But many patriotic Americans are wondering: Does the President have the rightful power to order the assassination of any U.S. citizen he deems a threat or a danger to society? And if the answer to that first question is yes, what limit can be placed on a presidential license to kill? The Constitution and Anglo-American common law places no firewalls on this pretended new presidential power. And if the President is to be trusted with an unlimited license to kill, why should the United States continue to bother with inefficient courts, juries, and trials at all?
The basic argument justifying Obama's assassination of Awlaki is this: Trust the President with an unlimited license to kill. Putting a video criticizing America on YouTube, as Awlaki unquestionably did, may not be a crime punishable by death. But the President says he has secret evidence Awlaki did more than cheer on terrorists. We must, the President/executioner's supporters argue, trust the President.
But America's whole history, indeed the lesson of the whole 800-year-old Anglo-American common law system, is that chief executives cannot be trusted to be judge, jury, and executioner. The Anglo-American purpose in holding trials was not to confer some benefit upon the guilty, but to sort the guilty from the innocent so that innocents are not punished. Chief executives have long knowingly thrown innocent people in jail (or knowingly kept innocents there, as Bush and Cheney did with some innocents at Guantanamo) or even killed innocents.
Trusting the President with a license to kill certainly makes all courts obsolete. If Americans must trust the President in this case, why should they doubt him in other cases? As noted above, there is no constitutional provision or power to limit this precedent from multiplying. If the President has this power to stop terrorism, then he has it to stop any crime.
Obama's assassination is a direct attack on the U.S. Constitution and the Founding Fathers' vision for America. James Madison argued in The Federalist #51 that the very purpose of government was separation of powers, to prevent the executive from becoming judge, jury, and executioner. He wrote that the purpose of the U.S. Constitution was:
to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty.... In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
Alexander Hamilton agreed with Madison, writing in The Federalist #78 (and quoting Enlightenment author Baron de Montesquieu):
For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."