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.
Glenn Greenwald on this topic:
@mespo727272 – re: Comments to Oro Lee and Psycho – Thus having only proved yourself to be an effete, intellectual snob. Dammit man, get out of the classroom, put down that book, and live in the world. I’d say, “Trash that marble bust and get a real avatar,” but I think it fits you perfectly, my friend.
I’m amazed at how most of the responses on this article seem almost paranoid. You must think so highly of yourselves to think you’re an “enemy of the state” and “clear and present danger.” Whatever you do, don’t do it on my behalf.
Back to the original issue. The man was a bug, and he got squashed. Like a doomed cockroach, the last bit of daylight he saw was a flash, followed by a pressure wave, and then (unknown to him as his “innards” had turned to jello) an incredible burst of heat. Got bless the bastard who’s hand was on the joystick.
And by the way, when the others of you go after Obama (not that I mind) and Bush, go after Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, Reagan, Clinton, their National Security Councils, the NSA/CIA/DIA the House/Senate Intelligence Committees, the JCS, Congress as a whole “und so weiter, und so fort”. I think the good professor mischaracterized it as a “unilateral labeling,” as much analysis and many decisions were made in the process. It does come down to the President’s sole decision and within his power, and I find no fault, morally or politically, with it.
Roco:
He’s got the dearth of law and deference that the courts afford to a Commander-in-Chief in war time. Typically the courts let the President act extra-constitutionally during times of war and then clean up the mess when the war is over. See In Ex Parte: Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861), and its aftermath. Justice James Wayne let out the secret, “It is my opinion,” Wayne ruled, “that Congress has constitutional power to legalize and confirm executive acts, proclamations, and orders done for the public good, although they were not, when done, authorized by any existing laws.”
Psycho:
I really think that my works predate my existence.
mespo727272,
Your works predate my existence.
Mespo:
what is the law behind his ability to do this? There has to be case law from way back. American citizens fighting for the enemy is not new. How was it handled in, say, the 1940’s during WWII?
Psycho:
“If it were not Obama this man would be a live. He is a(n) (alleged) terrorist and killer — (and an American with certain guaranteed rights that no President can take away from him on a whim.)”
There, I fixed your sentence for you.
Surely this could not be the first time a President has ordered the killing of an American citizen. I’m just jaded enough to believe this sort of thing has happened before, an assassination directed by the President, or at least by one of his operatives. Can someone name suspects?
If it were not Obama thi man would be a live. He is a terriost and killer.
The powers that be have run amuck.
We’re coming to Washington tomorrow to begin the process of righting wrongs.
#OccupyDC starts Oct 1 at 9am in McPherson Square.
http://www.occupytogether.org/events/northeast/untitled-event-1/
With direct-action demonstrations taking place on the 6th from Freedom Plaza.
october2011.org
“I think it’s the return of the Lettre de Cachet.” *(mespo)
Yep … CIA style … “In the law of the ancien régime, the lettre de cachet was an expression of that exercise of justice that the king reserved to himself, independently of the law courts and their processes, just as he reserved the right to grant lettres de grâce, or pardons, to persons who had been convicted by the courts. During the French Revolution the use of lettres de cachet was abolished by the Constituent Assembly in March 1790.”
I swear to god, mespo, there’s a once lowly CIA analyst who now enjoys a pleasant, above ground, office-with-a-view simply because he/she told his superiors shortly after the 2004 elections, “There’s this new, rather obscure senator, a former community activist from Chicago, who, according to all my analyses, could be our perfect replacement for Junior in 2008. One of our recruiters should take him to lunch.”
I’m only half-joking.
mahtso1, September 30, 2011 at 12:36 pm
“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?”
I think that (1) if the President has this authority, it must be consistent with the constitutional system; (2) the President’s action is allowable under current conditions because we have a living constitution; and (3) there is a check/balance in that the President is always subject to impeachment.
————————————————-
well that’s a relief….as long as we can send him to his on his merry way after doing the deed….impeachment is so…….FINAL.
if we can know where they are enough to kill…..why can’t we just arrest the ALLEGED dirty deed doers and do a legitimate dance of justice????
just wonderin’…………….you know…….like THE REST OF THE WORLD!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Do you and Ron Paul normally agree? 🙂
http://firstread.msnbc.msn.com/_news/2011/09/30/8059346-paul-condemns-assassinating-al-awlaki
In wartime, the ends justify the means, you know. Seems I heard that before somewhere but it was in the original German then, “Der Zweck heiligt die Mittel.
In blog warfare too, especially when conducted against Koch’s conservative army of sockpuppets.
Nal, thanks for the link to the Executive Order. I was just thinking about “Wasn’t it made illegal for the CIA to assassinate others”?
I wonder when they got rid of that?
FWIW:
http://www.washingtonpost.com/ac2/wp-dyn/A63203-2001Oct27?language=printer
CIA Weighs ‘Targeted Killing’ Missions
Administration Believes Restraints Do Not Bar Singling Out Individual Terrorists
By Barton Gellman
Washington Post Staff Writer
Sunday, October 28, 2001; Page A01
Armed with new authority from President Bush for a global campaign against al Qaeda, the Central Intelligence Agency is contemplating clandestine missions expressly aimed at killing specified individuals for the first time since the assassination scandals and consequent legal restraints of the 1970s.
Drawing on two classified legal memoranda, one written for President Bill Clinton in 1998 and one since the attacks of Sept. 11, the Bush administration has concluded that executive orders banning assassination do not prevent the president from lawfully singling out a terrorist for death by covert action. The CIA is reluctant to accept a broad grant of authority to hunt and kill U.S. enemies at its discretion, knowledgeable sources said. But the agency is willing and believes itself able to take the lives of terrorists designated by the president.
Clinton authorized covert lethal force against al Qaeda beginning in 1998, and The Washington Post reported last Sunday that Bush has signed a more encompassing intelligence “finding” that calls for attacks on newly identified weaknesses in Osama bin Laden’s communications, security apparatus and infrastructure.
Bush’s directive broadens the class of potential targets beyond bin Laden and his immediate circle of operational planners, and also beyond the present boundaries of the fight in Afghanistan, officials said.But it also holds the potential to target violence more narrowly than its precedents of the past 25 years because previous findings did not permit explicit planning for the death of an individual.
…
mahtso:
Your mind is perfectly circular: (1) If the President has the authority it is because the President has the authority. (2) Because our Constitution is flexible, it can be flexed to any shape; (3) There is a check-balance because he can be impeached after doing the deed. Interesting interpretation of the word “check.”
rafflaw:
Apparrently his assassination was authorized by Obama in April 2010 per the article. It’s a fair assumption that the drone attack targerted him and was specifically autthorized by POTUS. In wartime, the ends justify the means, you know. Seems I heard that before somewhere but it was in the original German then, “Der Zweck heiligt die Mittel.”
“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?”
I think that (1) if the President has this authority, it must be consistent with the constitutional system; (2) the President’s action is allowable under current conditions because we have a living constitution; and (3) there is a check/balance in that the President is always subject to impeachment.
Oro Lee:
You’re quite the classicist. From the Code of Justinian: “Rex solutus est a legibus”, or “The king is released from the laws.” As you say, the rest is logistics: Who will the king kill, imprison, or banish next, how will he do it, and why will he do it. Boehner is probably not sleeping so well tonight. All this puts us squarely in 18th Century Paris, pre-Revolution. Do you know how to curtesy?