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Earlier this year, the Obama administration placed Anwar al-Awlaqi, an American citizen and an operative for al-Qaeda, on a kill list of approved targets.
On September 30, he was killed in Yemen by a missile fired from a CIA drone. The administration asserts self-defense and the 2001 Congressional Authorization for Use of Military Force as the legal basis for its actions.
There can be no legitimate disagreement that Awlaqi was an enemy of the United States, inciting violence against Americans, and who, according to published reports, had become involved in operational planning. The AUMF authorizes the president to take all actions fundamental and accepted as incidental to war, including killing the enemy.
Some have questioned the legality of premeditated targeted killings of American citizens, and the authority of the president to place unilaterally an American on a kill list. During World War II, there was no serious controversy over the killing in routine military operations of Americans fighting for the enemy. However, the critics argue this a different time and a different kind of war when the battle lines are blurred and it is sometimes harder to tell the good guys from the bad guys.
Today it is this enhanced possibility of the mistaken or unjustified deprivation of life and liberty by the executive branch which is, I believe, the primary reason the courts have been less deferential to decisions by Congress and the president in the war on terror, particularly when they relate to American citizens.
The probability is not insubstantial that an American President will confront again the decision whether to target an American citizen.
The scope of the president’s power here will be debated; and it is possible the U. S. Supreme Court will not intrude further upon the authority of the executive branch in military and national security affairs.
However, many intelligence and law enforcement experts believe the next terrorist attack against the U.S. will be committed by, or involve, an American citizen. So, the probability is not insubstantial that an American president will confront again the decision whether to target an American citizen.
In 2004, Justice Sandra Day O’Connor wrote in Hamdi v. Rumsfeld, “ . . . a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens.” Hamdi involved the authority of the president alone to designate Hamdi, an American citizen, as an enemy combatant and detain him in the United States.
In the future, the courts may require our government to do more to ensure that American citizens targeted to be killed are not deprived of life without due process of law that may be required under our Constitution.
Alberto R. Gonzales is the former United States Attorney General and the former Counsel to President George W. Bush. He is currently a visiting professor at Texas Tech University and a regular columnist for Fox News Latino.