CIA

Can the President Legally Kill Americans?

Obama's secret execution approval process denies citizens due process.

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Ville Misaki/Flickr

Can the president kill you? The short answer is: Yes, but not legally. Yet, President Obama has established a secret process that involves officials from the Departments of Justice and Defense, the CIA, and the White House senior staff whereby candidates are proposed for execution and the collective wisdom of the officials then recommends execution to the president, who then accepts or rejects the recommendation.

If the recommendation is to kill and the president rejects the recommendation, the CIA is directed to arrest the person. If the president accepts the recommendation to kill, then death is ordered. This is not unlike the procedure used in the reign of the monstrous British King Henry VIII, except that the king himself delegated the final say to his chancellor so that he could publicly disavow participation in the government murders.

Obama does not disavow them; he defends them. But the Constitution he swore to uphold makes clear that whenever the government wants the life, liberty, or property of anyone, it must follow due process. Stated differently, it must either sue the person for his property or prosecute him for his life or liberty, and the law that forms the basis for the lawsuit or the prosecution must have existed before the person did whatever the government says he did that resulted in its pursuit of him. The whole reason for the requirement of due process was to prevent what Henry VIII did and Obama is doing from ever happening here.

It is happening here.

In 2011, Obama ordered the CIA to murder Anwar al-Awlaki, an American born in New Mexico. When the CIA's drones murdered Awlaki, he was within eyesight in Yemen of about 12 Yemeni intelligence agents and four CIA agents, all of whom collectively could have arrested him. He was not engaged in any unlawful behavior. He was unarmed and sitting at an outdoor cafe with a friend and his teenage son and the son's friend. All four—Americans all—were murdered by the drones dispatched from Virginia.

When word of this got out, the president came under heavy criticism. He responded by claiming he had the lawful authority to kill any dangerous person whose arrest was impractical. He also claimed he had a legal opinion from Attorney General Eric Holder that justified the killings. He then dispatched Holder to explain the lawful basis for the killings at a speech at Northwestern Law School. The speech produced even more criticism and, eventually, the revelation of a portion of the legal opinion.

The legal opinion is hogwash. It relies on cases of hot pursuit in which police may lawfully use deadly force to stop an armed and dangerous person who is an imminent danger of causing deadly harm to someone else—an armed robber fleeing a bank he has just robbed and shooting at his pursuers may of course be shot at lawfully by the police. In the Awlaki case, the government had not even alleged that he committed a crime. Without that allegation, those 16 intelligence agents who were following him for the final 48 hours of his life could not have lawfully arrested him. The government concedes this; so it decided to kill him.

All this resurfaced last week in a Brooklyn federal courtroom where another American, Mohanad Mahmoud al-Farekh, born in Texas, was charged with providing material assistance to a terrorist organization while he was in Pakistan. It was revealed that the Department of Defense nominated Farekh for execution, the CIA seconded the nomination (you cannot make this stuff up), and the president vetoed it because he did not want to offend the Pakistanis, over whose land he has dispatched more than 3,000 drones, a practice he promised to stop.

The president did not decline to order the murder of Farekh because it was morally wrong or unconstitutional or a violation of federal law, but because he feared it would upset officials in a foreign government. We also learned last week that the House and Senate committees on intelligence—the members of which receive classified briefings that they cannot share with their constituents or colleagues—demanded Farekh's execution, but the president refused.

What a sad, sorry, unconstitutional state of affairs this Obama presidency and its enablers in Congress have brought us. Like Awlaki, Farekh was not engaged in an act of violence when intelligence agents pursued him. Why did one of these pursuits result in due process and the other in murder? Because of the political calculations of the president. That is not the rule of law. That is a gross violation of basic American values.

While all this has been going on, the president has negotiated a deal with Iran that has many in Congress up in arms. They think he gave away the store, and they are in the process of enacting legislation over his likely veto that would prohibit him from entering into agreements on nuclear weapons without their consent. Have you heard any of these self-proclaimed congressional patriots offer legislation to prohibit the president from murdering Americans? Who will be nominated for execution next?

When the president acts like a king and Congress looks the other way, it is as culpable as he is.

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  1. And nothing will come of this because the vast majority of Americans are OK with defying the rule of law because … terrorists!

