When Can a President Order an American Killed?

My latest for The Atlantic, "The Thorniest Question: When Can a President Order an American Killed?" has been posted.

My latest for The Atlantic, “The Thorniest Question: When Can a President Order an American Killed?” has been posted.

It’s a longish piece but the bottom line is this:

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.

I don’t claim it’s a satisfying answer. But we trust the president to make these calls and Congress and the courts to keep him in check. If there’s a better system for balancing the legitimate national security interests and civil liberties of Americans, it has yet to be devised.

FILED UNDER: Law and the Courts, Published Elsewhere, Terrorism
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. mantis says:

    When Can a President Order an American Killed?

    Never!*

    * Until a Republican is elected president. Then it’s cool.

  2. Hey Norm says:

    What Mantis said.

  3. mike says:

    While I am certainly not upset to see this scumbag turned to dust it does present serious legal issues. Targeting a US citizen with our military might in a country we are not at war with. He has not been convicted of any crime. He has not been tried in absentia.

  4. eric florack says:

    it’s called war…. A war they declared on us.

  5. PD Shaw says:

    In some respects, there is nothing unusual or unique due to the national security issues. Domestically, if for example there is a hostage situation, law enforcement can be ordered to shoot to kill. There is no prior requirement for a warrant or judicial sanction. Ultimately, the check on abuse of this power is in the post-hoc evaluation of the exigency of the circumstances and the availability of less fatal means.

    the courts also have a significant role to play in safeguarding the Constitution.

    All the courts have really done is devalue the option of detention as an alternative to killing, or at the very least devalued detention in domestic or near-domestic territory. I sometimes wonder if that was the real intention.

  6. But we trust the president to make these calls and Congress and the courts to keep him in check.

    Here’s the key problem. What ability does congress and the courts have to check the President in cases like this? Keep in mind that al-Awlaki tried to get the order addressed by the courts and was blocked from doing so by the DOJ, who threatened to arrest any lawyer representing him on terrorism charges.

  7. Tlaloc says:

    I don’t claim it’s a satisfying answer. But we trust the president to make these calls and Congress and the courts to keep him in check.

    But the president has asserted an extrajudicial power to do so, which means no Congress or Court to keep him in check. Nor is there such a check on his power to order the use of nuclear weapons. Nor is their a meaningful check on his ability to order the military to war since we’ve effectively done away with the concept of a declaration of war, and made the meaning of war itself fluid.

  8. James Joyner says:

    @mantis and @Hey Norm: I’m not seeing the relevance of that snark to this discussion. Most of those doing the questioning here, such as Glenn Greenwald, are on the left. Few Republicans seem to have any problem with this.

    @Stormy Dragon and @Tlaloc: Presidents claim all sorts of powers, especially during wartime. Congress and the courts have frequently smacked them down. The courts in particular, despite no tangible enforcement power, have almost always been obeyed–FDR, Truman, Nixon, Clinton, and Bush all did things they didn’t want to when ordered by the courts.

    Congress can stop any war they want to: they control the purse. Additionally, they have the power to haul administration officials before them for hearings. And, of course, they have the power of impeachment.

  9. Loviar says:

    Team this is more sophism by James in order to muddy the waters and keep his “reasonable conservative” mantle clean.

    As a former military officer myself I’m ashamed that James can even attempt to downplay this assignation (extrajudicial murder). But then again with torturers like Alan West as one of his party leaders I’m not surprised that James has taken this position.

  10. Murray says:

    What bothers me most in these debates is the notion that the nationality of the “target” is relevant. I fail to see why having an American killed should give more concerns than having a … Canadian, or a Frenchman or whatever killed.

    Are we to understand that the fact to be born on US soil gives us license to perpetrate acts of violence other nationals aren’t allowed to?

    Based on that kind of reasoning, what would keep us from distinguishing between US citizens and foreigners throughout our law enforcement? How about applying different rates for parking tickets for starters?

  11. James H says:

    When that American is a mime.

  12. @James Joyner:

    The courts in particular, can’t do anything unless a case is brought, which is hard to do with the executive branch threatening to immediately arrest anyone who tries on aiding and abetting charges.

    As for congress, there seems to be a naturalism fallacy here: if congress could do something but doesn’t, then it must be alright.

  13. ponce says:

    I don’t think this is a “thorny” question.

    Even bleeding heart liberals support Obama busting a cap in this freak’s ass.

