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.
Roco,
I don’t doubt that the murder was ordered by Obama, I merely stated that the reports I have seen, so far, have not confirmed that. As I mentioned in the same post, if the President approved it, then it was an unconstitutional attack on a US citizen. Your meomory about Bush and Cheney’s illegal actions is selectively short.
@Nal – Exodous 20:13 – Thou shalt not kill.
How many interpretations of this have you seen? Go beyond the law to the legal interpretations and commentaries.
nal,
I want to see how that plays out….I really do…
As we ruminate on this Obama US citizen assassination question, let us wonder why we distract ourselves with such untruths as the rest of the country falls into the crapper. Or did everyone forget about the swath of disaster the for-profit education system is cutting through our country: http://lawblog.legalmatch.com/2011/09/28/for-profit-colleges-facing-federal-scrutiny/
Oro Lee,
I wonder what other “very unique set of circumstances” you’d consider as an appropriate justification for the violation of the Separation of Powers doctrine? The issue isn’t just deprivation of Due Process for the citizen targeted. It’s also the usurpation of the Judicial branch’s power by the Executive.
An armed gunman who has repeatedly threatened the lives of my family breaks into my house in the middle of the night and I shoot him dead. Homicide? You bet. Justified homicide? Ditto. Is the citizenship of the assailant relevant? Nope.
The issue is — given this very unique set of circumstances — whether the continued existence of al-Aulaqi constituted a clear and present danger to the security of the United States and those whom its government is charged with protecting. That is the only legal debate. The rest is logistics.
Executive Order 12333–United States intelligence activities
2.11Prohibition on Assassination.
No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.
http://thelede.blogs.nytimes.com/2011/09/30/american-who-waged-media-jihad-is-said-to-be-killed-in-awlaki-strike/?hp
Just one of the many reasons I won’t vote for Obama. He not only lied about what he’d do to fix the mess Bush created. He made it worse by claiming this extra-judicial and prime facie unconstitutional power.
http://thehill.com/blogs/ballot-box/gop-primaries/184517-romney-jockeys-to-perrys-right-on-foreign-policy
Swarthmore mom
1, September 30, 2011 at 11:05 am
Obama was co-opted by the national security state, and the next president will be too. The train has left the station on this one, unfortunately.
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Swarthmore mom is right. And what’s more, American citizens are being denied due process within our borders, as I type… It’s a process that’s covert, but quite vicious. Will anyone pay attention now? I think that I already know the answer…
“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.”
Yep, blood lust does not make good law.
When the issue of due process comes up, it does not look good for a president to execute someone without there first being a trial to establish guilt or innocence.
The king of Saudi Arabia is not our role model.
This theme is being expanded in a mock trial in London before the British Supreme Court, to determine if polluters who are bringing ecocide, meaning billions killed, can be prosecuted for it.
Professor Turley filed a case, on behalf of congress members, in the U.S. Federal Court against the president for doing Libya without congressional approval.
I might suggest a reading of Executive Order 12333, its various revisions.
In short, “no harm, no foul.”
Glenn Greenwald: The due-process-free assassination of U.S. citizens is now reality
What’s most striking about this is not that the U.S. Government has seized and exercised exactly the power the Fifth Amendment was designed to bar (“No person shall be deprived of life without due process of law”), and did so in a way that almost certainly violates core First Amendment protections (questions that will now never be decided in a court of law).
Is there something ambiguous about “no person?”
http://andrewsullivan.thedailybeast.com/2011/09/the-un-bush.html Andrew Sullivan has a different take on Obama’s actions.
Obama was co-opted by the national security state, and the next president will be too. The train has left the station on this one, unfortunately.
I think we’re beyond slippery slope here…more like a frictionless free fall from President to Emperor. Remove the idea that the assassination target is off shore and located in the US and the premise is is seen it’s true light; murder by fiat.
rafflaw:
the order came from the Chief Executive of the United States. He whacked a US citizen in cold blood. End of story.
Who is next? You, me, Mespo? Because a president doesnt like our bumper stickers? This is really scary stuff, we have become a lawless country.
I think the president needs to be arrested and tried for this action. And Bush and Cheney should be right there with him although they didnt order anyone executed without trial as far as I know.
First of all, the news reports that I have seen have not confirmed that it was a US strike that killed him. However, assuming it was, I would think the family members should try to report the murder to the FBI and to the local authorities. This unconstitutional policy will only be ended by the courts doing their job. I am not holding my breath.
What do I think? I think it’s the return of the Lettre de Cachet.