Obama to U.S. born terrorists: I’ve got your ‘due process’ right here

The George W. Bush administration took a lot of heat for condoning various forms of torture against suspected terrorists, and rightfully so, in my opinion.  So where is the general outrage against the Obama administration now that Attorney General Eric Holder has laid out his legal case for killing America citizens suspected of terrorism?

U.S. born Anway al-Awlaki, an al-Qaida leader, was killed by a drone attack in September. (File photo by Muhammad ud-Deen .)

The basic idea is this: If the executive branch determines that a U.S. citizen poses an imminent threat to the nation, that there is little chance the citizen could be captured and that killing this person would not violate the basic rules of war, the president can order the hit.

At issue is the killing of Anwar al-Awlaki, who died in a targeted drone strike in Yemen in September. Awlaki was born in New Mexico but became a high-ranking al-Qaida leader.

“Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al-Qaida or associated forces. This is simply not accurate,” Holder said.

Yes, the Constitution’s Fifth Amendment protects people from being deprived of life “without due process of law.” Holder says if the executive branch reviews the matter before making a decision, that is all the due process needed. (Read an account of the statement here.)

Critics say that isn’t how things are supposed to work in a nation run by laws under a Constitution of checks and balances.

Andrew Rosenthal of the New York Times argues here that “the president must receive some kind of judicial input before ordering the death of an American citizen. Even if that happens in secret, the American people should know that someone who doesn’t work for the president looked it over and weighed the evidence.”

After all, if the Founders had wanted a government where the head guy could do whatever he wanted and just say, “Trust me,” they would have anointed a king.

I try to look at both sides of this argument clearly. Fighting terrorism is a difficult task. President Obama has had to learn this the hard way, which is why Guantanamo is still around.

But the argument that it would be too clumsy for the administration to have to seek judicial review before carrying out a hit against an American-turned-terrorist living abroad just doesn’t ring true. At the least, there ought to be a process whereby the administration can seek judicial review in general terms for striking a target, should the opportunity arise. Awlaki probably didn’t pose an imminent threat to the U.S. at the very moment he was hit. There was time to lay out the case, in secret, to a judge or panel of judges ahead of time.

Drone strikes against U.S. citizens and the idea of a pre-emptive attack sound very George W. Bush-ish to me. Personally, I think Bush was overly criticized for how he approached this difficult struggle against terrorism. At the least, however, his critics should acknowledge that Obama has now taken things to a new, and more disturbing, level.

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Categories: Washington

About the Author

Jay Evensen

Jay Evensen is the Senior Editorial Columnist for the Deseret News. He has 32 years of journalism experience covering politics and a variety of other assignments at news organizations ranging from United Press International in New York City to the Las Vegas Review-Journal and the Deseret News, where he has worked since 1986. During that time, he has won numerous local, regional and national awards. Most recently, he was given the Cameron Duncan Media Award, given annually in Washington, D.C., by the advocacy group RESULTS, to the journalist judged to have done the most to further the cause of the world's poorest people.


  1. CLM

    Thank you for a sane post in a world growing more insane with blood lust for supposed terrorists. I was saddened (but not surprised) to see that the “yes” votes on your survey are already far exceeding the “no” votes.

    In America, guilt is now determined and a death penalty imposed simply by a secret decree by the president. Then aides, under cowardly anonymity, announce to the newspapers that, in this case, Awlaki, a US citizen, has gone from simply expressing anti-American views (Constitutionally protected, by the way) to an actual terrorist involved in plots. These stories are then printed with no investigation, questioning, or validation. And then murder by decree is carried out. Who could possibly justify this? Who could possibly think it is legitimate government power? Judging by the response to your survey, there are many who do.

    Any American citizen who is moved into the threat category has no rights and can be executed without trial or evidence. Who’s next?

  2. Steven Yorgason

    Perfectly stated, CLM. The title “executive” is ironically appropriate in this case, but Mr. Obama is also the judge and jury. The idea that terrorism can be defeated by killing all the terrorists is twisted logic and puts us on the road to total war. This is NOT the America I believe in.

  3. Robert Eberlein

    I agree that the process of determining that an American citizen is guilty of treason should not produce secret conclusions, that only surface when that person is killed. I can imagine that human sources of information, such as a spy working for us within Al-Qaeda, might need to be protected, so don’t expect full disclosure of all evidence. But I think that any “Wanted, Dead or Alive” list of American citizens should be published! The process should include judicial review, and the names of the unanimously assenting jurists to the decision be published as witnesses.

    The legislative branch needs to make a suitable law, and then the judiciary can become part of the due process. Accused traitors would have a chance to appeal a public charge against them. Our country has been at war for over a decade; it is about time that the concentration of life and death power in waging it, currently residing with the President and his inner circle, be made subject to checks and balances. Otherwise, that power will corrupt those wielding it.

  4. Guanaco

    He was a terrorist not better than Osama Bin Laden. I’m glad our president has the will to do it and take care of these American born terrorists. He gave up his citizenship when he started to incite others to kill American soldiers.

    • Tators

      I agree with Guanaco. Any American citizen who actively and publicly starts fighting against the U.S. military has then relinquished his citizenship rights. Even more-so when done in foreign lands in terrorism battle zones.
      We live in a time when terrorism is a big deal. We’ve lost thousands of American lives to it, and will undoubtedly lose many more. These traitors, like al-Awlaki, knew the risks when they decided to take up arms against their own country. At that point, most don’t expect, nor should they receive, any special due-process rights that other terrorists don’t receive either. Acts of war aren’t the same as civil crimes. As such, they don’t have the same rules, and for good reason. Those reasons are obvious to most reasonable thinking people.

  5. VaughnJ

    The protection of the Constitution should be paramount to any decision by President OBAMA or any leaders of this country. We the people may consider it would be better for a suspected terrorist to be killed/murdered without legal authority; but that is lynch mob thinking. We must accept that their are risk in having a Justice system that protects ALL citizens. What an Individual does may not be desirable or right; but within the framework of the Constitution the law should be paramount. The President should not be able to arbitrarily change the law, or institute his desires because he is President.

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