by Julian Ku
The NYT reports that the Obama Administration has authorized the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki, The article notes the international law justification for his killing: he is an avowed member of Al Qaeda actively engaged in hostilities against the U.S. Under either the law of armed conflict or the general law of self-defense, the Administration probably has the legal authority to kill him. (Unless international human rights law applies, but the administration plainly believes this law does not apply).
But, as I noted here a few months ago, this international law analysis does not answer questions about al-Awlaki’s constitutional rights. Under U.S. Supreme Court precedents, U.S. citizens often can invoke constitutional rights against the U.S. government, even when they are abroad. (See Reid v. Covert). Maybe this is a situation where granting constitutional protections would be, as Justice Harlan suggested, “impracticable and anomalous.” It certainly seems that way, and I assume the Obama Administration has concluded that the Constitution does not apply. Alternatively, the Constitution might apply, and the theory is simply that al-Awlaki’s rights substantive and procedural Due Process rights are not being violated. This seems a harder argument to make, and it would be fascinating to see someone (like Harold Koh again?) make it.