In one sense, “targeted killing” is what war is all about. But can the executive branch rightfully declare a U.S. citizen the target of an assassination order? Lead essayist Ryan Alford argues that the “presidential death warrant” is repugnant to the rule of law—so much so that the Founders didn’t even think it necessary to make an explicit statement about the practice. At the time of the Revolution, English kings hadn’t enjoyed such a power for centuries, and it was thought to be the very antithesis of the rule of law. A power of this magnitude cannot be simply inferred from the Constitution’s silence, particularly when legal practice in the Anglo-American world tells so strongly against it.
John C. Dehn argues that context is critical in Anwar al-Awlaki’s case. He cites the Prize Cases, concerning a set of property seizures during the Civil War, and related Supreme Court precedent to argue that citizens with “enemy” status in an armed conflict require no prior adjudication of guilt before being made the object of war measures, but only if any such measures are consistent with the laws of war. Nonetheless, this does not amount to an unlimited power to issue executive death warrants; the courts may rule on the existence of a conflict or its proper scope, and are even constitutionally compelled to determine whether citizens were properly targeted within it. The courts should not avoid these issues under the “political question” doctrine.
Gregory McNeal argues for another source of executive power that may legitimize the targeted killing of Anwar al-Awlaki, namely the federal protective power. Even outside of wartime, longstanding precedent allows federal agents to protect the interests and liberties of the citizens, as well as federal property and public servants. One need not convict al-Awlaki of treason to understand that he poses a threat in this sense, and doing so does not render the Treason Clause otiose; treason trials may still proceed and are not suppressed in any way. He further argues that issues such as this one, requiring “an informed debate [on their] benefits and dangers,” are obviously political questions — therefore properly out of reach of the courts.
Carlton Larson finds that a kill order issued in a military operation is not designed to punish, as the penal system obviously is. Instead, it aims to prevent future attacks and is logically implicit in war itself. If al-Awlaki were captured alive, or if he were to turn himself in, the Treason Clause would then govern the case. It does not necessarily do so now. Although Larson declares that he has difficulty siding decisively with any position on the case, he notes that it is “formalistic in the extreme” to conclude that all that separates lawful warfare from unlawful bills of attainder is a naming of names.