This article first appeared in the St. Louis Beacon, Oct. 11, 2011 - WASHINGTON - When an American citizen affiliated with al-Qaida was killed in Yemen last month, the drone strike set off a debate about the constitutional limits of the U.S. "targeted killing" program in areas outside of war zones.
Republican presidential candidate Rep. Ron Paul, R-Texas, condemned the strike, the American Civil Liberties Union charged that it violated the Constitution and international law, and news organizations revealed that the U.S. Justice Department had sent a memo to the White House justifying such a strike.
On Tuesday, two former U.S. attorneys general -- John D. Ashcroft and Michael B. Mukasey -- defended the drone strike against American-born Anwar al-Awlaki as within a president's powers. But Ashcroft cautioned that courts have held that constitutional protections kick in after a U.S. citizen is detained as an enemy combatant.
The most outspoken on the "targeted killing" issue was Mukasey, who was attorney general at the end of President George W. Bush's administration, in 2007-08. He told a forum of the conservative Heritage Foundation think tank that a person who has been identified as an enemy combatant can be targeted by such a program, whether or not he is a U.S. citizen.
"During World War II, there were two groups of saboteurs ... who were rounded up by the FBI and tried before a military commission on the order of President Roosevelt," Mukasey said. One of the saboteurs, Herbert Hans Haupt claimed to be a U.S. citizen, and all of them sought to be tried outside of the military tribunal.
But Mukasey said the Supreme Court's eventual ruling, after the saboteurs had been executed, found that Haupt's citizenship claim "was essentially irrelevant -- that once he had decided to join a hostile force, whether he as a citizen or not did not matter. The same is true of al-Awlaki."
Mukasey argued that, once al-Awlaki threw in his lot with al-Qaida, "he became a target. And I think he jolly well knew it."
Reacting to that assessment, Ashcroft commented: "Well said. I believe the case law is instructive on that, although one distinction in the way we treat U.S. citizens might be in the detention phase."
Ashcroft, who was the Bush administration's attorney general from 2001-2004, cited as a precedent the Supreme Court's Hamdi vs. Rumsfeld decision in 2004 -- in which the court recognized the government's power to detain enemy combatants but ruled that detainees who are U.S. citizens must be allowed to challenge their "combatant" status before an impartial judge
"Justice (Antonin) Scalia mentioned that, for U.S. citizens in settings for detention that could be indefinite, we had but one choice: either suspend the [habeas corpus] writ, which obviously had not been done, or charge them with treason," said Ashcroft, a former U.S. senator and Missouri governor. "But when it comes to actual combat situations, if a person is an enemy combatant, I think they are eligible for treatment as an enemy combatant" unless they are detained, he added.
After it became clear that al-Awlaki was killed by a CIA-coordinated strike in late September, the ACLU arguedthat the government does not have the authority to order such "targeted killings" of American citizens far from an armed conflict zone. The ACLU contends that, outside of armed conflict, both the Constitution and international law ban targeted killing except as a last resort to protect against specific and imminent threats of death or physical injury.
Tuesday's Heritage Foundation event was moderated by Edwin "Ed" Meese III, a former attorney general during the administration of President Ronald Reagan. The session focused mainly on the proper balance between Congress and the president -- as well as the role of the courts -- on issues related to war and national security at a time when this country is threatened. (Click here to read a short report he wrote on the issue of presidential war powers.)
Ashcroft, an architect of the controversialUSA Patriot Act that some groups contend compromised individual liberties, argued that when the nation is threatened, the president must be given the necessary power to act in its defense. "None of us would want the president to have almost enough power to save the United States, but not quite enough so that he could perhaps flex credibly his muscles but not win the war."
The Patriot Act, first approved in 2001 and extended later with amendments, dramatically reduced restrictions on law enforcement agencies' ability to search telephone, e-mail and other records, eased restrictions on foreign intelligence gathering within the United States, and expanded the definition of terrorism to include domestic terrorism.
Meese said the nation's founders wanted a balance of power but said the Constitution gave the president the authority to act quickly and decisively when necessary. All three of the former attorneys general decried what they believe to be an encroachment by the federal courts in recent years on the president's wartime powers.