  14. PD Shaw says:

    @Stormy Dragon: Do you have any link showing the DOJ threatened to arrest any lawyer representing him on terrorism charges? As far as I can tell, a lawsuit was brought and it was dismissed in a huge court decision on political question grounds.

  15. samwide says:

    I suppose one could make the argument that Anwar al-Awlaki was engaged in rebellion against the United States and thus placed himself in harm’s way. Does anybody think that if a group of American yahoos attacked a US installation (or city) using any means at their disposal, the president would be remiss in his duties if he sent a company of Marines to forcibly dissuade them? Unto the last yahoo?

  16. mantis says:

    I’m not seeing the relevance of that snark to this discussion. Most of those doing the questioning here, such as Glenn Greenwald, are on the left. Few Republicans seem to have any problem with this.

    Sorry, I was doing my Jay Tea impression. You would have to admit there is a fair portion of the right that opposes anything and everything President Obama does, even if they would support it if a Republican were president.

    Greenwald and others on the left who oppose this are actually being consistent.

  17. James Joyner says:

    @Loviar: This doesn’t even make sense. I’m defending the actions of a Democratic president who I voted against and hope to be able to help oust next November. In doing so, I indirectly cite the actions of the iconic modern Democratic president, Franklin Roosevelt, as justification.

  18. @PD Shaw:

    He was a Specially Designated Global Terrorist which, at the time the suit was filled by the ACLU, required permission from the Treasury Department to represent. Although that has at least been softend somewhat subsequently:

    http://www.aclu.org/national-security/government-changes-attorney-licensing-regulations-response-lawsuit-filed-ccr-and-a

    What happened in the original case was the ACLU couldn’t challenge the licensing requirement on Awlaki’s behalf without violating the law, so they had to do it on behalf of his father, which resulted in the case being dismissed on standing ground. So there’s a catch-22 here: only the person named on the SGDT can challenge the ruling in court, but no one can represent him until the ruling has been overturned.

    Thankfully that’s been fixed, but the government’s position is that it’s still legal for them to do it, so they can decide to go back to the old way whenever they like. It also doesn’t help anyone who can’t get a pro bono lawyer.

  19. Moosebreath says:

    I am strongly opposed to this claim of power. There is a huge difference between killing on a battlefield (which the SWAT example effectively is) and killing at a time of our choosing.

  20. samwide says:

    Kenneth Anderson at Volokh lays out what he takes to be the government’s position.

  21. michael reynolds says:

    The present alternative to assassinating people like this is to allow people like this to recruit terrorists to attack the United States.

    I don’t like that alternative. Get me a better one and I’ll listen attentively to the concerns about this kind of action. But doing nothing is not an acceptable alternative.

    Joyner has it exactly right. No one likes this, no one is comfortable with this, but we do have some indirect but powerful safeguards.

  22. ponce says:

    There is a huge difference between killing on a battlefield (which the SWAT example effectively is) and killing at a time of our choosing.

    Yeah, but seeing as most terrorist kill themselves on the “battlefield” the alternative is to do nothing to counter terrorists.

    Get back to me when Obama gives the go-ahead for domestic Predator strikes, though.

  23. michael reynolds says:

    @ponce:
    Predator strike on Donald Trump. Justified or not justified?

  24. Drew says:

    I’m with Joyner, and Reynolds.

    Isn’t the answer to your question, James, that the chasm between a rogue President offing his political enemies vs obvious terroists so wide as to make intellectual musings a joke?

    I suppose we could have a brandy and cigar late night discussion about just how wide that chasm is or should be, but I’m thinking in the creep offed today we are talking a chasm as wide as the Atlantic. And any sensible person (the “system”) would balk when the chasm declined to half the Atlantic.

    I call that a buffer zone. Else we are just spinning aimlessly in our chairs……

  25. James Joyner says:

    @Drew: I think that’s right and actually intended to include a bit more of it in my piece. Most notably, the generals and senior intelligence execs ordered to carry out an obviously bullshit execution would simply refuse to do it.

  26. ponce says:

    Predator strike on Donald Trump. Justified or not justified?

    Haha, Obama already blowed up Trump.

    Blowed him up real good:

    http://www.youtube.com/watch?v=k8TwRmX6zs4

  27. PD Shaw says:

    @Stormy Dragon: Thanks for the link. I don’t believe ACLU attorneys were threatened with jail; they just didn’t want to seek a license.

