The Death Of Anwar Al-Awlaki And The Imperial Presidency

Giving the President the unchecked power to kill American citizens raises some serious red flags.

Doug Mataconis · · 45 comments

The death of Anwar al-Awlaki and at least two other high-level al Qaeda operatives in a Predator Drone strike has raised serious questions about the limits of Presidential authority and just how far the President’s war powers extend, especially when we’re technically not in a war:

WASHINGTON — The killing of Anwar al-Awlaki, an American citizen struck on Friday by a missile fired from a drone aircraft operated by his own government, instantly reignited a difficult debate over terrorism, civil liberties and the law. For the Obama administration, Mr. Awlaki, 40, had joined the enemy in wartime, shifting from propaganda to an operational role in plots devised in Yemen by Al Qaeda in the Arabian Peninsula against the United States. Early last year, officials quietly decided that his actions justified making him a target for capture or death like any other Qaeda leader. But a range of civil libertarians and Muslim-American advocates questioned how the government could take an American citizen’s life based on secret intelligence and without a trial. They said that killing him amounted to summary execution without the due process of law guaranteed by the Constitution. That argument was pressed unsuccessfully in federal court last year by the American Civil Liberties Union and Mr. Awlaki’s father, Nasser al-Awlaki, a former agriculture minister and university chancellor in Yemen. A federal judge threw out their lawsuit, noting that the younger Mr. Awlaki had shown no interest in pursuing a claim in an American justice system he despised. On Friday, Jameel Jaffer, the A.C.L.U.’s deputy legal director, said that the drone strike, which killed Mr. Awlaki and another American, Samir Khan, violated United States 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,” Mr. Jaffer said. Robert M. Chesney, a law professor at the University of Texas who specializes in national security law, said he believed that the killings were legal. But he said it was “plenty controversial” among legal specialists, with experts on the left and on the libertarian right deeply opposed to such targeted killings of Americans. The administration’s legal argument in the case of Mr. Awlaki appeared to have three elements. First, he posed an imminent threat to the lives of Americans, having participated in plots to blow up a Detroit-bound airliner in 2009 and to bomb two cargo planes last year. Second, he was fighting alongside the enemy in the armed conflict with Al Qaeda. And finally, in the chaos of Yemen, there was no feasible way to arrest him.

The attack itself should not have come as a surprise. President Obama authorized the assassination of al-Awlaki way back in April 2010, a move that seemed to contrast at the time with the Administration’s policy that terror suspects such as Khalid Sheikh Mohammed should be tried in civilian courts. The move was criticized not only by civil libertarians like Glenn Greenwald, but also by some on the right such as National Review’s Kevin Williamson, who wondered what kind of precedent this kind of an order directed against an American citizen would be setting. When the ACLU and other groups filed suit in Federal Court in an effort to block the targeting of al-Awlaki, the Administration invoked the controversial “state secrets doctrine” to block the lawsuit, a move that the Bush Administration had used several times to block inquiries into detention of suspected terrorists after the September 11th attacks. As Glenn Greenwald commented at the time of this development, if a President can order the targeting of an American citizen without due process and then block any effort by other branches of government to review the decision, then what can’t he do?

Today The Washington Post reports that the Administration had prepared a secret legal memo justifying the targeting of al-Awlaki as a legitimate exercise of the President’s authority:

The Justice Department wrote a secret memorandum authorizing the lethal targeting of Anwar al-Aulaqi, the American-born radical cleric who was killed by a U.S. drone strike Friday, according to administration officials. The document was produced following a review of the legal issues raised by striking a U.S. citizen and involved senior lawyers from across the administration. There was no dissent about the legality of killing Aulaqi, the officials said. “What constitutes due process in this case is a due process in war,” said one of the officials, who spoke on the condition of anonymity to discuss closely held deliberations within the administration. (…) “As a general matter, it would be entirely lawful for the United States to target high-level leaders of enemy forces, regardless of their nationality, who are plotting to kill Americans both under the authority provided by Congress in its use of military force in the armed conflict with al-Qaeda, the Taliban, and associated forces as well as established international law that recognizes our right of self-defense,” an administration official said in a statement Friday.

