Obama is arguing the executive has the power to execute American citizens without a trial, without even so much as an airing of the charges against them, and that it can do so in complete secrecy, with no oversight from any court, and that the families of the executed have no legal recourse.
I already have a problem with the assertion that the Obama administration can send a Predator after an American citizen without some sort of court order. Now they're arguing that there be no oversight whatsoever? This is deeply disturbing.
It's worth noting that Balko is an ardent civil libertarian, and I don't have the legal chops to really get into exactly what is being argued. But it sounds to me like the broad thrust is indisputable. Here's WaPo:
Civil liberties groups sued the U.S. government on behalf of Aulaqi's father, arguing that the CIA and the Joint Special Operations Command's placement of Aulaqi on a capture-or-kill list of suspected terrorists - outside a war zone and absent an imminent threat - amounted to an extrajudicial execution order against a U.S. citizen. They asked a U.S. district court in Washington to block the targeting.
(Emphasis mine.) I think this is the real problem. If an American citizen is in Afghanistan and shooting at our troops, yeah, he's gonna get killed. But I think there's a moral and legal difference between that and dropping a bomb on an American citizen in Yemen because he's connected to a terrorist group.
In response, Justice Department spokesman Matthew Miller said that the groups are asking "a court to take the unprecedented step of intervening in an ongoing military action to direct the President how to manage that action - all on behalf of a leader of a foreign terrorist organization."
Miller added, "If al-Aulaqi wishes to access our legal system, he should surrender to American authorities and return to the United States, where he will be held accountable for his actions."
Mission creep much? Dropping a bomb in Yemen on an American citizen is apparently now covered by the AUMF? Back when we cared more about the rule of law and weren't in a perpetual state of war with, apparently, the entire world, didn't we have extradition treaties and the like? Dropping an ultimatum along the lines of "you're a criminal, surrender and return to the US or die" sounds like something out of a dystopian novel.
Justice Department officials said they invoked the controversial legal argument reluctantly, mindful that domestic and international critics attacked former president George W. Bush for waging the fight against terrorism with excessive secrecy and unchecked claims of executive power.
No shit? At least they're "reluctant." Or something.
Adam Serwer has more:
I'd only add that whether or not al-Awlaki is a very bad person is irrelevant to the question -- which is whether or not the president has the authority to kill anyone he wants with no judicial review based on having simply labeled them a terrorist. If due-process rights only applied to "good people," they wouldn't be rights, and if the government can deprive you of such rights merely by labeling you a "bad person," then ultimately none of us is safe.
As a side note, do you think the Tea Party or the "small government" right will decry this? No, probably not. Providing universal health care is tyranny, but assassinating one's own citizens without due process is "strong national defense". It falls to "crackpot" lefties like Greenwald and Serwer and "crazy libertarians" like Balko to raise hell about this. Unfortunately, there's no Fox News for civil libertarians.
(A big tip o' the hat to the Dish.)
EDIT: Andy McCarthy, who thinks the president is a secret Muslim working to install Sharia law, has no problem with that same president having the power to assassinate US Citizens extra-judicially. Kevin Williamson, also at NRO, takes him to task.