I wrote about Anwar al-Awlaki two times before he was killed and two times after he was killed, each time arguing that the Obama administration should be forced to submit their evidence to a court before they kill an American citizen. It appears that the president agrees with me, at least to the degree that he isn’t satisfied with the process used for Awlaki.
This week, I authorized the declassification of this action, and the deaths of three other Americans in drone strikes, to facilitate transparency and debate on this issue, and to dismiss some of the more outlandish claims. For the record, I do not believe it would be constitutional for the government to target and kill any U.S. citizen – with a drone, or a shotgun – without due process. Nor should any President deploy armed drones over U.S. soil.
But when a U.S. citizen goes abroad to wage war against America – and is actively plotting to kill U.S. citizens; and when neither the United States, nor our partners are in a position to capture him before he carries out a plot – his citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a swat team.
That’s who Anwar Awlaki was – he was continuously trying to kill people. He helped oversee the 2010 plot to detonate explosive devices on two U.S. bound cargo planes. He was involved in planning to blow up an airliner in 2009. When Farouk Abdulmutallab – the Christmas Day bomber – went to Yemen in 2009, Awlaki hosted him, approved his suicide operation, and helped him tape a martyrdom video to be shown after the attack. His last instructions were to blow up the airplane when it was over American soil. I would have detained and prosecuted Awlaki if we captured him before he carried out a plot. But we couldn’t. And as President, I would have been derelict in my duty had I not authorized the strike that took out Awlaki.
Of course, the targeting of any Americans raises constitutional issues that are not present in other strikes – which is why my Administration submitted information about Awlaki to the Department of Justice months before Awlaki was killed, and briefed the Congress before this strike as well. But the high threshold that we have set for taking lethal action applies to all potential terrorist targets, regardless of whether or not they are American citizens. This threshold respects the inherent dignity of every human life. Alongside the decision to put our men and women in uniform in harm’s way, the decision to use force against individuals or groups – even against a sworn enemy of the United States – is the hardest thing I do as President. But these decisions must be made, given my responsibility to protect the American people.
Going forward, I have asked my Administration to review proposals to extend oversight of lethal actions outside of warzones that go beyond our reporting to Congress. Each option has virtues in theory, but poses difficulties in practice. For example, the establishment of a special court to evaluate and authorize lethal action has the benefit of bringing a third branch of government into the process, but raises serious constitutional issues about presidential and judicial authority. Another idea that’s been suggested – the establishment of an independent oversight board in the executive branch – avoids those problems, but may introduce a layer of bureaucracy into national-security decision-making, without inspiring additional public confidence in the process. Despite these challenges, I look forward to actively engaging Congress to explore these – and other – options for increased oversight.
I very much prefer the judicial authority to the oversight board. We don’t need a real-life death panel deciding the fate of U.S. citizens. We need to protect American citizens from any process whereby they can be killed by their government without even one judge signing off on it. There are no serious constitutional issues here except people’s constitutional right to not be killed by their government without any due process. That’s for U.S. citizens. As to the non-citizen targets of lethal action, I don’t see why the judicial branch needs to be involved since it would tend to create a encroach on executive power. I am encouraged, however, that here, too, the president is not satisfied with the status quo and actually wants to give away some of the authority and discretion he has had to make these kinds of decisions.
I’m impressed that President Obama is even at least open to the idea of handing back some Presidential powers that have been “handed-down” to him by earlier Presidents.
And I believe he’s being sincere.
And I also like that fact that he didn’t come up with a Cheney & W-like way that something HAS to be handled, “My way, or the highway,” and wants Congress to do the right thing, and discuss where this “court” should be placed.
Me?
I’d prefer it rest with some Senators and Congress members.
But, under current circumstances, with the naked partisanship on the Republican side, I realize that’s not possible – because today’s Republican would only want to do what’s worse for a Democratic President, no matter how much damage is done to the country there may be, by doing that.
I’m starting to like resident Obama more and more – and I really liked him the first time he came across my radar screen, in that speech he gave at the ’04 Democratic National Convention – I’d HEARD OF him before, but I’d never HEARD HIM, before.
If nothing happens, and things continue to improve, he’ll go down as one of the best Presidents, ever.
Of course, there’s a lot that can happen between now, and Election Day in 2016.
And Republicans will be hard at work, trying to their best, to make this country worse.
I just hope he and his family stay safe.
He’s taking on a lot of very rich and powerful people.
There are things I tolerate because our president is Barack Obama and I trust him. I don’t always agree with him, but I do trust him.
Obama is clearly looking ahead to when he is no longer president and wants to get things in order. I am so glad to see it – I really like the direction he is taking on all of this.
I think your interpretation of constitutional due process rights has no basis in the actual document. the fifth amendment makes no reference to citizenship. It makes it quite clear that non citizens have exactly the same right not to be killed by the US Government as citizens.
