President Obama, Executioner-in-Chief

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The federal government has been wrong about accused terrorists in the past. Assassinating Americans without due process is folly.

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Maybe President Obama is for death panels after all. 

In the words of the Associated Press, "Anwar al-Awlaki, and a second American, Samir Khan, were killed by a joint CIA-U.S. military air strike on their convoy in Yemen early Friday. Both men played key roles in inspiring attacks against the U.S., and their killings are a devastating double blow to al-Qaida's most dangerous franchise." Aside from the fact that they were killed, is that true? Let's just ignore Khan on the "what's one more dead body" theory that is apparently the convention guiding most commentary on the day's events. Do we know that al-Awlaki has played a "key role" in inspiring attacks against the United States, and that his death is a "devastating blow" to al-Qaida? My colleague Max Fisher makes a persuasive case, elsewhere on this site, that "though the Yemen-based branch of al-Qaeda has been tied to recent attempted terrorist attacks the U.S., those attacks have all failed. And even those failures might have had little to do with Awlaki, a man with no operational experience, battlefield experience, or skill-set known to extend beyond shouting into a webcam and posting to YouTube."

Lest readers think I am quibbling about the effectiveness of an al-Qaeda in the Arabian Peninsula operative, rest assured that I'd have been perfectly happy to see him tried in absentia for treason, provided with legal counsel, convicted, and then subjected to the death penalty though a drone strike. My point comparing the certainty of Associated Press's language with the facts we're actually in a position to verify is that the media readily traffics in dubious assertions about the man. That is particularly troublesome in this case because al-Awlaki, denied due process by the Obama Administration, has effectively been charged, tried, and sentenced to death in the American press.

So far, the reaction from writers with a civil libertarian impulse has been to clarify the terrifying precedent that the Obama Administration has set. "Regardless of how any of us feels about war-making in general, there are very good reasons that national governments are more constrained in their ability to kill their own citizens than in their ability to kill foreigners," Kevin Drum writes, "constraints enshrined in both the explicit rules and longstanding traditions of due process. That bright line has grown a lot dimmer today." Said Glenn Greenwald, "For you good progressives out there justifying this, I would ask this: how would the power to assassinate U.S. citizens without due process look to you in the hands of, say, Rick Perry or Michele Bachmann?"

What is important to add, now that the American government is assassinating citizens without trial or due process of any kind, is how frequently it wrongly asserts that someone is an enemy of the United States. Ponder the track record of the entity that is now judge, jury and executioner.

As far back as the 1996 bombing at the Atlanta Olympics, a bungled FBI investigation and a news media indulging its worst impulses turned heroic security guard Richard Jewell into a prime suspect. During the espionage case against Wen Ho Lee, the nuclear scientist found himself held in extremely harsh conditions, including a long stint in solitary confinement. As the judge overseeing his case would later say in a formal apology to the defendant, "During December 1999, the then-United States Attorney, who has since resigned, and his Assistants presented me, during the three-day hearing between Christmas and New Year's Day, with information that was so extreme it convinced me that releasing you, even under the most stringent of conditions, would be a danger to the safety of this nation." As it turned out, that information was inaccurate, as evidence uncovered later proved. And Lee ultimately won $1.6 million in a civil suit against the federal government and several news organizations complicit in its wrongful behavior.

Remember the anthrax attacks on government buildings, media outlets, and the U.S. mail system? "As the pressure to find a culprit mounted, the FBI, abetted by the media, found one," David Freed wrote in a May 2010 Atlantic feature story. "This is the story of how federal authorities blew the biggest anti-terror investigation of the past decade--and nearly destroyed an innocent man." His piece is about the persecution of Dr. Steven J. Hatfill. It's necessary to say so because Army defense researcher Bruce Ivins, who the FBI later fingered as the guilty man, might not have been the culprit either.

What's notable about the cases I've just mentioned -- and there are more like them -- is that the wrongly accused defendants were put through hell despite enjoying the safeguards of a traditional domestic law enforcement investigation. No wonder that government mistakes against folks afforded fewer rights have been even more common. In the aftermath of the September 11 terrorist attacks, the Bush Administration assured Americans that the detainees being held at Guantanamo Bay were "the worst of the worst." As it turned out, "Many detainees locked up at Guantanamo were innocent men swept up by U.S. forces unable to distinguish enemies from noncombatants."

Despite all these instances of the U.S. accusing innocent people of crimes against America, sometimes torturing them and imprisoning them for years on end, President Obama is sufficiently confident in federal officials, including the CIA -- one of the least accountable, least transparent branches of government, and one with a less than perfect record getting accurate intelligence -- that he regards it as good, prudent policy to pronounce death sentences upon American citizens, in clear violation of the 5th Amendment, without even a safeguard as basic as a classified trial in absentia and a judge to do due diligence on the alleged evidence. And this extraordinary power, with its obvious potential for catastrophic abuses, is vested in one man who'll leave office in one or five years, to be replaced by an as yet undetermined politician -- perhaps Rick Perry, who presided over Texas when it executed the likely innocent Cameron Todd Willingham, despite a trial with forensic testimony and a years long appeal process.

President Obama has perhaps forever changed the relationship between the United States government and its citizens, setting a precedent as damaging as anything a modern president has done, and the appropriate reaction, whatever one's partisan or ideological orientation, is shock and anger at his hubris and imprudence. Depending on the GOP nominee in 2012, I may well decide that I can't vote for him or her in good conscience. But today, as Obama celebrates the extra-legal assassination of an American, and sets the precedent that the president can kill citizens without due process if he or she pronounces them a terrorist, I know that I cannot in good conscience cast a vote to re-elect him. If you're even a little bit of a civil libertarian, and this didn't cost Obama your vote, I'd ask you to ponder this question: What transgression would?


Image credit: Reuters
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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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