    1. IMO this is the absolute breaking point. There is no way for a rational actor to both believe the US maintains the rule of law while knowing about the presidents kill list of americans.

      This is a shame to every American and our history.

  2. I blame Rethuglikkan obstructionism!

  3. Yes, fear is a good tool to keep your population in line/on board, as is patriotism. And, at least in our country for the past while ? partisanship certainly plays its role. A lot of Team Blue was against human rights abuses when a Republican administration was in charge, and members of Team Red called them soft on terrorism.

    Now that Team Blue is in charge, Team Red cannot be against the abuses because it will show them to be hypocrites (although some have, thus uncomfortably showing themselves to be hypocrites).
    For their part, members of Team Blue have to support their president or admit he is much like his processor, thereby uncomfortably showing themselves to be hypocrites.

    1. It’s hypocrites all the way down…

    2. Hypocrisy has never been an issue for either side before. I think you are overanalyzing this. Basically the president thinks extrajudicial assassinations of American citizens are moral, legal and responsible and Republicans mostly agree.

  4. President Obama has established a secret process that involves officials from the Departments of Justice and Defense, the CIA, and the White House senior staff whereby candidates are proposed for execution and the collective wisdom of the officials then recommends execution to the president, who then accepts or rejects the recommendation.

    There is a process that they do, therefor, due process!

    1. “And even though it’s like, secret and stuff, it’s okay because this is the most transparent administration in history!”

  5. Perhaps the most despicable utterance by Obama (so far) was “…we tortured some folks.” I guess some day his successor will tell us, “…we killed some folks.”

    1. Perhaps the most despicable utterance by Obama (so far) was “…

      “justice is done”

      My dog bites me, and I shoot him, it’s not justice. I see no way assassinating an old man in his sleep outside our borders/in a war zone is not justice.

      Prior to this, IMO, justice and killing people were two separate matters.

    2. dammit.

      I see no way assassinating an old man in his sleep outside our borders/in a war zone is not justice.

  6. Have you heard any of these self-proclaimed congressional patriots offer legislation to prohibit the president from murdering Americans?

    Murder is a state or local matter and it is up to those authorities to adjudicate. In these two cases Yemen and Pakistan.

    1. He could be charged with violating the civil rights of his victims. Same as cops who kill “civilians” extrajudicially occasionally (read: rarely) are. So could every person in the chain of command that ordered and carried out the assassinations.

      Conspiracy to commit a civil rights violation at a minimum with the probe operator being hit with the actual violation.
      Put here’s a charge that covers it from a federal standpoint, idiot. Especially when the act is being carried out in an office building in Nevada.

      1. Probe=drone. Silly autocorrect.

      2. People in Yemen don’t have any rights under the US Constitution. It only applies to US jurisdiction.

        1. U.S. citizens have rights under the Constitution no matter what country they are in. Al-Awlaki was a native-born U.S. citizen, as was his son.

          1. Unlike peaceable assembly and the right to bear arms, the 5th amendment isn’t a right of US citizens. It is a right of “persons” in general. Either it applies to everyone everywhere (which would be ridiculous) or it only applies within US jurisdiction.

            1. You can argue that we should apply 5th amendment rights to foreign nationals we target as part of a war effort. That doesn’t take away from the fact is American citizens can’t be gunned down by the US government with no due process just because they happen to be vacationing in Canada. You take idiocy to a level Palin’s butplug would envy.

    2. Murder is a state or local matter and it is up to those authorities to adjudicate. In these two cases Yemen and Pakistan.

      This is sarc, right? The President ordered a drone to kill an American without being found guilty in a court of law and sentenced to death, therefore the President is a murderer and should be tried under US law, but I would be ok with sending him to Yemen to stand trial.

      In 2011, Obama ordered the CIA to murder Anwar al-Awlaki, an American born in New Mexico. When the CIA’s drones murdered Awlaki, he was within eyesight in Yemen of about 12 Yemeni intelligence agents and four CIA agents, all of whom collectively could have arrested him. He was not engaged in any unlawful behavior. He was unarmed and sitting at an outdoor cafe with a friend and his teenage son and the son’s friend. All four?Americans all?were murdered by the drones dispatched from Virginia.

