How Does the President Have the Right to Target for Killing a US Citizen?

Sep 30, 2011 11:25am

How does President Obama have the right to target for killing a US citizen such as Anwar al-Awlaki?

That’s a good question.

As of now, the administration’s legal justification is unclear.

In 2010, then-White House press secretary Robert Gibbs  was asked about how “human rights lawyers were challenging the administration’s assertion that an American citizen can be targeted for killing overseas.  Should Americans worry that if they go overseas, their own government could target them to be killed?”

Said Gibbs: “Let’s be clear about Anwar al-Awlaki, okay?  The United States hasn’t decided that Anwar al-Awlaki is aligned with a terrorist group.  Anwar al-Awlaki has in videos cast his lot with al Qaeda and its extremist allies.  Anwar al-Awlaki is acting as a regional commander for al Qaeda in the Arabian Peninsula.  So let’s not take a tourist that might visit Italy overseas and equate him to somebody who has on countless times in video pledged to uphold and support the violent and murderous theories of al Qaeda.”

Jameel Jaffer, the deputy legal director of the American Civil Liberties Union, today said that his organization believes “that the targeted killing program violates both U.S. and international law. As we’ve seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts. The government’s authority to use lethal force against its own citizens should be limited to circumstances in which the threat to life is concrete, specific, and imminent. It is a mistake to invest the President — any President — with the unreviewable power to kill any American whom he deems to present a threat to the country.”

After Awlaki was designated a “specially designated global terrorist” by the Treasury Department, it became illegal for attorneys to represent him without permission from the Treasury Department’s Office of Foreign Assets Control.

The ACLU and Center for Constitutional Rights were denied the license to represent Awlaki.

The groups sued the Treasury Department and OFAC to grant them the license to represent al-Awlaki. They sought to challenge the White House assertion that it had the constitutional right to kill Awlaki.

In September 2010, the Justice Department filed court papers seeking that the case be dismissed: “To litigate any aspect of this case would require the disclosure of highly sensitive national security information concerning alleged military and intelligence actions overseas,” the Justice department asserted.

And US Judge John Bates threw the case out.

On December 7, 2010 Assistant Attorney General for the Civil Division Tony West said, “We are pleased with the court’s ruling, people need to remember that this really was an unprecedented case in which plaintiffs were asking a court to review military decisions for the leader of a foreign terrorist organization and as we said when we filed this case, if Anwar al-Awlaki wants to access to our court system he ought to surrender to authorities and be accountable for his actions. So were pleased with the legal ruling the court has issued and were pleased that the court agreed with us that it did not need to reach state secrets in order to dispose of this case.”

Needless to say, this unprecedented ruling has been severely criticized – and all the more so today, with the assassination having been carried out.

Writing in Salon today, Glenn Greenwald writes, “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). What’s most amazing is that its citizens will not merely refrain from objecting, but will stand and cheer the U.S. Government’s new power to assassinate their fellow citizens, far from any battlefield, literally without a shred of due process from the U.S. Government. Many will celebrate the strong, decisive, Tough President’s ability to eradicate the life of Anwar al-Awlaki — including many who just so righteously condemned those Republican audience members as so terribly barbaric and crass for cheering Governor Perry’s execution of scores of serial murderers and rapists — criminals who were at least given a trial and appeals and the other trappings of due process before being killed.”

Read the U.S. Case Against Awlaki.

-Jake Tapper and Jason Ryan

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