qaeda recruiter and cleric Anwar Al-Awlaki, among others.  Al-Awlaki was one of the most dangerous men on the planet.  His twisted "spiritual guidance" helped inspire three 9/11 hijackers, failed Times Square bomber Faisal Shahzad, Fort Hood shooter Nidal Hasan, and so-called "underwear bomber" Umar Farouk Abdulmutallab.  He was also a US citizen.  As news of Al-Awlaki's demise spread, some civil libertarians raised concerns about the US government (in this case the CIA and JSOC) "assassinating" a citizen without any Constitutional due process.  Rep. Ron Paul declared himself "sad" that such an action had been taken.  As odious as this cretin was, do Paul and others have a point?  Should Americans be concerned that a New Mexico-born United States citizen was taken out by a military strike, authorized by a standing kill order from the president of the United States?  Although these questions should give thoughtful Americans from across the political spectrum some pause, the law says the strike was both justified and Constitutional.  As Ed Morrissey notes, the US Congress has specifically authorized and funded military force against Al Qaeda:
 

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

    (a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
    (b) War Powers Resolution Requirements-
    (1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
    (2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.


Item (a) is the crucial piece.  The president is authorized to use necessary military force against entities -- including persons -- who aided the 9/11 attacks.  This authorization is both retroactive and preventative.  Al-Awlaki's teachings explicitly contributed to the 2001 attacks, and his fanaticism directly inspired multiple additional plots against the United States.  He was a proud, active member of Al Qaeda, and he would have carried on with his murderous work if he hadn't been liquidated.  In other words, he intentionally and knowingly joined the enemy in a time of war.  His citizenship did not shield him from that choice.  The movement in which he was a central and especially dangerous figure was, and is, at war with the United States of America.  Our country finally woke up to that reality in 2001, years after Al Qaeda and its various tentacles launched their war against us.  Treating the struggle against radical Islamic extremists like a true war was one of the most important decisions President Bush made during his time in office.  This point is fleshed out in compelling detail in Andrew McCarthy's must-read book, "Willfull Blindness."  Anwar Al-Awlaki joined this war on behalf of our enemy, and was revoltingly effective in his contributions to the anti-American cause.  He has now been dispatched from this earth for his actions.  Good riddance.

I asked Herman Cain about Al-Awlaki's death at the presidential forum at "Tea Con" on Saturday.  Back in May, Cain said he opposed a shoot-to-kill order against any US citizen in the absence of due process:
 


On Saturday, Cain (reluctantly) changed his position.  He told me the case against Al-Awlaki was based on overwhelming, incontrovertible evidence, and that certain "exceptions" should be made in special circumstances.  He said he supported the strike on Al-Awlaki, and no longer questioned Obama's kill order.  I'm pleased that Cain has adjusted his approach on this controversy, but I'd still question his stated rationale here.  The targeted killing of a dangerous enemy in a time of war was not "an exception" to the Constitution.  It was an action that hewed to the law of the land, as described above.  Although I'd argue that he's flipped to the correct side of this question, Cain should be pressed further on his views.  The former Pizza mogul's popular appeal is real, undeniable, and growing -- but on issues that lie beyond his wheelhouse, he must convince voters that he isn't making up his policy views as he goes along.  Second- or third-tier candidates may be able to escape intense scrutiny of sundry inconsistencies and missteps.  First tier candidates generally cannot.