The Fifth amendment (my emphasis)
Amendment V
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 subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Sorry for the long quote, but really, given the magic of html and http, claims about the constitution should at least include links to the text.
It is not completely obvious how the fifth amendment is consistent with the possible declaration of war discussed in the main body of the Constitution (to me the distinction to be whether the person is in custody or can be taken prisoner — if not common law killing in self defence may be allowed if there is an imminent risk that the person would kill someone else if not killed)
It is completely clear that the first congress made no distinction based on citizenship and instead made it totally clear that the amendment apply to non citizens too. This is also true of the 6th amendment which begins “In all criminal prosecutions, the accused” again making it clear that citizens and non citizens have exactly the same rights.
Well, you are not representing my interpretation accurately.
When we identify a cell of terrorists who are building bombs to place on civilian aircrafts and we cannot get the host government to act or reasonably arrest the terrorists, we have the right of self-defense to attack those terrorists without having to go to a judge.
Obama is suggesting that perhaps we should go to a judge or perhaps we should have an independent board, and I support that if we are talking about people who are clearly not in a traditional battlefield. But it isn’t constitutionally required so long as there is some congressional authority for it.
What I’m saying is that an American citizen deserves more protection that that.
To put it another way, if a U.S. citizen had fought against us on D-Day, no one would expect us to talk to a judge before we shot back at him.
But if a U.S. citizen was sitting in a Havana cafe on D-Day with a German intelligence officer perhaps talking about our coastal defenses, we shouldn’t have been able to drop a bomb on his head without presenting evidence to a judge. How about the German, though?
While the due process clause of the fifth amendment speaks of persons, not citizens, I think that its application has been held to be those “persons” within the US or its territorial control. This was the key issue in the first Guantanamo cases if I remember right.
Unfortunately the big constitutional issue here involving drones is the absurd commander in chief power, which the militarist right demands to mean untrammeled power by the prez to do anything with the military, with no other branch possessing any legitimacy. That’s the basis for the the (rightwing) objection to a court reviewing drone targeting decisions. And all the Congress can do is declare war and pay in the “conservative” view of things.
Yeah, but…
What if that American citizen…and the entire opposition to American economic imperialism on any and every level…is morally and spiritually correct? Until such time as Barack Obama states clearly and unequivocally that the U.S. has been criminally at fault in its foreign policies for at least 50 years and that the counterfeit buck we have been passing for that entire 50 years…the “protectors of freedom” and so on…stops at his desk immediately, then anything else that he says is just so much bullshit designed to acquire and maintain power.
“Submit evidence to a court???”
Which court?
Which court in the United States is not predicated on preserving that line of American exceptionalist bullshit?
C’mon.
Give me a break.
Yes, it is his duty to protect American citizens from their enemies. But his larger duty…one that he is not even referencing let alone doing anything about…is to stop making the enemies in the first place. As soon and he moves strongly in that direction I will stand in opposition to his wimpy, media-savvy political quarter measures and anyone…including you, Booman…with an ounce of brains and the remnants of a sliver of morality ought to do the same thing.
It’s really about practicality. We cannot maintain our fictional stance in this rapidly arming and equalizing world. It’s that simple. We gonna lose eventually because we will be outnumbered and outgunned by our enemies. It’s time to back offa the rest of the world’s feed trough, set to work on our own problems and establish Fortress America against those who would fuck with us.
Instead of “Don’t tread on me” maybe our dual messages oughta be “We will no longer tread on you” and “Fuck with the bull, you get the horns.”
That’s a speech I await with bated breath.
Until then…sigh…I guess I’ll just have to catch a breath here and there.
Later…gotta go to work on the underbelly of the American culture.
Good luck.
You gonna need it.
AG
The practical challenges of setting up reviews is huge, but at least it is on the agenda now.
This is the bit from the speech highlight that meant the most to me. This needs to be the goal:
Obama’s ‘continuously’ is doing a lot of heavy lifting there. Apparently continuous is the new imminent. (Though I don’t have a problem with a president ordering the execution of a US citizen who poses an imminent threat–after he gets approval from some sort of judicial oversight.)
Also, Obama’s concerned about raising ‘serious constitutional issues about presidential and judicial authority’ in re. killing US citizens, no? Maybe I’m reading it wrong, but isn’t he defending the presidential authority to kill citizens, here? Isn’t his ‘due process’ not ‘judicial oversight’ but ‘due process of executive fiat?’
Also, why shouldn’t a president deploy armed drones over US soil? I mean, where does that fit in philosophically with the rest of it? If a US citizen is actively killing US citizens on US soil, why should he have ‘a shield’ from armed drones? I appreciate that Obama’s drawing lines, but they seem largely arbitrary–at least, he could use precisely the same arguments to explain why a president should deploy armed drones over US soil.
