According to media reports, the United States has taken the apparently unprecedented step of authorizing the "targeted killing" of one of its citizens outside a war zone — though the government has not officially acknowledged it.
Unnamed intelligence and counter-terrorism sources told reporters that the Obama administration had added Anwar al Awlaki, a Muslim cleric born in New Mexico, to the CIA list of suspected terrorists who may be captured or killed. Awlaki, believed to be in hiding in Yemen, has been linked to Nidal Malik Hasan, the Ft. Hood, Texas, shooter, and to Umar Farouk Abdulmutallab, the Nigerian charged with trying to blow up an airliner in December.
The reports indicate that the administration had concluded Awlaki had taken on an operational role in terrorist attacks. His addition to the CIA list shouldn't "surprise anyone," according to one anonymous U.S. official quoted in the New York Times.
It is surprising, however. As a matter of U.S. law, had the administration wanted merely to listen to Awlaki's cellphone conversations or read his e-mails, it would have needed to check with another branch of government — the judiciary. But to target him for death, the executive branch appears to have acted alone.
It adds up to this: Awlaki's right to privacy exceeds his right to life.
Since when has the fate of an American citizen — his privacy, his liberty, his life — rested solely within the hands of the executive branch of government?
Under our Constitution, life, liberty and property cannot be taken from us without due process of law. Due process means very different things in different contexts, but it usually involves judges. If the state wants to take your land for public use, it can, but you are entitled to a judicial hearing on its value. If the government wants to listen to your phones, the police must seek a warrant from a judge. If your government detains you, you are entitled to seek a judicial hearing on the lawfulness of your detention.
And if you are to be punished for your actions by death, the decision is made in court, after a trial that determines your guilt beyond a reasonable doubt, and a second trial that determines that you deserve the ultimate punishment.
In our system, even if we sometimes fail, we try to get it right before we take the life of a fellow citizen. To do that we need process and we need judges.
Of course, the Constitution is primarily a territorial document. It does not apply to foreign people in foreign countries. But it protects everyone inside the United States, both citizens and foreigners, even undocumented foreigners. It is unclear, however, which of our rights as U.S. citizens travel with us when we go overseas. Because the government hasn't been in the habit of taking away the rights of its citizens while they are abroad, there haven't been a lot of legal tests of the question. And so far, the Supreme Court has never ruled on whether constitutional guarantees prevent the government from killing its citizens abroad.
But we don't have to rely solely on the high court for an answer. It has been the job of Congress for 220 years to pass laws that pick up where the Constitution leaves off in order to protect American citizens from the excesses of government. In 1978, Congress passed the Foreign Intelligence Surveillance Act, going beyond the 4th Amendment by requiring the executive to seek a judicial order before conducting electronic surveillance on individuals inside the United States to collect foreign intelligence. In 2008, FISA was amended to require a judicial order for conducting surveillance on citizens when they are overseas too.
In advocating for that amendment, Sen. Ron Wyden (D-Ore.) got to the heart of the issue: "No matter where an American is in the world," he wrote in a Washington Post op-ed, "it always means something to be an American."
Which brings us back to Awlaki and his right as a U.S. citizen not to be killed by his own government.
If Congress is willing to protect our cellphone conversations, it should be willing to protect our lives. The legislative branch should again step up and pass a law requiring judicial review of decisions to put Americans on a CIA death list. Even in an election year, it is not "soft" to require judges to take a hard look at whether the executive is getting it right.
Vicki Divoll is a former general counsel of the Senate Select Committee on Intelligence and a former assistant general counsel for the CIA. She teaches U.S. government and constitutional development at the U.S. Naval Academy.