    In any event, I think your initial question still stands, perhaps for a different reason. The ACLU lost the court case because of lack of standing and on the merits:

    Because decision-making in the realm of military and foreign affairs is textually committed to the political branches, and because courts are functionally ill-equipped to make the types of complex policy judgments that would be required to adjudicate the merits of plaintiff’s claims, the Court finds that the political question doctrine bars judicial resolution of this case.

    The courts have nothing to offer here.

  28. Racehorse says:

    So,some of you would have opposed President Roosevelt ordering the assassination of Hitler?

  29. michael reynolds says:

    @ponce: Hah. I’d forgotten that episode. I don’t think Trump ever recovered.

  30. anjin-san says:

    James has this one pegged. If anyone has a better way to deal with this sort of case, let’s hear it. No vague rambling about law enforcement please. An actual, operable plan.

  31. mantis says:

    So,some of you would have opposed President Roosevelt ordering the assassination of Hitler?

    Not really the issue here. Hitler was not an American citizen, which is the sticking point in this situation. I doubt many here are opposed to killing terrorists who are foreign nationals, but with our own citizens things get tricky.

    Also, we were at war with Germany. Terrorism is a different beast.

  32. ponce says:

    So,some of you would have opposed President Roosevelt ordering the assassination of Hitler?

    IIRC, it was Churchill who put out the shoot Hitler on sight order.

  33. @PD Shaw:

    Thanks for the link. I don’t believe ACLU attorneys were threatened with jail; they just didn’t want to seek a license.

    And what exactly do you think happens if you do something that requires a license without said license?

  34. Tlaloc says:

    Presidents claim all sorts of powers, especially during wartime. Congress and the courts have frequently smacked them down.

    Who has standing to bring such a court case? What action can congress bring when the assassination is a secret order?

  35. ponce says:

    Hah. I’d forgotten that episode. I don’t think Trump ever recovered.

    And don’t forget, that’s the night he green lit the operation against bin Laden…Obama is one cool dude.

  36. steve says:

    While I largely agree with you James, I would prefer that this be vetted by a court, much like we (are supposed to) do with wiretapping.

    Steve

  37. Tlaloc says:

    So in short-
    if the FBI want to tap your phone they need a warrant.
    if the police want to break in your door they need a warrant.
    but if the president wants to kill you, no warrant.

    Gotcha. That is a very fair and well thought out policy and there’s no possible way it could come back to haunt us.

  38. jpe says:

    @ Tlaloc: the ability to kill is premised on the fact that the target is beyond the reach of the legal system. If Awlaki were in France, or Omaha, or even a part of Yemen under government control, then we wouldn’t be able to take military measures.

  39. Ben Wolf says:

    @jpe: As others have noted al-Awlaki attempted to engage with the U.S. justice system and was rebuffed every time. I wouldn’t return to this country either with no guarantee I wouldn’t be indefinitely detained without trial.

  40. Ben Wolf says:

    @mantis: Let’s also keep in mind Hitler was in uniform. We knew for a fact he was our enemy because he wore the enemy’s colors. al-Awlaki didn’t, nor did he declare himself a member of any terrorist organization. That’s why he should have gotten a trial.

  41. @jpe:

    the ability to kill is premised on the fact that the target is beyond the reach of the legal system.

    So could Obama order a missile attack on Roman Polanski in light of France’s refusal to extradite him?

  42. Loviatar says:

    @ponce:

    E.D. Kain says it much better for me with this back and forth from the movie – A Man for All Seasons.

    A conversation for the times

    William Roper: So, now you give the Devil the benefit of law!

    Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

    William Roper: Yes, I’d cut down every law in England to do that!

    Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

    .

    Ponce, what will you do when the Devil rounds on you?

  43. Racehorse says:

    @Stormy Dragon: Not a bad idea!

  44. anjin-san says:

    Hah. I’d forgotten that episode. I don’t think Trump ever recovered.

    Yea, the ineffectual, empty suit, helpless weakling Obama slaughtered Trump without breaking a sweat.

  45. ponce says:

    Ponce, what will you do when the Devil rounds on you?

    Lovitar,

    America is a very bloodthirsty country, perhaps the most bloodthirsty in history.

    It’s pointless to try to defend a guy who is living in Yemen and actively trying to slaughter Americans.

    Like I said, look for me on the barricades when Obama starts authorizing domestic drone assassinations.

  46. An Interested Party says:

    America is…perhaps the most bloodthirsty in history.

    Oh? And what is the evidence to support that claim? I mean, I certainly am not a person who makes excuses for our country…America has done a lot of good but, a lot of horrible things have been done too…still, the “most bloodthirsty” in history?

