Few people would mourn the passing of radical U.S. cleric Anwar al-Aulaqi. However, his reported death from a U.S. air strike raises the long-standing question over President Obama’s insistence that he can unilaterally label a citizen as a terrorist and order his killing. It is one of the policies (of many) that Obama continued from his predecessor, George W. Bush, and was one of the subjects of my column yesterday in the Los Angeles Times.
As with the killing of Bin Laden, the celebration of the death of an infamous individual can obscure the question of the authority — and the limitations — of a president in ordering the killing of U.S. citizens.
Under the current policy, the President effectively promises to be careful in the selection of assassination targets. It is a decision left entirely to him and his designated subordinates. It runs contrary to constitutional guarantees protecting persons accused of crimes. The President can claim that the location of such individuals abroad is the key distinction since courts limit the application of constitutional protections and limitations outside of our border. Yet, we have already seen that the Justice Department argues that other rights can be similarly waived in the country like due process rights and the right to counsel for anyone accused being an enemy combatants. The enemy combatant policy and cases largely eradicated the domestic/foreign distinction used in the past.
Because of his high-visibility status, we were informed of al-Aulaqi’s killing. However, nothing in this policy requires a president to be informed of such assassinations and the congressional oversight committees are widely viewed as rubber stamps for intelligence operations. It is not simply a question of whether a president can order such a killing of a citizen (which Bush also previously ordered), but the circumstances under which such an order can be given. Obama put al-Aulaqi on a hit list many months ago. There is no process, however, to secure any judicial review or to satisfy any showing despite over a year of such targeting. These questions remain unanswered because the Obama Administration has been successful in blocking public interest lawsuits seeking judicial review of his assassination list.
Previously, the Administration succeeded with an almost mocking argument that al-Aulaqi’s family could not file a lawsuit seeking review of the power to assassinate because al-Aulaqi himself should appear to ask for review. Thus, after saying that it would kill al-Aulaqi on sight, the Justice Department insisted that he should walk into a clerk’s office and ask for declaratory judgment. Even if his family were to sue for wrongful death, the Administration would likely use the military and state secrets privilege to block the lawsuit. Thus, the President has the authority to not simply kill citizens but to decided whether they can sue him for the act.
Even if a president has this authority, the existence of the power to kill citizens without any check or balance runs against the grain of the constitutional system. What do you think?
Update: It appears that two U.S. born cleric may have been killed.
Source: Washington Post
Here is also Glenn Greenwald’s piece on the subject.