At first glance, the targeting of al-Awlaki would appear to be cloaked with at least some semblance of legal authority. As with the raid that killed Osama bin Laden and the Predator Drone campaign that started in Yemen this summer, attacks on al Qaeda elements such as al-Awlaki and his companions would appear to be authorized by the Authorization For Use Of Military Force that Congress authorized mere days after the September 11th attacks. That AUMF has never been repealed or modified, and it gave the President authority to go after al Qaeda, its affiliates, and those who shelter them regardless of where they might be located. One could argue that this kind of open-ended AUMF is unwise and possibly exceeds Congressional authority. The time to have that discussion, though, was when the resolution was being debated, not ten years later after the President has acted under its authority while Congress has essentially ceded its role completely and not even conducted the most cursory of reviews. When Congress passed that authorization, they signed us up for a “War On Terror” with no logical end point and they gave the President an exceedingly broad, possibly excessive, amount of authority to conduct that war.r

The question, though, is whether that authority, or any of the President’s powers under the Constitution, does or should include the power to decide on his own when an American citizen not on an active battlefield can be assassinated without any judicial determination that they have done anything to warrant such a sentence.

The answer seems to me to be that, at the very least, granting such authority to the President should make one uneasy. Whether or not foreigners suspected of being terrorists deserve all of the protections of our courts is an issue on which there is, perhaps, some room for debate. As we’ve learned over the ten years of the War On Terror, capturing these men in a foreign country and then taking them to some secure location for questioning, in some cases using torture methods to extract information, is only half the battle. We still have to figure out what to do with them. Treating them like Prisoners of War doesn’t seem to make sense because we’re not engaged in the type of war that’s likely to have any kind of identifiable end (which is the point at which POWs are typically released). The argument against holding trials in civilian courts are well-known, and such trials seem to be rather phony when it’s clear that the Defendants are never going to be released regardless of the outcome. Holding them forever seems wrong as well, because it seems to suggest that there is a class of offenses for which one need not be tried by the state. One of the greatest legal failures of the post 9/11 world has been the failure of our government to find a way to deal with these people.

When it comes to American citizens, though, there doesn’t seem to be any question of how they should be treated. The Constitution sets forth those protections in the Bill of Rights, and the Courts exist As Rick Moran notes, al-Awlaki has never been convicted of any offense against American citizens, or anyone else for that matter. Instead, the President of the United States, along with his advisers, determined that he was a threat, targeted him specifically, and set out to kill him without regard to any of the protections set forth in the 5th, 6th, 7th, or 8th Amendments to the Constitution. And, the American people are cheering the fact:

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. From an authoritarian perspective, that’s the genius of America’s political culture. It not only finds ways to obliterate the most basic individual liberties designed to safeguard citizens from consummate abuses of power (such as extinguishing the lives of citizens without due process). It actually gets its citizens to stand up and clap and even celebrate the destruction of those safeguards.

We’ve already sat back for ten years while the War On Terror chipped away at protections granted under the Fourth Amendment and other provisions of the Constitution. Before that, we sat back and watched while the same thing happened in the name of the War on Drugs. In both cases, it was said that the government needed more power because it needed to keep us safe. Quickly, though, these new powers were used for far more than just their intended purposes. Little has been said, for example, about the fact that many of the enhanced investigation powers granted to law enforcement under the PATRIOT Act are being used more frequently in non-terrorism cases than they are in cases involving actual or suspected terrorism. Now that we’ve set the precedent that due process can take place during a secret closed meeting in the White House Situation Room, are we going to again see the expansion of this new authority?

In his piece over at The Atlantic James Joyner argues that such fears are over-stated:

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.

These points are all well-taken, and also bring up an important point. The killing of al-Awlaki does not, in my opinion, mean that we have to suddenly fear that an American President is going to create a 21st Century version of Nixon’s Enemies List that orders the assassination of American citizens. No doubt, there will be some political paranoids out there who will, and probably already are, arguing that we need to start worrying about just this eventuality. These are the same people who worried about men in black helicopters in the 1990s, and who seem to have a quadrennial fear that the sitting President, whoever he happens to be, is going to declare Martial Law and cancel the elections. Could those things happen in America? Probably, but it would have to be an America far different from the one we’re living in today.

