The Thorniest Question: When Can a President Order an American Killed?

A bigger worry than rogue presidents killing Americans willy-nilly is that Americans don't question their leaders on national security

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Anwar al-Awlaki, a US citizen alleged to be a senior al-Qaeda figure, was reportedly killed this morning in Yemen by an American drone strike. President Obama reportedly authorized his assassination more than two years ago and several unsuccessful attempts had previously been made.

This raises troubling questions about the limits of presidential power.

The 5th Amendment to the Constitution explicitly declares that "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; nor shall any person . . . be deprived of life, liberty, or property, without due process of law." Awlaki, who was not a member of the U.S. armed forces, was not afforded these rights.

Glenn Greenwald, a constitutional lawyer and Salon columnist, notes: "No effort was made to indict him for any crimes (despite a report last October that the Obama administration was 'considering' indicting him). Despite substantial doubt among Yemen experts about whether he even has any operational role in Al Qaeda, no evidence (as opposed to unverified government accusations) was presented of his guilt. When Awlaki's father sought a court order barring Obama from killing his son, the DOJ argued, among other things, that such decisions were 'state secrets' and thus beyond the scrutiny of the courts. He was simply ordered killed by the President: his judge, jury and executioner."

Awlaki's killing raises troubling questions about the limits of presidential power.

Awlaki, however, is no ordinary criminal defendant. He is accused of being a senior leader in a terrorist organization that has attacked the United States and its citizens on numerous occasions. He has been "linked" to both Major Nidal Malik Hasan, the Fort Hood shooter, and Faisal Shahzad, the would-be Times Square bomber. And he was residing in Yemen in the midst of an al-Qaeda stronghold.

Had his Yemeni parents not been working in New Mexico at the moment he was born, few would question the authority of the U.S. government to conduct this operation. Since they were, however, Awlaki is a United States citizen and entitled to the same protections as any of the rest of us. What, precisely, those protections are is not quite clear in this case.

In the 1942 case Ex Parte Quirin , a unanimous Supreme Court upheld the right of President Roosevelt to try eight German saboteurs, one of whom had American citizenship, in a military tribunal. They note that "one of the objects of the Constitution, as declared by its preamble, is to 'provide for the common defense'" and note the many powers given to Congress as part of their authority to declare war and raise an army and navy and to the president as commander-in-chief. Further, they declared: "Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war."

Of course, al-Qaeda is not a country, which makes the unending global war on terror (or whatever it is we're calling it these days) murkier than World War II. But the 2006 case of Hamdan v. Rumsfeld, Boumediene v. Bush , and others have established the precedent that the post-9/11 Joint Resolution authorizing the president to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided" the attacks constitutes a state of war. But they also held that certain due process rights are owed to those being held as enemy belligerents -- even those who aren't citizens of the United States or held on American soil. Further, while recognizing the need to "accord proper deference to the political branches" in securing the nation against terrorists, they held that "security subsists, too, in fidelity to freedom's first principles, chief among them being freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers."

There's no question, therefore, that, if the U.S. government had Awlaki in its custody, he would be entitled to due process under the Constitution. Alas, that's not the situation that obtained here. He was instead, to the extent it can be said to exist in our murky state of hostilities with al-Qaeda, on the battlefield. In this case, then, the Quirin principle that Awlaki, regardless of his citizenship, became an enemy belligerent by his association with al-Qaeda would seem to obtain. And, again, if he were not an American citizen few would question his targeting.

This, of course, gives awesome power to the president and puts us on a very slippery slope. If the president can order the assassination of Awlaki simply by declaring him an enemy combatant, who can't he kill?

Presumably, he would lack the authority to order the killing of anyone, whether a U.S. citizen or not, on American soil. Practical considerations would likewise constrain him from having someone killed in London, Paris, or Stockholm. But alleged bad guys living in failed states or otherwise not subject to easy extradition would seem to be fair game.

What's to prevent a president from simply declaring Americans he doesn't like for whatever reason "enemy combatants" and having them murdered? The same thing that prevents him from launching nuclear weapons, launching military attacks, and otherwise abusing the incredible power that comes with that office: the system, such as it is.

First, and perhaps most importantly, the road to the Oval Office goes through the American people. The grueling two-year campaign cycle serves as a powerful vetting tool, weeding out candidates without the character, judgment, and temperament to sit in the big chair. It's not a perfect safeguard, of course, and there's room to quibble over the quality of a few who made it through.

Second, we have a system of checks and balances. Congress has the power to force its way into the decision-making process in cases like this one, where action is planned over months and even years. In the Awlaki case in particular, Capitol Hill has had plenty of time to insist that the Obama administration lay out its case for action. Either they've done that (behind closed doors in the appropriate national security committees) and been satisfied or they've abrogated their responsibility. Further, lacking such advance warning, Congress can certainly exercise its oversight powers after the fact, calling the administration on to the carpet. Its members have enormous power in this regard, up to and including the ability to impeach the president.

Additionally, the courts also have a significant role to play in safeguarding the Constitution. While they've historically been deferential to elected policy-makers on matters of national security policy, they have, as seen in Hamden, Boumediene, and several other cases, been willing to limit their prerogatives, even when applied to unsympathetic defendants, in order to defend larger principles.

Ultimately, there's far less reason to be concerned about the prospect of rogue presidents ordering Americans killed willy-nilly than that Americans will stop questioning actions taken by their leaders in the name of national security.

Image credit: REUTERS/Ho New

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James Joyner is an associate professor of security studies at the Marine Corps Command and Staff College and a nonresident senior fellow at the Brent Scowcroft Center on International Security at the Atlantic Council.

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