MELISSA BLOCK, host: As soon as news broke of Awlaki's death, debate erupted over whether the U.S. had a legal basis to target one of its own citizens with deadly force. Awlaki may have been one of the most wanted men in the world, but as NPR's Carrie Johnson reports, he hadn't been convicted of a crime in American or international courts.
CARRIE JOHNSON: Last year, President Obama put Anwar al-Awlaki on a secret list that gave the intelligence community a green light to target him in a deadly drone attack. The move bothered human rights advocates so much that they sued enlisting Awlaki's father as a plaintiff in the lawsuit. Hina Shamsi leads the National Security Project at the American Civil Liberties Union. She describes the case this way.
HINA SHAMSI: The government should not have the unreviewable authority to carry out the targeted killing of any American, anywhere whom the American president deems to be a threat to the nation.
JOHNSON: But the Justice Department responded that Awlaki wasn't just any American. He transformed himself from a cleric who inspired young Muslims with words to an operational leader who helped equip terrorist plotters with bombs. A judge ultimately threw out the ACLU lawsuit saying it involved state secrets and raised political questions that should be answered in Congress, not the courts. All of those questions came roaring back again today with word of Awlaki's death at the hands of the U.S. government.
JOHN BELLINGER: The requirements of the Constitution with respect to due process for killing an American are not clear.
JOHNSON: That's John Bellinger, who served as a lawyer in the State Department under President George W Bush. After 10 years of talking about legal authority when it comes to terrorism, he says, there's still no international consensus on the legality of drone strikes, and no clear precedent for using those drones to kill a U.S. citizen.
BELLINGER: Wherever they are in the world, they have a constitutional right to due process, but due process doesn't necessarily mean an adversarial judicial hearing.
JOHNSON: So Bellinger says under his view of the law, a criminal trial or even an indictment doesn't have to happen to satisfy the Constitution. Instead, a legal finding by the Justice Department and debate among lawyers from multiple government agencies might have satisfied Awlaki's rights under the Fifth Amendment. Ken Anderson teaches at American University's Washington College of Law. Anderson closely follows U.S. policy on drones, and he says the analysis starts with whether Awlaki amounted to a lawful target, U.S. citizen or not.
KEN ANDERSON: The U.S. has always seen somebody who is planning attacks against the United States as being a lawful target.
JOHNSON: Either because Awlaki presented an imminent threat to American citizens or because he had become an enemy fighting alongside al-Qaida in the Arabian Peninsula. Anderson says in the legal analysis, the place where a target is located matters, too.
ANDERSON: Its standard is we're not going to be targeting somebody in London or Paris or someplace that's got the effective rule of law.
JOHNSON: But by hiding in Yemen, Awlaki couldn't be served with a subpoena or easily taken into custody, putting himself in a different category. The Justice Department says it's OK to target leaders of enemy forces who plot to kill Americans under U.S. and international law, but it didn't want to talk about specific people or operations. Experts say that might not be required under the law, but it would make good political sense to share more information with Congress and the public. That's because Awlaki might be the first case to present these difficult questions, but it won't be the last. Carrie Johnson, NPR News, Washington
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