At the same time, though, there is something about the idea that we just need to trust the President in situations like this. Even if the man or woman who sits in the Oval Office isn’t likely to go off half-cocked in the manner some of the paranoids might fear, that doesn’t mean that any person should be trusted with the kind of life and death power over American citizens that the al-Awlaki killing seems to have now granted to the Executive Branch. Moreover, as Conor Friedersdorf notes, we already know that the government has been wrong in the past, even innocently wrong. We also know that our intelligence services have been glaringly wrong in the past. Knowing that, the idea that the President now has the authority to sentence someone to death without due process simply by reaching the conclusion that he or she is a terrorist is deeply concerning to say the least.

The other problem is that there really are no checks and balances on this new authority granted to the President. When al-Awlwaki’s family joined with civil liberties groups to try to challenge the President’s assassination order, the Administration advanced a legal theory that essentially said the courts have no right to review Presidential decision-making in these situations. Last December, the Federal Judge hearing the lawsuit dismissed the case, essentially buying the Obama Administration’s arguments and effectively stating that there is no judicial forum in which such an order could ever be reviewed. For political reasons, it’s unlikely that Congress would even attempt to do anything about a Presidential assassination order, a conclusion supported by such things as the history of Congressional deference to the President in foreign affairs and its unwillingness to enforce the War Powers Act. Indeed, it was Congress’s decision to grant the President virtually unlimited power in the wake of the September 11th attacks that arguably provides President Obama with at least a veneer of legal authority in the killing of al-Awlaki. Given this, there is really no hope that either of the other branches of government would ever be a sufficient check on a Presidential decision made in secret, and asserted to be exempt from review by an other authority.

In the absence of any such checks and balances, President Obama has continued the tradition that began at least with the Presidency of Woodrow Wilson, and probably much earlier, of asserting increasingly large amounts of authority for the Executive Branch. With very few exceptions, these assumptions of power have never been challenged, rarely questioned, and almost never scaled back. Barack Obama’s own Presidency is an excellent demonstration of this. After campaigning for the Senate and the White House as a critic of the Bush Administration’s policies in the War on Terror and Iraq, he came to office and has essentially continued most of the very policies he was criticizing. The power of the Presidency doesn’t seem so bad, I guess, when it’s your side that’s exercising it. The problem, as conservatives have found under Obama and liberals will likely find when the next Republican is elected President, is that the next guy will have those same powers and he’s likely to use them in ways you don’t like. In the end, though, it’s not a matter of who exercises the power, but whether the power should be exercised at all.

In a statement released yesterday, former New Mexico Governor and Republican Presidential candidate Gary Johnson said the following:

The protections under the Constitution for those accused of crimes do not just apply to people we like — they apply to everyone, including a terrorist like al-Awlaki. It is a question of due process for American citizens.” “I understand that laws may allow these decisions by the President and other officials in regard to al-Awlaki, and I do not in any way want to diminish the skill and dedication of our CIA and military. But, at the same time, it must not be overlooked — and thoughtfully examined — that our government targeted a U.S. citizen for death, and carried out that sentence on foreign soil. To my knowledge, that is a first, and a precedent that raises serious questions. “If we allow our fervor to eliminate terrorist threats to cause us to cut corners with the Constitution and the fundamental rights of American citizens, whether it be invasions of privacy or the killing of someone born on U.S. soil, I could argue that the terrorists will have ultimately won.

That last statement is true of all the powers that have been assumed by the Federal Government in the ten years since 9/11, but there seems to be something different this time. The facts of the al-Awlaki case aside, the question we really need to be asking ourselves now is whether it’s a good idea that Presidents now have this new, unilateral and largely unchecked, authority to decide that an American citizen is a “terrorist” and must therefore die. Weighing everything in the balance, I think the answer is clearly no.