Did Obama Just Assassinate A U.S. Citizen? Aulaqi Killing Raises Questions Over Presidential Powers

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.

119 thoughts on “Did Obama Just Assassinate A U.S. Citizen? Aulaqi Killing Raises Questions Over Presidential Powers

  1. mespo7272721, October 1, 2011 at 1:08 am

    Junctionshamus:

    “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 surely do live in the world and if people like you get their way, it won’t be worth living in.”~Mespo

    Thank you Mespo, for your insight , for your work, and for your staunch presence of mind, spirit and body.
    (one of my favorite movies btw….)

  2. AY:

    They did. They took only written evidence against nobles (whom the judges of the law courts were said to fear), met in secret, and dispensed justice using equitable principles instead the processes of law. They eventually became an appendage for the king in persecuting his political opponents.

  3. Does this strike anyone curiosity about the English Star Chamber….King Edward ring any bells….about the mid 17th century….Like right before…or about the time the Pilgrims came to the US….The Star Chamber court system was established….Seems…George…reestablished it….and Obama is living it….

  4. What is lost in the turmoil of emotion is the meaning of due process of law“.

    If we are talking about a capital offense, or otherwise infamous crime”

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger” (Fifth Amendment, emphasis added)

    “No person” does not seem to limit it to citizens, but there is no dispute I know of that the defendant was a US citizen. So we can conclude this refers to the defendant.

    “held to answer” … this would seem to indicate you can’t begin the process unless and until the information, allegations, and evidence is first presented to a grand jury and they return a true bill, indictment.

    “except” … if the person is in the US military the military can handle it, so no exception here.

    “nor shall any person … be deprived of life … without due process of law …” (Fifth Amendment)

    The definition of “due process of law” usually begins by asking “what process is due”.

    “Due” means it is a debt owed by the federal government to every person. It is a debt the government must pay, and what must be paid is the “process”.

    What process is owed? “The [due process] clause also promises that before depriving a citizen of life, liberty or property, government must follow fair procedures. Thus, it is not always enough for the government just to act in accordance with whatever law there may happen to be. Citizens may also be entitled to have the government observe or offer fair procedures, whether or not those procedures have been provided for in the law on the basis of which it is acting. Action denying the process that is “due” would be unconstitutional.” (Cornell).

    Lets be real, this is elementary. An indictment followed by a jury trial was due, but was not paid.

    The plutocracy a.k.a. the wartocracy, to which the office of the president and congress now bow down to, in place of the supreme law of the land, the Constitution, is sending us a message.

    That message is we will kill you if we consider you to be a threat.

    This brings to mind the Star Trek episode about The Borg. Crew members were mystified when they boarded the Borg ship but were not attacked by Borg automatons. The Borg went right past them doing their duties because the Enterprise crew members were not seen as a threat since they were puny by comparison.

    Wee the people are not a threat to the masters of war. The problem is that they will become more and more paranoid until we may all be considered a threat.

  5. Confused Catholic:

    “Since when is killing justified?”
    *********************

    In self-defense when faced with deadly force. In defense of others in the same circumstances. When called upon by legitimate governmental authority to defend one’s country though no personal threat is made to you and yours. In stopping a felony in progress, and if Catholic history be any guide, when the faith is challenged by heresy. That last one is a little suspect.

  6. Junctionshamus:

    “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 surely do live in the world and if people like you get their way, it won’t be worth living in. I love guys like you for whom the ends always justify the means; the law is just an obstacle to overcome as you slay your demons. I’m also quite surprised that a member of the Colorado Defense Bar needs to be reminded of the Constitutional protections available to all Americans but so be it. JT laid it out nicely for this Republican in legal clothing. I have nothing to add, except maybe that you should take the time to read those marble reliefs above your courthouse door. Once will undoubtedly say “Fiat justitia ruat caelum,” –“Let justice be done though the heavens fall.” I’ll keep the avatar for a while, thank you. It might remind you were a lawyer representing ordinary citizens once before you were a stooge for the power elite.

    I appreciate your German take on things — seems appropriate.By the way, I suggest you get your head in a book once in a while. Here’s a little scene from one that may interest you about giving your devil the beneift of the law you have solemnly sworn to uphold even as you “live in the real world.” An American deserves no protection from his government when not in the country? No trial? No due process? Guilt presumed because a flawed government’s intelligence service says he is. Do you hear what you are saying? Probbaly not–you did say you were a Republican, didn’t you:

  7. From HuffPo: “A Justice Department spokeswoman declined to comment. The administration officials refused to disclose the exact legal analysis used to authorize targeting Aulaqi, or how they considered any Fifth Amendment right to due process.”

    Dejavu all over again. Why not disclose? A crappy piece of legal fiction from a suck up lawyer like Yoo know who?

    One possibility. Apparently Yemeni authorities have been providing U.S. officials with information on Al-Queda opeatives. Was the hit legal under Yemeni law? Did Yemen ask (was bribed into asking) the US to carry out the hit? A confidential request?

  8. If we extend the protection of the constitution to the whole world it would mean that rather than killing enemy soldiers in a combat situation, we would need to capture and try them all.

    Nope. It would mean that in a combat situation, where someone’s shooting at you, you can shoot back. Once the shooting starts, it’s reasonable to stop attempting to capture.

    That’s not what happened here.

  9. “If you think you can explain what we should be doing in lieu of killing Terrorists , please do and I hope you can help me sort out my feelings and opinions.”

    terror \ˈter-ər, ˈte-rər\, n.,

    1: a state of intense fear
    2a : one that inspires fear : scourge b : a frightening aspect c : a cause of anxiety : worry d : an appalling person or thing; especially : brat
    3: reign of terror
    4: violent or destructive acts (as bombing) committed by groups in order to intimidate a population or government into granting their demands

    Terrorists, unless they are state sponsored, are nothing more than common criminals no different than the members of any criminal organization. They should be hunted down, arrested, tried in open court and if found guilty either imprisoned for a term up to and including life or subject to the death penalty as the law allows. If they are killed resisting arrest, that is another matter, however, these people are not soldiers. They are by in large civilian criminals and as such should be processed through our existing criminal justice system. The only reason the suspected terrorists being held in Gitmo right now aren’t on trial is Congressional interference in holding the funds hostage required to move them and hold them stateside pending trial. We have a mechanism for dealing with criminals. We should be using it instead of waging war on a noun.

  10. Give it time, the President’s designee will end up being some Division Chief in a 3rd level component of a security agency no ones ever heard of signing off on the assassination of some mid-level organizer of a G20 protest living in Illinois. Or the Web-manager of the blog set up to publicise it. That’s where all totalitarian governments end up. With a perpetual war characterized by moving goalposts for success, you never run out of enemies.

  11. Well, this presents a problem. If we extend the protection of the constitution to the whole world it would mean that rather than killing enemy soldiers in a combat situation, we would need to capture and try them all. That doesn’t seem very practical or neccesary. Should we be captuing all AlQueda members and trying them here? Should we just stay home and only respond to direct attacks? Or not at all.
    In a perfect world, their would be no war or terrorist attacks. Once a foriegn citizen has attacked Americans or engaged in terrorist acts in the name of a military group whether they represent a state or not, they have denyed Americans their rights.
    I don’t think that a declaration of war should be required to protect America from organizations like Al Queda.
    I admit to alot of confused feelings about this problem. If you think you can explain what we should be doing in lieu of killing Terrorists , please do and I hope you can help me sort out my feelings and opinions.
    I agree with extending protection to foreign peoples who are not dedicated to attacking us but whenthey use violence against us, my mind blurrs to gray and I can’t seem to settle on a answer

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