If an alien enemy combatant, such as Khalid Sheikh Mohammed, mass-murders 3000 Americans and is then captured outside the U.S. in wartime, we need to bring him to the United States and give him a civilian trial with all attendant due process rights. If an alien enemy combatant is sending emails from outside the U.S. to an al Qaeda cell inside the U.S., the commander-in-chief needs a judge's permission (on a showing of probable cause) to intercept those communications. If an American citizen terrorist outside the United States — say, Awlaki in Yemen — is calling or emailing the United States (or anyplace else), the commander-in-chief needs a judge's permission to intercept those communications. If we capture an alien enemy combatant conducting war operations against the U.S. overseas, we should give him Miranda warnings, a judicial right to challenge his detention as a war prisoner, and (quite likely) a civilian trial. But, if the commander-in-chief decides to short-circuit the whole menu of civil rights by killing an American citizen, that's fine — no due process, no interference by a judge, no Miranda, no nothing.
McCarthy thinks that's fine, because in this case he agrees with the President that Awlaki is a "proven threat." But Kevin Williamson demurs:
Odious as Awlaki is, this seems to me to be setting an awful and reckless precedent. Consider how "interstate commerce" has been redefined over time to cover that which is neither interstate nor commerce, for the sake of political expediency. It is easy to imagine "national security" being treated the same way, particularly in an open-ended conflict against a loosely defined enemy. And we aren't assassinating U.S. citizens under the rubric of interstate commerce.
The solution here, it seems to me, is to follow established procedures for stripping Awlaki of citizenship, then proceed in the interests of national security. It used to be common practice to strip traitors of citizenship, but the notion of "treason" seems to lie too close to "nationalism" (that ugly word) to be invoked much these days. Still, if a court can demonstrate that Awlaki has taken up arms against the U.S., he could be stripped of citizenship.
Furthermore, while I agree with Williamson that this sets a dangerous precedent, I don't think his argument would be at all persuasive to the President. He is a "pragmatist", you see, and as such is likely to look at each problem as a separate, distinguished entity, not as a variation on a theme whose general solution has already been established by precedent. A pragmatist wants to have the freedom to pick the "best" solution, unconstrained by precedent.
The problem with this view is that others will view your actions as precedent regardless of whether you do. People want predictability. Ours is also supposed to be a nation of laws and not of men. That is, given a conflict between competing principles, law is supposed to provide an impartial resolution; there is not to be recourse to the partiality of a human. (It is an unreachable goal, of course, if for no other reason than that the law is interpreted by human judges. But the principle remains.) Law and precedent are inextricably related. Obama and the "pragmatists" do not wish to be constrained by the law, or precedent, when they are inconvenient. The Awlaki case is just one small example among many.