Was the killing of Anwar al-Awlaki an unconstitutional violation of a citizen's due process rights?

By all accounts Anwar al-Awlaki was a bad guy - at least for those on our side - but was his (apparent) killing illegal? Is the United States now free to assassinate its own citizens if a presidential administration deems it acceptable? Critics argue that this action violated the Fifth Amendment's Due Process clause. Even more so, some wonder if an American citizen been killed for the content of his speech.

Former Bush legal adviser John Yoo thinks the killing was justified. Here's a summary of an editorial:

A U.S. drone strike Friday killed Anwar al-Awlaki, a Yemeni-American linked to the shootings at Fort Hood, Texas and the attempted bombing of a Northwest flight. It was a victory, writes John Yoo in The Wall Street Journal, yet "even as details of the operation leaked out, critics claimed that our government had 'assassinated' an American citizen without due process."

The ACLU has represented Awlaki's father, arguing "the Constitution forbids the government from trying to kill an American citizen for allegedly joining the enemy." The U.N. has suggested drone strikes deny due process. Last December, a court threw out the ACLU claim, saying "Awlaki always had the option of returning home to prove his innocence." American officials have defined an assassination as "an act of murder for political purposes," something which Awlaki's killing was not. "American citizens who join the enemy do not enjoy a roving legal force-field that immunizes them from military reprisal."

Abraham Lincoln knew early on that the government had the right to "treat its own citizens as enemies when they take up arms in rebellion. Supreme Court opinions have upheld Lincoln's principle." The shape of the war on terror, with a stateless enemy that recruits fighters from any country makes Lincoln's idea more important, and in 2001, the Supreme Court reaffirmed the idea that someone could be at once a citizen and an enemy combatant.

The Obama administration should be certain a citizen is a member of al Qaeda, and it should emphasize capturing not killing enemies, but as they face a drawdown, "the U.S. may be left with no opportunities for capture, and precious few chances to kill."

Secret Executive Memos

One of President Bush's more aggressive claims was that the inherent powers of the presidency allowed him broad latitude in conducting the war of terror. It has been tough to evaluate this claim because we are only now getting to know exactly what these claims were. Now we are beginning to find out.

Inherent Powers: Did Lincoln Have the Constitutional Power to Emancipate the Slaves in the South?

Yes, because it was during a civil war and he claimed it to fall under his war powers:

The Civil War transformed Lincoln from a president into the constitutional commander in chief of the army and navy. What that meant, exactly, was far from clear. But that status might also give him yet another route toward emancipation. International law recognized that, in time of war, military commanders had the authority to suspend the normal operations of civil law and rule by decree. Only one American general—Andrew Jackson—had actually ever done this on American soil. But there had also never been a civil war in America before. And so Lincoln began gradually flexing his “war powers”—he suspended the writ of habeas corpus, he called up armies of volunteers into federal service, and he imposed a blockade of the Confederacy.

Of course, at each point, Taney and the Supreme Court hotly contested Lincoln’s use of these “war powers.” And this made him leery of pressing the “war powers” to the point of emancipating the South’s slaves. But by the summer of 1862, the military aspect of the war was going very badly. Relying on the labor of its slaves, the Confederacy was able to field armies that could easily hold their own against Lincoln’s armies. And his own generals—chief among them George B. McClellan, the commander of the Army of the Potomac—were politically unsympathetic to emancipation and sulky in taking orders from Lincoln. And to make matters worse, Delaware turned down the buy-out plan. If Lincoln waited longer, he might have victorious rebel armies surrounding Washington; or he might have mutinous generals threatening to seize the government for themselves. We “must change our tactics or lose the game,” Lincoln announced, and on July 22, 1862, Lincoln read to his cabinet a draft of an emancipation proclamation, threatening to decree the freeing of the slaves as a “fit and necessary war measure for suppressing” the rebellion. When McClellan and his army finally defeated the Confederates at Antietam in September, Lincoln published the proclamation and gave the Confederates 100 days to end the rebellion or the emancipation would take effect. The 100 days came and went without any repenting on the part of the Confederates, and on January 1, 1863, Lincoln signed the Emancipation Proclamation into law.

Into military law, that is. Lincoln had no more civil authority as president to emancipate slaves in 1863 than he had had at the beginning of the presidency, and every lawyer in the country knew it. This is why the proclamation did two very peculiar things: first, it based its emancipating authority strictly on Lincoln’s “power in me vested as Commander-in-Chief . . . in time of actual armed rebellion.” Second, it limited the reach of emancipation only to the slaves in “the States and parts of States . . . this day in rebellion against the United States.” The four slave states that had not joined the Confederacy (Delaware, Maryland, Kentucky, and Missouri) were not “in rebellion” and so Lincoln’s “war powers” had no reach over them.

On Constitutional War Powers

George Will has written an update on the ongoing dispute over the nature of congressional war powers.

He supports an resolution introduced to replace the ineffective Way Powers Resolution--the Constitutional War Powers Resolution--and challenges the extent of inherent powers claimed by the current president and echoed by Giuliani.

He also reminds of the inconsistency of each party in Congress on this issue. Democrats did not complain when Clinton committed troops to Bosnia, and Republicans seem to have forgotten that they used to oppose expansive government.