Who Needs A Trial? Death Penalty By Fiat

One morning in late September 2011, American drones took off from an airstrip the C.I.A. had built in the remote southern expanse of Saudi Arabia. As profiled by the New York Times, the drones crossed the border into Yemen, and were soon hovering over a group of trucks clustered in a desert patch of Jawf Province, a region of the impoverished country once renowned for breeding Arabian horses.

A group of men who had just finished breakfast walked over to get in their trucks. One was Anwar al-Awlaki, the firebrand preacher, born in New Mexico, who had evolved from a peddler of Internet hatred to a senior operative in Al Qaeda’s branch in Yemen. Another was Samir Khan, another American citizen who had moved to Yemen from North Carolina and was the creative editor of Inspire, the militant group’s English-language Internet magazine. 

Two of the Predator drones pointed lasers on the trucks to pinpoint the targets, while the larger Reaper drones took aim.  The Reaper pilots, operating their planes from thousands of miles away, locked on their missiles, and fired.  Anwar al-Awlaki was the designated target on this historic day-- as lawyers in the Obama administration had believed his killing to be justifiable.  On the other hand, officials had judged that Samir Khan was not a significant enough threat to warrant being targeted . . . too bad about his choice of where to have breakfast that morning.

The missile strike launched that day not only killed Awlaki, but also unintentionally killed Samir Khan.  For the first time since the Civil War, the United States government had carried out the deliberate killing of an American citizen as a wartime enemy-- and without a trial.

The next month, another drone strike mistakenly killed Awlaki’s 16-year-old son, Abdulrahman, while he was searching the Yemeni desert for his father. Within just two weeks, the American government had killed three of its own citizens in Yemen. Only one had been killed on purpose.

The war in Iraq has ended and the war in Afghanistan soon will be as well.  At that point, will we be at war?  If not, when will we ever stop being at war?  Unfortunately, the complex legal justifications created to justify extra-judicial killing by the U.S. president are available for only a small group of officials to read-- but apparently they are largely based on powers granted to the Executive Branch for the purposes of conducting "war".  Even worse-- if the president can order the assassination of Americans overseas, based on secret intelligence without  the oversight of Congress or the Judicial branch, what are the limits to his power?