Kevin — you write:
If anybody can be designated an enemy combatant in a war in which the battleground is everywhere and the president has legally unlimited power to do as he will, and when citizens can be put to death summarily, with no checks and balances and no meaningful separation of powers, we have surrendered something important.
I understand your concern with protecting constitutional rights and good government. But your comment merits a few responses.
First, for purposes of combat actions such as the targeted killing of Awlaki, the battleground in our war against al-Qaeda is not “everywhere.” It is in those few countries that either willingly or unwillingly provide significant safe havens for al-Qaeda. Yemen is in the first rank of that group of countries, along with Pakistan, Afghanistan, and Somalia.
Second, legitimate al-Qaeda targets in each of those countries are subject to attack pursuant to Congress’s 2001 Authorization to Use Military Force after 9/11, which even Vice President Biden has deemed a constitutionally sufficient declaration of war. That disposes of the concern that the executive branch is operating without the imprimatur of Congress. And the president is at all times subject to a variety of laws that constrain his conduct as commander-in-chief. Just because this particular killing is not justiciable (on the facts known to us) does not mean that federal courts cannot hold the president to account for violations of U.S. law.
Finally, to the extent your reference to “checks and balances” goes to due process, our rules of engagement are informed by international law and fall within the regulatory powers of Congress. Nobody is alleging that the rules of engagement were not followed in this case. The Constitution’s due process guarantees for criminal defendants in a civil prosecution are meant to protect private citizens from the power of the state. They have never (at least not until recently) been understood to benefit combatants – U.S. citizens or otherwise — who have taken up arms against the state itself.
The difficulty of the issue, it seems to me, is this: The fight against al-Qaeda combines the aspects of both war and criminal law enforcement. Because it doesn’t fit entirely neatly into either paradigm, even Obama has to adopt hybrid policies, such as targeted killings and military commissions. From a terrorist’s point of view, the advantage of being both combatant and criminal is that he can wind up accumulating the protections afforded to each category, and thereby wind up in a better position than if he were just one or the other. Hence the danger, from our point of view, in conflating due process rights with the law of war.
An al-Qaeda convoy riding along a desert road in Yemen is a legitimate bombing target, period.