Here's Secretary of Defense Leon Panetta responding to complaints from the ACLU over the "assassination" of an American citizen without due process: "This individual was clearly a terrorist. And yes, he was a citizen, but if you're a terrorist, you're a terrorist. And that means that we have the ability to go after those who would threaten to attack the United States and kill Americans."
I agree with that. The Constitution empowers the president to put down insurrection, and what was Awlaki if not an insurrectionist? From the Whiskey Rebellion to the Civil War to World War II, there have been times when presidents legally and constitutionally treated American citizens as enemy combatants. Awlaki hardly seems deserving of special treatment.
Moreover, the authorization for the use of force passed on Sept. 18, 2001, says 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."
It doesn't say anything about exempting Americans. If news reports, statements from U.S. officials and Awlaki himself are to be believed, Awlaki was a member of al-Qaida. Moreover, he helped orchestrate and incite violence aimed at the U.S. He never denied the charges against him but hid outside of U.S. jurisdiction fomenting violence against America.
And yet, I sympathize with critics on the far left and libertarian right who find the whole thing unseemly. Surely when an American is in the crosshairs, there's a higher political bar, even if there isn't a higher legal or constitutional one.
ABC's Jake Tapper asked White House spokesman Jay Carney, "Does the administration not see at all how a president asserting that he has the right to kill an American citizen without due process, and that he's not going to even explain why he thinks he has that right, is troublesome to some people?"
Carney's response: "I'm not going to ... discuss the circumstances of his death."
But here's where I am confused. According to Attorney General Eric Holder, the administration is committed to treating captured terrorists as criminals, entitled to all of the rights and privileges of a civilian criminal trial.
It seems the Defense Department disagrees, given that some lesser-known prisoners are allegedly kept on ships -- call them floating Gitmos -- without trials.
Meanwhile, President Obama keeps ordering that the more famous terrorists be killed on sight. That's fine with me. But as far as I can tell, he's never disagreed with Holder's view about the need for civilian trials for terrorists we don't kill, like Khalid Sheikh Mohammed.
Hence my confusion. If you believe that even non-American terrorists should be treated like American criminals, with all of the Fifth Amendment rights we grant to our own accused, how can you sanction killing an American without so much as a hearing?
The Fifth Amendment says that no person shall be "deprived of life, liberty or property without due process of law." A Predator drone strike seems to deprive all three.
Which would you prefer: to be arrested, possibly waterboarded and then tried by a U.S. military court in Cuba, or to be disintegrated by a Hellfire missile? What's worse, to be executed after a less-than-perfect military trial, or to be executed with no trial at all?
And let's not forget, these missiles aren't that surgical. They kill the people around the target too. In this case Samir Khan, a U.S.-born editor of al-Qaida's magazine, Inspire, was killed -- not to mention a number of others. Where was their day in court?
And that's the point, really. If captured alive, terrorists pose political problems for Obama. Where do we put them? How do we interrogate them? And, most pressingly, how do we try them?
I don't think those are tough questions. But Obama does. So he prefers to kill these people outright, avoiding the questions altogether.
Jonah Goldberg is editor-at-large of National Review Online and a visiting fellow at the American Enterprise Institute. You can write to him by e-mail at JonahsColumn@aol.com, or via Twitter @JonahNRO.