Never heard of him? Me neither. But according to published reports, he was one of two lawyers in the Justice Department’s Office of Legal Counsel — the other was Martin Lederman — who in 2010 composed an approximately 50-page memo saying it was legally permissible to kill Awlaki even though he was a U.S. citizen and had not been convicted of so much as a traffic violation. Using plain common sense, they apparently argued that Awlaki — born in the United States or not — was an enemy combatant and could be treated as such. On Sept. 30, he was killed in a drone attack in Yemen.
A little “yippee” emitted from me when I heard the news. Awlaki was a traitor to his country and its values. He was allegedly a senior recruiter for al-Qaeda and was linked to the Fort Hood shooting suspect Nidal Malik Hasan as well as other attempted terror acts. Awlaki was not shy about his activities, and so they, not to mention his allegiance, were not in question.
There was a question, though, about what to do with him. The Constitution is persnickety about due process, the right to a trial and so on. Awlaki’s citizenship seemed to complicate matters, although in the view of some it should not have. He was an enemy combatant, pure and simple. We were at war, pure and simple, and his life could be taken.
But according to those who have seen it, there is a hint in the Justice Department memo that this was never a pure and simple case. We are told that one reason Justice concluded Awlaki could be killed was because he was in the wilds of Yemen and could not be captured. It seemed some thought was given to his citizenship; otherwise, why even bother to consider his capture? About 2,000 militants have been killed by drones — and not because they couldn’t be captured. They were killed not only because they deserved to be but because they could be. Former attorney general Michael B. Mukasey even suggests in a Wall Street Journal op-ed that these militants were killed because the Obama administration, having ruled out harsh interrogation, had no use for them.
The Justice Department memo and its acknowledgment of Awlaki’s citizenship are ample proof that the Obama administration realized it was crossing a line. But it did so on the sneak — a memo, still secret, written by two lawyers you and I never heard of.
We live in a soft police state. It’s not a film-noir one, based on ideology and punctuated by the crunch of hobnailed boots, but one created in response to terrorism and crime. Cameras follow us. Our travels, our purchases, are recorded. Our computers and cellphones snitch on us. There’s no Orwellian Big Brother, just countless little ones, all of them righteously on the lookout for the bad guys. It’s necessary, I suppose. It will be abused, I don’t suppose.
The American Civil Liberties Union has criticized Awlaki’s killing. But so far, the only politician of note to do so is Rep. Ron Paul, the Republican presidential candidate with a touching reverence for the Constitution as written. “Al-Awlaki was born here; he’s an American citizen. He was never tried or charged for any crimes,” he exclaimed. Paul, though, gets dismissed as a constitutional kvetch.
I do not share Paul’s indignation, but I do his dismay. Something big and possibly dangerous has happened . . . in secret. Government’s most awesome power — to take a life — has been exercised on one of its own citizens without benefit of trial. A guy named Barron and another named Lederman apparently said it was okay. Maybe it was. But I’d sure like to hear the attorney general or the president explain why.