      1. I thought it was Nevada. Thanks for the correction.

        Looks like PB will be running cover for the murderous warmonger on this one. Funny his memory only extends back 6 years and two months.

        1. I thought it was Nevada. Thanks for the correction.

          It was probably piloted from Nevada as you said, but the order came from Virginia. Murder, conspiracy to commit murder, violation of civil rights, etc. could be leveled against anyone involved, and should be.

      2. Then let Yemen call for extradition.

        If a president were to order the killing of a political rival in the USA and it was discovered he would certainly be tried for murder.

        Tell Yemen to go for it.

        1. The murder was ordered here (conspiracy), it was carried out here for all intents and purposes (drone pilot inside US borders).

          I take it you’re not too well-versed on conspiracy statutes.

          As for the civil rights violations, it doesn’t matter where in the world the violation happened. American citizens are still subject to American law at all times. (See: people prosecuted for attempting to cross into Canada and have sex with underage people, or for trying to go to Thailand for child sex trips.). He could be tried in the DC Circuit.

        2. Then let Yemen call for extradition.

          If a president were to order the killing of a political rival in the USA and it was discovered he would certainly be tried for murder.

          Tell Yemen to go for it

          Do you think the President ordered the killing of a US citizen without that citizen being tried and found guilty in a court of law and sentenced to death by that same court?

        3. If a president were to order the killing of a political rival in the USA and it was discovered he would certainly be tried for murder.

          Isn’t that what Obama more or less did with al-Awlaki? The man’s supposed (I won’t say alleged because he wasn’t even charged) crimes are all political and religious tirades against our system. So he was murdered, on orders from the president, because his political and social beliefs and speech did not adhere to what the president and his advisors deemed acceptable.

          His son was murdered for no reason whatsoever. Maybe Obama needed that kill to fill out his murderdrone version of a Subway Club Card. We’ll likely never know.

      3. Have you ever heard of the concept of “jurisdiction”?

        If I go to Yemen and kill someone, I can’t be prosecuted by my home state or the fedgov. So why would it suddenly apply to Obama?

        1. D.C. has laws against murder, murder-for-hire and conspiracy to commit murder, and Obama was within the D.C. jurisdiction at the time. Typically, the initiator of a murder-for-hire scheme is held as fully culpable for the murder as the man who pulled the trigger. Seems like the D.C. police would be justified in booking him.

        2. Actually yeah you can. There are numerous statutes that apply to US citizens and their actions outside the united states. If not there should be some really happy drug kingpins because they can just locate in Seattle and drive across the border every time they want to order an assassination.

          See also : PROTECT Act of 2003

        3. If I go to Yemen and kill someone
          If you fire a bullet in one state that kills someone in another state, AFAIK you can be prosecuted in either jurisdiction.

    3. By this moronic “reasoning” I could stand on the US side of the border with an AK-47 gunning down people trying to cross from Mexico and say it isn’t murder because the murder happened in Mexico even though I pulled the trigger (pushed the button) on US soil.

      1. But by your reasoning, if Obama went to Somalia and ordered the hit from there, he couldn’t be prosecuted either.

        1. Well actually no because I never claimed the location of the crime has any bearing on whether it can be prosecuted under US law.

        2. Since Auschwitz is in Poland do the murders that were committed there not count against Hitler?

          1. That part of Poland was under German jurisdiction at the time.

            1. Germany had not annexed so it was not part of Germany; we aren’t talking about Austria or the Suddatenland. They illegally used military might to occupy the space. Not much different than illegally flying drones over Yemen or Pakistan.

              1. I looked it up later and turns out it was annexed. Other camps were located in eastern Poland that were administered by Nazis but never in Germany (including Sobibor, Belzec, and Treblinka). So Hitler keeps his Auschwitz murders but loses these…unglaublich.

  7. May the president kill Americans.

    1. Sure, why not? I mean, if Republicans can throw old ladies off cliffs, why can’t Democrats kill brown people with drones, right?

    2. Finally, someone standing up for the due process rights of the English Language.

  8. Have you heard any of these self-proclaimed congressional patriots offer legislation to prohibit the president from murdering Americans?

    If the president is already ignoring the constitution, what good would additional legislation do?

