First in History: President Can Assassinate Americans

December 15, 2010 • Commentary
This article appeared on Cato​.org on December 15, 2010.

On Dec. 7, the case before U.S. District Court Judge John Bates in Washington was described by him as presenting “stark and perplexing questions.” Can the president, the judge continued, “order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization?”

What did Judge Bates decide? He dismissed the case!

Thereby he greatly pleased the defendants: “Barack Obama, in his official capacity as President of the United States; Robert Gates, in his official capacity as Secretary of Defense; and Leon Panetta, in his official capacity as Director of the Central Intelligence Agency.”

The plaintiff is Nasser al‐​Aulaqi, acting on behalf of his son, Anwar al‐​Aulaqi, who could not bring the lawsuit himself because he is hiding in Yemen for his life, having been placed on a kill list by President Obama that is being implemented by the other two defendants.

Bringing the lawsuit for al-Aulaqi’s father are the American Civil Liberties Union and the Center for Constitutional Rights. They charge that under “secret criteria” approved by the president, officials Panetta and Gates are “invested with sweeping authority to impose extrajudicial death sentences in violation of the Constitution and international law.”

Anwar al‐​Aulaqi will go down in history as the very first American citizen to be placed on a secretly determined government kill list — despite the clear requirement of our Fifth Amendment to the Constitution that “no person shall be … deprived of life, liberty or property without due process of law.” If the Supreme Court eventually upholds Judge Bates’ decision, other Americans deemed as terrorists, by executive branch standards we are not allowed to know, can be added to the doomsday list. China and Iran have, at least, pseudo‐​courts.

For a time, there has been considerable press attention to this condemned citizen stripped, in secret, of all his core constitutional rights, but I very much doubt that these official targeted killings will have any significant impact on the 2012 presidential elections. I have not seen any concern, for instance, among the increasingly influential tea partiers who otherwise admirably often carry the Constitution with them.

There is indeed strong evidence that Anwar al‐​Aulaqi is an influential jihadist — much of that evidence provided by him in his many public statements, carried on jihadist websites, that sometimes call for putting Americans on target lists. Also, he appears to be connected to certain terrorist organizations and even to certain specific terrorist attacks here.

But he is an American citizen, born in New Mexico in April 1971 and having moved to Yemen in 2004. Nonetheless, the Obama administration has, all by itself, decided that al‐​Aulaqi is fatally a man without a country with regard to his life.

Said Jameel Jaffer, deputy legal director of the ACLU (New York Times and Washington Post, Dec. 8):

“If the court’s ruling is correct, the government has unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation.

“It would be difficult,” Mr. Jaffer added, “to conceive of a proposition more inconsistent with the Constitution, or more dangerous to American liberty.”

Even Judge Bates (Washington Post, Dec. 8) in his opinion “wondered why a judge’s warrant was required for the government to target a U.S. citizen overseas for electronic surveillance but prohibited to target one for death” by a required warrant.

How come, President Obama?

This is one of the increasing times when our mortal enemies, the terrorists, have caused some of their intended American victims, myself included only because I’m American, to ask, “Is this still America?”

Here, in his opinion, is Judge Bates’ answer to how he has arrived at his deadly conclusion. He decided — startlingly, in my view — that while “the legal and policy questions posed by this case are controversial and of great public interest” — I sure wish they were — they are “a political question” for executive‐​branch officials to make. Not for our judges.

Quoting from a previous Supreme Court decision, Gilligan v. Morgan (1973), he cited that “the Judiciary lacks the ‘competence’ to make ‘complex, subtle, and professional decisions as to the composition, training, equipping and control of a military force … the ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability.’ ” Are judges required to be subject to electoral accountability?

So, Judge Bates, this extrajudicial killing is up to We the People and our representatives. But the defendants, the Obama executioners, have kept entirely secret the criteria — let alone the precise language in the Constitution — by which al‐​Aulaqi and future citizens, as global terrorism continues, can be obliterated.

Furthermore, what if We the People don’t care about getting rid of a citizen who the government assures wants to kill us? Then this abandoned American has no recourse.

But Judge Bates throws up his hands: “The Court finds that the political question doctrine bars judicial resolution of this case.” He admits his conclusion is “somewhat unsettling.”

Are you unsettled? Next week: This layman documents why Judge Bates is dangerously wrong, and the consequences if his holding is confirmed by the full bench of the D.C. District Court and then the D.C. Circuit Court of Appeals — climaxed by the government‐​leaning Roberts Supreme Court. Future American presidents will then have unreviewable powers to murder American citizens as alleged terrorist murderous threats to this republic and its disposable Constitution.

“If Americans win a war (not just against Saddam Hussein but the longer‐​term struggle) and lose the Constitution, they will have lost everything” — Lance Morrow, Time Magazine, March 13, 2003.

Who will we be then?

About the Author