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News recently came out that the United States has an assassination order, a “hit” if you will, against an American cleric in Yemen, Anwar Al-Awlaki. This man has been confirmed as a supporter of terrorism but the extent of his support is debatable. In fact, the entire situation is a debate. The notion that the government can put out an assassination order on one of its own citizens has caused an uproar. “Where’s the due process?”, they cry. And admittedly, it at first seems to be a classic overreach of government power. Yet, after observing the facts of the case, one realizes that this particular problem is a lot more complex than it would appear.

The first fact to take into account is the circumstantial evidence against Al-Awlaki. He was a spiritual adviser to two of the 9/11 hijackers. Al-Awlaki was the inspiration for and in direct contact with Nidal Hassan, the Fort Hood shooter who killed eight American soldiers. The failed Christmas Day “underpants bomber” claimed that Al-Awlaki helped train him in an Al Qaeda training camp in Pakistan. Numerous intelligence sources have stipulated that Al-Awlaki was at a meeting of senior Al Qaeda leaders in December. He was in contact with Faisal Shazad, the would be Times Square bomber (who also described Al-Awlaki as his inspiration). Finally, and most damning of all, Al-Awlaki sent a tape to CNN in which he openly called for jihad against America–essentially a declaration of war.

All in all, the evidence against Al-Awlaki is pretty damning. I would stipulate, based on these facts, that he is a member of Al Qaeda. The only reason that he hasn’t been indicted in the United States appears to be the fact that much of the evidence against him is considered protected under the State Secrets Act. This is a point of contention I will return to later on. In general, we now have the question of whether it is right for the government to kill an American citizen that is associated with and almost certainly a member of Al Qaeda.

If Al-Awlaki were in America, the obvious answer would be no. In the United States, there is absolutely no solid excuse for executing someone without due process unless the person in question is actively taking or threatening American lives. This is basically limited to taking hostages and firing on police or civilians. Even if one were to plan the deaths of thousands in the United States, one has the right to a fair trial (see the Faisal Shazad story for further detail). Yet, Al-Awlaki is not in America, he is in Yemen. And he is in a particularly lawless part of Yemen.

Let me explain. Al-Awlaki is in a section of Yemen surrounded by a tribe loyal to him. Additionally, this tribe is known to be harboring members of Al Qaeda. To attempt to arrest him, the United States would need to send in a large force, incur numerous casualties and then lose even more men in order to spirit him away alive. Finally, in all likelihood, Al-Awlaki would not “come quietly” but would instead try to take as many American lives as possible. The pragmatics here simply do not outweigh the potential loss of life in terms of military options.

Thus, Al-Awlaki should be considered as foreign combatant. In this case, an analogy is needed and is provided by blogger and writer for “The Atlantic,” Andrew Sullivan. He asks whether we would feel comfortable with killing an American citizen who fought for the Nazis at D-Day. There is the question of how much of a combatant Al-Awlaki is, but he nevertheless does amount to a significant threat to the United States. He has had a hand in five terrorist attacks in the United States during the past five years and, as evidenced by his recent declaration, he has no intention of stopping. The question is not whether Al-Awlaki is a threat but instead is whether the threat can justify depriving him of due process.

Before I reach a final conclusion, I would first like to state that I do not believe that simply leaving Al-Awlaki alone or waiting on Yemen to capture him is a viable option. One might ask if it would be better to have a terrorist attack or compromise our values. Yet the fact that Al-Awlaki has all but renounced his citizenship to the United States (the Treasury Department recently actually froze his U.S. accounts and made it illegal for him to return) coupled with his status as a senior strategist and propagandist for terrorists would seem to argue that he is an enemy of the state. As such, under international and United States law, he is liable to have a kill order on him. Al-Awlaki is as much of a combatant as Osama Bin Laden, and I don’t think anyone would have any reservations about killing him (even if he were an American citizen).

Finally, I would argue that even if one thought of this as a compromise of American values, the curbing of liberty following a successful terrorist attack would undoubtedly far outweigh this. Thus I am fine with the idea of the military attempting to “take out” Al-Awlaki. Yet I am not comfortable with the manner in which it is done. The president of the United States should not have the direct authority to order an assassination of an American citizen.

Instead, I believe that all three branches of the government should have to sign off on such an order. Congress must have a two thirds vote to revoke the person’s citizenship. The Supreme Court must give the all clear (thus determining if the evidence in question is enough to justify such a penalty). My metric for the Supreme Court would be three main burdens of proof on the government–that the person in question is affiliated with a terrorist group, that he was actively taking part in plotting the deaths of Americans, and that arresting him would be reasonably impossible. Also, the court would have to make these determinations based on the evidence–thus the State Secrets Act would have to be nullified in these cases. Finally, the president must then sign off on the order.

An assassination order should not be issued against a citizen within the borders of the United States. Additionally, It should only be a valid order if the person in question makes no attempt whatsoever to refute the charges. If Al-Awlaki were to so much as state in an interview that he is not affiliated with Al Qaeda, the order would be invalid. In general, this process would only be utilized as a last resort. The system I have set up is most likely imperfect but I think it should serve as a guideline to balance the two sides in this debate.

I believe there is adequate proof that Al-Awlaki is a grave threat to the country and nearly untouchable in Yemen. Yet I also believe that the president being able to unilaterally orchestrate his death is a bad precedent. An assassination is really the only feasible option on the table. It is always depressing when we have to kill one of our own whether it’s a man who opens fire in public or a bank robber who tries to shoot his way out of police encirclement. Yet it has to happen. In a case where someone is actively trying to wage a war against the United States by encouraging and plotting the deaths of American citizens, the government must act.