    -jcr

    1. Exactly. His actions are already prohibited by the Constitution. It doesn’t seem to matter in the least.

    2. Perhaps a Congressional investigation including a subpoena of the Prez and all his advisors would be useful. If the heffalumps won’t do this, why did they work so hard to get a majority?

  9. “If the president is already ignoring the constitution, what good would additional legislation do?”

    John,

    I think it would be an opportunity for congresspersons to proclaim their outrage at what the president is doing and show that they are trying to prevent him from continuing his actions by their adding redundant laws to the Constitution. If the president continues his policies after this new legislation is passed it will be obvious to even those who aren’t paying much attention that his actions are blatantly illegal.

    So… Grandstanding or principled stance, depending on the congressperson
    President’s hand is forced
    Congresspersons proclaiming president is acting illegally
    during press interviews
    Impeachment hearings
    Next president cannot use these policies

    Ideally, the president would already have been impeached and everyone involved would have been held accountable and punished according to our existing laws, but government personnel are too empowered and the populace too apathetic and/or ignorant for that.

    1. If the president continues his policies after this new legislation is passed it will be obvious to even those who aren’t paying much attention that his actions are blatantly illegal.

      Charles, the problem with this is the legislation most likely won’t become law as Obama will veto it. Do they have the votes to overturn the veto?

      1. The law would never make it out of committee. The Dems want toe power and the Repubs want the power should they win the WH next fall.

        Remember, we’re talking about mostly craven politicians here that care more about power than righteousness. Expecting them to do the right thing is setting yourself up for disappointment.

        1. Ivan and sloopy,

          I don’t think for a moment that there are very many principled members in congress who would draft any legislation limiting the president’s self-assumed powers, and as you both point out it would very likely fail in reality even if it was drafted.
          I was attempting to think of what good, if any, could come of what John had asked (“… what good would additional legislation do?”). It was a bit of creative thinking on my part.

          1. A Congressional investigation would be a good start. Get the Prez and his flunkies on TV under oath. If the heffalumps won’t do this why in hell did they work to get a majority?

            Senator Paul, Representative Amash, where are you? Why aren’t you calling for such an investigations?

  10. Cant make an omelette without….

    1. …bacon, Swiss cheese, mushrooms and spinach.

      Or

      …ham, cheddar, mushrooms and onions.

      In a decent world, anyway.

      1. I like to put leftover salmon into omelets. Yum.

        1. Wouldn’t that be exceptionally dry? I would hope you don’t completely cook the eggs.

          1. I cook my salmon to medium. So really all I’m doing is heating it in the eggs.

  11. I’ll just leave this here.

  12. The bottom line is that government claims the privilege (or are they claiming it is a right?) to redefine what is “lawful” at their whim. This is tantamount to the govt. limiting itself, a contradiction.

  13. Can? He already has.

  14. Mr Napolitano proves too much here. The fifth amendment prohibition on depriving of life without due process is not restricted to American citizens. So to be consistent, Mr Napolitano would have to similarly condemn the US govt-performed killing without due process of anyone, anywhere, even those engaging in hostilities against the US. Which is a ludicrous and mass-suicidal proposition.

    Or he could accept the normal interpretation that the fifth amendment only applies to people who are under US jurisdiction. People who are hiding in Yemen and unable to be arrested don’t qualify, regardless of where they plopped out of their mother.

    1. We certainly don’t want the NAP applied to foreign affairs. Heck, we would have missed out on Vietnam and Iraq.

  15. D.C. has laws against murder, murder-for-hire and conspiracy to commit murder, and Obama was within the D.C. jurisdiction at the time. Typically, the initiator of a murder-for-hire scheme is held as fully culpable for the murder as the man who pulled the trigger. Seems like the D.C. police would be justified in booking him.

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  17. In terms of brutal realpolitik, killing Awlaki made some sense. An American, apparently with the gifts of charisma and rhetoric, turning his back on all the advantages being an American entails (he was a PhD candidate at George Washington U) to rally Islamic militants in the Arabian desert against America.

    Of course, still doesn’t make it legal. And making him a martyr, killed alongside his completely innocent son and friends, made no sense.

    1. turning his back on all the advantages being an American entails

      I don’t know about that. Being an American citizen would be a distinct advantage in al-Qaeda (at least once you’ve proven your loyalty to them). It’s not like he went to Yemen to become a random Mo Blow suicide bomber like most recruits have to do.

