Can the President of the United States kill American citizens without a trial?
According to President Obama, the answer is yes. At least two American citizens have been targeted and killed by the Executive Branch by the targeted use of mechanized drones. One was Anwar al-Awlaki, who was killed in September 2011 in Yemen for alleged terrorist activities.
Al-Awlaki’s 16 year old son, also an American citizen, was killed two weeks later by a drone, also in Yemen.
The Obama Administration has refused to provide its legal analysis justifying its targeted killings of American citizens. On January 2, 2013, a federal judge dismissed a Freedom of Information Act request by journalists and lawyers who requested such legal memoranda, concluding that the legal analysis was protected by government privilege exemptions.
While it is impossible to fairly analyze the Obama’s Administration position without hearing its point of view, there is a high bar — perhaps an impossible bar — in justifying these actions.
First, the Bill of Rights provides, plain as day, that a person cannot be deprived of “life, liberty or property” without due process of law. (U.S. Const., Amend. V.)
This provision of the Bill of Rights is based on Chapter 39 of Magna Carta, which declares, “No freeman shall be taken or imprisoned, or disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor shall we go upon him, nor condemn him, but by lawful judgment of his Peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right.” (Regnal. 25 Edw. 1 cc. 1 9 29.)
On its face, then, killing an American without providing notice of charges and a trial — basic constitutional protections — is unconstitutional and in direct violation of centuries of Anglo-American tradition.
Second, to the extent that al-Awlaki was engaged in war against the United States, then he was violating United States law by engaging in treason against the United States. Treason is defined in the Constitution and 18 U.S.C. § 2381:
Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort with the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years, and fined under this article…
As a traitor, al-Awlaki was still entitled to the protections of the Bill of Rights and should have been afforded a trial. The Constitution specifically provides that a finding of treason may only take place upon “the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” (U.S. Const., Art. III, sec. 3.)
Perhaps the Administration’s best argument in defense of killing American citizens is that the United States has the ability, at any time, to neutralize imminent threats who seek to harm or destroy American assets or innocent lives, and can do so through the use of drones. The Supreme Court has acknowledged that in the heat of battle, due process protections may be unavailable because of the reality of war.
But if this is the justification for killing Americans, the Obama Administration must still nonetheless explain why and how such an exception reaches someone living in Yemen – and this could open troublesome questions as to whether the United States is technically in a state of war (notwithstanding the rhetoric of the “War on Terror”), the justification for firing drones in another sovereign country like Yemen, and how success in any such war will be measured. These are questions that have yet to be be answered by anyone in power, eleven years after 9-11.
Indeed, it is possible that President Obama committed a criminal act by targeting and killing an American citizen. The United States Criminal Code makes it a crime for a “national of the United States” to “kill or attempt to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country.” (18 U.S.C. § 1119). The law provides no exception for the President (who is a national of the United States).
In dismissing the FOIA request, Judge McMahon was obviously troubled by her own decision. She wrote, “The FOIA requests here in issue implicate serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States, and about whether we are indeed a nation of laws, not men.”
But she concluded, “However, this Court is constrained by law . . . I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.”
James Madison, fourth United States president and chief drafter of the Constitution, once counseled, “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.” There is no greater power than the power of the Executive to kill, and this power has been constrained for hundreds of years by the rule of law. We live in an era when such power goes increasingly unchecked.