In terms of the 5th amendment, doesn’t the question revolve around “except in cases arising … when in actual service in time of War or public danger.” So the argument is about what comprises ‘public danger,’ no?
apply within the borders of the US. They do not outside of it.
You cannot deprive a citizen of his life without due process.
The line is already drawn – by the Constitution.
You’re saying that you can deprive a citizen of her life without due process outside the borders of the US? I’m missing something.
Is ‘due process’ a constitutional term? Or is ‘due process’ a phrase that might mean judicial oversight but might mean executive directive?
because the Constitution’s jurisdiction only applies to US Territory.
Due Process is defined in the 5th Amendment:
“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 subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”
You will not it says person, not citizen.
Right, but isn’t it binding on the US government, not just in US territory?
I mean, you’re saying the constitution is fine with the government deciding to whack me the minute I cross the border into Canada?
Maybe I’m reading it wrong, but isn’t he defending the presidential authority to kill citizens, here?
No. From the speech:
Yes, but the question then becomes, What does ‘due process’ mean?
Is it something that happens exclusively within the executive branch?
Sometimes, “due process” is something that occurs within the mind of a single police officer responding to an active shooter.
The point is, there is nothing in the speech in which Obama proposes anything but the ordinary understanding of when lethal force is authorized against people in the US, while he offers specific renunciations of what you asked about.
Obama has now given a major speech where he lays out a major national problem—the continuing status of our War on Terra–and invites the nation to behave as though they were mature adults, learning about the issues and thinking about rational approaches, including alternate approaches.
That would be fine if we were a serious people, with a functioning government and responsible elected officials, but we aren’t. We especially aren’t as a result of a braindead, vicious and juvenile political movement–“conservatism”–which will only move to exploit this attempt at a serious discussion into manipulation, distortion and lies for political advantage, blatted 24/7 by their Noise Machine. (Assuming they can stop bloviating about their phony “scandal” line-up for a few minutes.)
Hence there can’t really be a “discussion” or debate—especially not in the Do-Nothing Repub Congress–about the future of of our War of Terror, or how to responsibly utilize drones by our military/intelligence complex. Because the Repubs have no use for actual governing and reform, only playing politics to their political advantage.
That’s the real issue and the real problem, on every front, from al Qaeda to the global warming. The actual issues concerning the War on Terra could be rationally resolved, based on expert advice. But we don’t have a rational “partner” in the discussion. Sort of like what the Palestinians are faced with in Israel….
why people have so hard of a problem understanding that the 4th and 5th Amendment Guarantees do NOT depend on citizenship – they depend on jurisdiction.
There is a tremendous amount of confusion about this – the standards of probable cause do not depend on whether you are a citizen. Similarly, your rights OUTSIDE of US Jurisdiction are no greater or less whether you are or are not a citizen.
I absolutely believe there should be a law that request independent review of killing a US Citizen who is fighting for the other side if feasible.
But that has nothing to do with the rights under the Fourth and Fifth Amendment.
I’m still confused!
why people have so hard of a problem understanding that the 4th and 5th Amendment Guarantees do NOT depend on citizenship – they depend on jurisdiction.
Seconded.
Meanwhile, you also see exactly the opposite mistake made when it comes to addressing who can be legitimately targeted with military force. People use the terms “on the battlefield” vs. “far from any battlefield,” when the Geneva Conventions clearly define “privileged” persons vs. “unprivileged persons” based on status, not geography.
Obama gets props for even broaching this discussion, but there’s still a huge problem. When he says that potential US citizen targets deserve “due process,” his administration has already argued that “due process” does not need to mean “judicial process” – it can be three guys in a room, deciding what to do, before one of them pushes a launch button. Or one guy. So long as there’s a “process,” transparent or not, involving actual evidence or not, and of which the target need not even be aware, let alone given the chance to defend him- or herself against the accusations. (“Charges” is the wrong word, since legally speaking, the people killed so far have never been formally charged with any capital crime, let alone convicted of it, before their execution.)
Whether people like or trust Obama with this precedent is irrelevant. There will be other presidents, most of whom will be (even) less trustworthy. Obama has not now committed to any process worthy of a democracy, and even if he did, there’s zero evidence Congress would go along with writing it into law – meaning it can be undone on the next Inauguration Day. And even if a law is passed, there’s no guarantee that a future administration would honor it, and they have Obama and AG Holder’s own arguments with which to defend their position.