  47. Loviatar says:

    @ponce:

    First they came…

    First they came for the communists,
    and I didn’t speak out because I wasn’t a communist.

    Then they came for the trade unionists,
    and I didn’t speak out because I wasn’t a trade unionist.

    Then they came for the Jews,
    and I didn’t speak out because I wasn’t a Jew.

    Then they came for me
    and there was no one left to speak out for me.

    .

    Ponce, one day you’ll look back and say damm, whose left to stand with me on the barricade?

  48. ponce says:

    Oh? And what is the evidence to support that claim?

    Well,

    I offer up our air war against German and Japanese civilians during WWII as exhibit A.

  49. Herb says:

    “the system, such as it is.”

    I love this answer. Simple but complete.

    It’s also the answer I had for the birthers, except I didn’t have that “such as it is.” That’s important, I think. Not so much as a flaw but to leave room for improvement.

  50. @ponce:

    Wouldn’t standing on a barricade leave you incredibly exposed to a drone attack?

  51. ponce says:

    Wouldn’t standing on a barricade leave you incredibly exposed to a drone attack?

    Haha, good point…I’ll see you under the barricades!

  52. Loviatar says:

    @ponce:

    Obama’s Dangerous al-Awlaki Precedent

    [W]hat we’re talking about is the establishment of a precedent by which a US president can secretly order the death of an American citizen unchecked by any outside process. Rules that get established on the basis that they only apply to the “bad guys” tend to be ripe for abuse, particularly when they’re secret…

    Uncritically endorsing the administration’s authority to kill Awlaki on the basis that he was likely guilty, or an obviously terrible human being, is short-sighted. Because what we’re talking about here is not whether Awlaki in particular deserved to die. What we’re talking about is trusting the president with the authority to decide, with the minor bureaucratic burden of asking “specific permission,” whether an American citizen is or isn’t a terrorist and then quietly rendering a lethal sanction against them.

    The question is not whether or not you trust that President Obama made the right decision here. It’s whether or not you trust him, and all future presidents, to do so–and to do so in complete secrecy.

    my highlights

    h/t Ta-Nehisi Coates

  53. mantis says:

    I offer up our air war against German and Japanese civilians during WWII as exhibit A.

    Care to compare that with the actions of Germany on the Eastern Front or Japan in China?

  54. ponce says:

    my highlights

    Lovitar,

    With the possible exception of “Because my religion says it’s so” I think slippery slope arguments ae the laziest form of argument.

    Awlaki was a unique problem that had a unique solution.

    Like I said, if Obama makes a habit of it, then I’ll be concerned.

    Care to compare that with the actions of Germany on the Eastern Front or Japan in China?

    True, but both Germany and Japan have bent over backwards to avoid any kind of conflict since their bad WWII behavior.

    The United States, OTOH, has careened across the globe leaving behind an almost unbroken trail of dead civilians and laughably weak excuses since the end of WWII.

  55. mannning says:

    @ponce:

    The United States, OTOH, has careened across the globe leaving behind an almost unbroken trail of dead civilians and laughably weak excuses since the end of WWII.

    You forgot your history, didn’t you? You forgot that the Congress authorized the engagements and voted over and over to pay for them, even when it was fully in the hands of the Democrats. You forgot that there were some 20 or 21-odd reasons for the Iraq invasion, each of which would have been sufficient to justify our actions. You forgot the other, larger and overarching trail of dead militant jihadists that used their women and children as shields, behind which they fired away at our troops.

    You forgot the war they declared on us, and the pow wows they held to plot their terrorist acts that included houses deliberately stuffed with their families, hoping to avoid the Hellfire missiles that surely rained down to obliterate all of their lives. Perhaps you also forgot the many thousands of deaths and the destruction heaped on us and our friends over 10 or 15 years by the jihadists, for which they now reap their tenfold reward of virgins. You most probably forgot the orders of the tribal chieftans for the civilians to stay fixed in place while the jihadists maneuvered around and through their positions shooting all the while, thus drawing our fire to all of them.

    It is obvious that you were not there, you didn’t have to face the IED’s that took so many lives and legs, nor did you experience the rage as rule of engagement prohibited a clear response all too often. Oh, but you did read the false civilian casualty reports from the enemy, didn’t you, believed them, and faulted your own nation often for something planned to effect that response by the jihadists? Truly, you are a laughable armchair pacifist, aren’t you, and seemingly anti-American in the bargain?