      1. I meant, living the comfortable American Dream: a safe middle class life in the suburbs, 2.5 kids, weekend BBQs while watching your local NFL team with the guys, etc.

        1. Two mortgages, credit card bills, car payments, crappy neighbors, high taxes, annual double-digit increases in health insurance premiums, stop and go traffic, the prospect that each kid will borrow $50k to go to college…sounds like purgatory.

        2. Living in the suburbs doesn’t sound like the American Dream. It sounds like hell on earth.

  18. Here comes Judge Nap, hopping down the liberty trail. A hippin’ & a hoppin’ justice is on it’s way.
    (always with the question marks though, must be a fetish)

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  20. Someone has to explain to me why the fact of the target being American matters. I thought it was well-established that due process was a right afforded to all persons, citizens or not.

    I don’t say this to oppose the policy; quite the contrary. If we assume that the President is acting pursuant to a legal Congressional authorization to use force (I think he is) and he identifies a person at war with the United States, surely he can attack that person. Perhaps it would be nice to arrest the person instead, but in the case of Awlaki that really wasn’t an option.

    So here’s your assignment: Explain to me why, if Awlaki was entitled to due process, Bin Laden wasn’t.

    1. Or Yamamoto. We shot down his plane because we specifically knew he was in it. It wasn’t some general attack, but a targeted assassination. Should we have arrested Yamamoto and given him a lawyer?

      1. Japan declared war on us. They attacked Pearl Harbor. Yamamoto was a member of their military. These were acknowledged by all.

        Awlaki is reported to have done X, Y, and Z. So was Richard Jewell.

        1. Awlaki was openly part of al qaeda. I seem to remember them attacking us. Clearly we were and are at war with al qaeda. The analogy seems perfect

          1. Were you with him when he acknowledged his AQ membership and contributory activities?

            If there is sufficient evidence the drone strike then there certainly should have been sufficient evidence to have a trial first.

            1. Presumably this is a trial in-absentia, since he was also at the time evading capture by Yemeni government.

              Read his Wikipedia page. You’ll find links to tons of evidence that he was actively urging and facilitating jihadist violence in the west, for instance by helping with funds transfers.

              Capture wasn’t a practical option and I don’t see why it’s necessary in any case. Just because he’s an American? How does that make him different from a Yemeni al qaeda fighter?

              1. At one point in Wikipedia Fuzzy Zoeller was a pill-popping wife beater…

                The Wikipedia pages reads like someone your average FBI agent was trying to frame but never could until he left the country. Maybe he radicalized (didn’t the US have him detained?) or maybe it is crap.

                I’m not sure I would use Wikipedia to justify killing multiple people when at least some are known to be innocent.

                I think your run of the mill AQ fighter in Yemen poses no threat to either of us. But someone planning terror attacks for inside this country does. Hence the desire to find out the truth in a trial.

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  22. I know this won’t make any difference to the people that wrote this article or the comments, but al-Awlaki was not sitting in an outdoor caf? when he was killed. There were no Yemeni intelligence agents or CIA operatives anywhere near him, nor any other American citizens in the vicinity, so there was no possibility of “arresting” him. He was traveling in Yemen’s al-Jawf province with three other al-Qaeda operatives when his vehicle was struck by a Hellfire missile fired by a Predator drone. Al-Jawf province is the back of beyond, and there is no beyond back of that in Yemen. Over the border to the north is the Rub al-Khali, the Empty Quarter, where even the Bedouin don’t go. Al-Jawf is, and probably was then, the home of the Houthis, who make al-Qaeda look pinkish, but it’s a real good refuge for those who want to hide out and call for jihad on the Americans, which is just what al-Awlaki was doing.

    I despise Obama for many things, but disposing of Anwar al-Awlaki isn’t one of them.

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  24. How is this any different than in 1776 under King George III? We fought a war of independence to rid ourselves of the yoke of tyranny, only to become apathetic to the same form of tyranny in later years. The American people need to look in the mirror and come to the realization that we have strayed very far from our founding morals and beliefs. Afterward, we need to all come together on whether this government deserves to remain in power or not. If not, we need to abolish it and replace this government with another form which shall guarantee our prosperity, just as the Declaration of Independence called for us to do in 1776.

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