The basic problem with all of this is that Bush/Cheney adopted, and Obama has continued, a legal framework of wartime engagement rules in order to prevent what are crimes, not acts of war. He may be “ending” the GWOT under that name, but he’s keeping the war framework, and Boo is using it here as well. This was the first and most dangerous thing Bush did after 9-11 – when there’s really no evidence that civilian courts, in combination (overseas) with law enforcement and intelligence cooperation and traditional covert ops, don’t serve just as well to protect Americans with far less blowback or potential for abuse (economic as well as civil liberty).
Until that war paradigm shifts to conform with our own constitution, international law, and human decency, our political leadership – all of them – will still be committing war crimes.
What’s so interesting about the excerpt above is that you can read it two ways.
The first way to read it is that he gave Awlaki due process because he consulted the Attorney General and notified Congress. This reading is supported by the fact that he says that he thinks it would unconstitutional to deny due process, and he doesn’t admit to doing anything unconstitutional.
The second way to read it is that he basically does think what he did is unconstitutional and that something needs to be set up to put strikes on a more solid legal footing. This reading is supported by the fact that he says that due process is required and he clearly did not offer Awliki due process.
In any case, he’s rejecting the system he used.
I don’t think it has been really tested if due process means judicial review or any review. That’s probably only something a Supreme Court decision will clear up.
he clearly did not offer Awliki due process.
Says who?
The Justice Department has explained in multiple venues what it considers to be due process for someone fighting against the US overseas, and it doesn’t include a court.
I think you’re letting the word “clearly” do way too much work.
I wrote about Anwar al-Awlaki two times before he was killed and two times after he was killed, each time arguing that the Obama administration should be forced to submit their evidence to a court before they kill an American citizen.
They never even indicted al-Awlaki before killing him. That’s a point Scahill has made over and over. And that’s before getting to the issue of killing al-Awlaki’s 16 year old son.
Wasn’t he convicted in a Yemeni court?
I don’t believe so. I think you’re thinking of the Yemeni journalist, who remains jailed.
A the behest of Obama himself, might I add.
http://www.cnn.com/2011/WORLD/meast/01/17/yemen.al.awlaki/index.html
“Yemeni Court Sentences Awlaki”
There are a lot of things that critics of the Awlaki killing believe that aren’t so. I remember when “everyone” knew that he wasn’t an operational commander, and was killed purely for making videos.
You are so wrong about there being no constitutional issues with a court issuing death warrants for people who are at large, and not there confronting their accusers.
For one thing, it threatens to corrupt our judicial system. Courts traffic in the police power, not the war power. They are meant to provide an adversarial system and choose between two equally-matched sides’ arguments. To introduce into the courts this other decision-making process runs the risk of allowing those habits to leach into the ordinary justice system.
Just like in discussions about civilian trials vs. military commissions, it’s important to remember that the pointy end of the executive branch and the judiciary do not just do the same thing, with one being tougher and the other not as tough. They are meant to do different things.
A review system within the executive is the way to go if a stronger system of oversight is the goal, not dragging the judiciary in where it doesn’t belong.
OK, then what constitutes “war” among non-state actors? Is it a loose, relatively small international organization planning to hijack planes and crash them? Is it a couple of alienated guys acting alone to set off homemade bombs? Is it some overeager teenager at the mosque whose vague jihadi fantasies are encouraged and defined by an undercover officer?
The first one, I can at least see the ambiguity. The others, flat out, are crimes and entrapment, respectively. For 12 years the US has been acting as though each is the legal and moral equivalent of the German Army under Rommel (except for how we treat the prisoners of war, of course). And they have been distinguished from similar political crimes with different motives (abortion clinic bombings, the guy who flew his plane into an IRS building) purely on the basis of motives that weren’t all that different. Until that it’s-war-if-he’s-motivated-by-Islam framework gets challenged – or at least clearly defined – the process continues to beg for abuses.
In a legal sense – and that’s what we’re talking about here, the legal status – war begins with a non-state actor when Congress invokes it Article I powers to declare war, as they did in September 2001.
The others, flat out, are crimes and entrapment, respectively. For 12 years the US has been acting as though each is the legal and moral equivalent of the German Army under Rommel
Would you please refresh my memory about the war we’ve prosecuted against Hezbollah, the Muslim brotherhood, or the Tsarniev brothers?
Especially that last one. I’d be fascinated to hear you explain how the BPD and FBI’s handling of that case matches up with Operation Torch in North Africa. Perhaps we can start with the tactical air strike element.
Then why did he? Even Osama bin Laden was shot while resisting arrest. At least that’s the story.
Shot incident to arrest. Shot during the commission of a crime. These are known legitimate actions, and actions for which police have to answer. Shot (or bombed) while planning a crime is not. War and crime are being mixed and the Constitution suffers.
He didn’t.
The process due to overseas enemy forces in wartime is not the same as the process due to “American persons” on US soil.
War and crime are being mixed by the people who insist on analyzing acts of war through the lens of criminal law.