There's no question, therefore, that, if the U.S. government had Awlaki in its custody, he would be entitled to due process under the Constitution. Alas, that's not the situation that obtained here. He was instead, to the extent it can be said to exist in our murky state of hostilities with al-Qaeda, on the battlefield. In this case, then, the Quirin principle that Awlaki, regardless of his citizenship, became an enemy belligerent by his association with al-Qaeda would seem to obtain. And, again, if he were not an American citizen few would question his targeting.
This, of course, gives awesome power to the president and puts us on a very slippery slope. If the president can order the assassination of Awlaki simply by declaring him an enemy combatant, who can't he kill?
Presumably, he would lack the authority to order the killing of anyone, whether a U.S. citizen or not, on American soil. Practical considerations would likewise constrain him from having someone killed in London, Paris, or Stockholm. But alleged bad guys living in failed states or otherwise not subject to easy extradition would seem to be fair game.
What's to prevent a president from simply declaring Americans he doesn't like for whatever reason "enemy combatants" and having them murdered? The same thing that prevents him from launching nuclear weapons, launching military attacks, and otherwise abusing the incredible power that comes with that office: the system, such as it is.
First, and perhaps most importantly, the road to the Oval Office goes through the American people. The grueling two-year campaign cycle serves as a powerful vetting tool, weeding out candidates without the character, judgment, and temperament to sit in the big chair. It's not a perfect safeguard, of course, and there's room to quibble over the quality of a few who made it through.
Second, we have a system of checks and balances. Congress has the power to force its way into the decision-making process in cases like this one, where action is planned over months and even years. In the Awlaki case in particular, Capitol Hill has had plenty of time to insist that the Obama administration lay out its case for action. Either they've done that (behind closed doors in the appropriate national security committees) and been satisfied or they've abrogated their responsibility. Further, lacking such advance warning, Congress can certainly exercise its oversight powers after the fact, calling the administration on to the carpet. Its members have enormous power in this regard, up to and including the ability to impeach the president.
Additionally, the courts also have a significant role to play in safeguarding the Constitution. While they've historically been deferential to elected policy-makers on matters of national security policy, they have, as seen in Hamden, Boumediene, and several other cases, been willing to limit their prerogatives, even when applied to unsympathetic defendants, in order to defend larger principles.
Ultimately, there's far less reason to be concerned about the prospect of rogue presidents ordering Americans killed willy-nilly than that Americans will stop questioning actions taken by their leaders in the name of national security.
Image credit: REUTERS/Ho New