Targeted Assassination of American Citizens

I was going to write about the President designating Alwaki as an enemy combatant and putting him on a targeting list.

I’m not terribly enthused about it, though it is quite the right thing to do. But rather than write about it myself, I’d direct you to Andy McCarthy, who puts his big brain to work on the topic of the legality of it.

When I say Obama’s decision was “obviously” correct, I am talking about the question from a constitutional standpoint. If we have American citizens who are fighting for the enemy in a war, some official of the government has to be responsible, in an ultimate way, for how we deal with that. In our system, that is the president. There can be no credible dispute about that. The Constitution makes the president the commander-in-chief, and thus the official responsible for the conduct of war. To the extent it was any of the courts’ business, the Supreme Court has held that there is no difference between American and alien enemy combatants — if they are fighting for the enemy, they can be treated as enemy combatants, meaning they can be killed or captured and detained outside the civilian justice system. The president is unquestionably the one to whom the Constitution entrusts this call.

13 thoughts on “Targeted Assassination of American Citizens”

  1. Hmmm Methinks that when an American citizen becomes a member of an orginization that plots to kill other American citizens and overthrow the Government to replace it with an islamic theocracy then that Citizen loses his American citizenship and becomes an outlaw with no country or nation as his own.
    Thus he can be targetted and killed or captured.
    But what do I know I’m just a l’il fish in this big ocean.

  2. I’m no legal beagle, but I don’t see how he would lose his citizenship per se, but he would certainly become an unlawful combatant and liable to be attacked.

  3. I have to strongly disagree. Specifically in the Constitution we have it laid out what constitutes and how to prosecute Treason (the only crime explicitly spelled out in the Constitution). The justification for killing US citizens is that they are committing treason, when in fact constitutionally the Constitution explicitly says what the procedures are…and the Constitution doesn’t say that the President can just assassinate whoever he thinks is guilty of treason. This is from the Constitution and it sounds like Alwaki fits it perfectly and is precisely why assassination would be unconstitutional:
    “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
    Obama should be impeached for this clear violation of the Constitution.

  4. If he was captured, then he’d be liable to trail and conviction under those grounds. But where does the Constitution say that the Commander in Chief cannot fight those who are fighting the US? What if Osama bin Laden has US citizenship? Are you saying that US forces would have had to shape their efforts to avoid killing him?

    He isn’t being targeted as punishment for treason, but rather as a military objective to prevent further terrorist attacks on the US or its interests. That’s a fine distinction, but an important one.

    Further, the REASON that treason was so clearly spelled out in the Constitution was the abuse of the charge of treason by the English, where anything the King didn’t like was declared treason.

  5. By definition, if we accept Lincoln’s definition of what the Civil War was (a rebellion of the citizens of the Southern States against the Federal Government), then to accept that the President doesn’t have the authority to order troops to fire upon those citizens without a trial of some manner implies that President Lincoln didn’t JUST suspend Habeaus Corpus, he assassinated hundreds of thousands of US Citizens.

    Of course, no Southerner would claim that to be true, since by their POV, they were a separate country which the United States declared war on. So from their standpoint, the killings were just war.

    AFAIK, one of the surefire ways to lose your US citizenship is to sign up for a foreign army. I’d make allowances for joining a known terrorist organization, but then again, I’m a hardass about this kinda stuff.

  6. I am a legal beagle (yes, throw the rotten fruit). Not the best, but I do know a few things. First Its been held for a while that you be deprived of your American citizenship. (Trop v Dulles) You can give it up. But its a violation of the constitution to strip someone of their citizenship as a penalty for a crime.

    Second, the analogy to the Civil War (War of the Rebellion/War of Northern Aggression take your pick) is that it occurred as a de facto war, governed by the understood rules of war at that time. With the Civil War, the USG was using the military to reimpose the authority of the United States over states that were in rebellion and trying to secede. There was military action. The Supreme Court has recognized this apparently (I do not have a case cite for it) according to the article. They were not (in most cases) targeting individual citzens for execution.

    In the case of the GWOT/Long War, we have the ability to target individuals for assassination in a variety of ways. A person operating as an unlawful combatant, who was killed in action, would not be the same as unlawful combatant killed through a targeted killing aimed at him (i.e. Predator strike). A targeted assassination of a US citizen could be construed as an extra-judicial killing and therefore would be illegal.

    Also, its not an automatic that serving in a foreign military will result in a person surrendering their citizenship. Many served in the British and Canadian militaries during both World Wars, and I know some who have served in the IDF.

    As much as I’d like to Awlaki dead, I think that a targeted killing would be an extra-judicial execution. It would be different if he was in a firefight with U.S. forces and ended up being killed. That’s combat. If he was caught and resisted, that too would be another story. But I think we need to be very leery about committing to any branch or person the power to order the death of a U.S. citizen just because they are outside U.S. legal jurisdiction. At that point, whats to stop the next administration from taking it a little further and ordering a targeting killing of another person who had advocated a non-violent insurgency (take a look at the MHQ article about the Desegregation movement in 1950s and 1960s if you want an example) against the USG but was living outside the US jurisdiction and was a US citizen?

  7. I am not a legal beagle but I disagree. (Never let ignorance stand in the way of a good argument).

    It seems to me that even though Alwaki is an American citizen, that status is subordinated by the fact that his is serving in a leadership role in a organization engaged in armed conflict with the US from outside it’s borders. That combination should make him as eligible for targeted assassination as Yamato was in WWII.

    If he was a member of the Weather Underground I would say things are different because he is in the US. Same if he was just a serial killer targeting Americans overseas or if he was the equivalent of an al-Qaeda PFC. It is the sum total of his position that makes him eligible for assassination.

    I bet some OLC lawyer could write a brief supporting my position.

  8. “LETS JUST TARGET THE LICE OR FLEAS IN HIS HAIR AND ON HIS BODY, CALL IT PARASITE CONTROL AND APOLIGIZE WHEN THE ACTION RESULTS IN THE UNFORTUNATE AND UNTIMELY DEATH OF SAID ALWIKI!” Then of course we will pay his family for the unfortunate side effects of our parasite eradication and name a street after him.

  9. Remember, to the left terrorism is a “law enforcement issue.” We see how they treat cops and DA’s.

    The left has waaay to much sympathy for scum like this because they see a class struggle not good vs. evil.

    THe left starts with the conclusion that these people are innocent and works back from there.

    We know the truth. Treason is punishable by death in time of war. Especially when the traitor doesn’t wear a uniform.

  10. That’s not entirely correct Chockblock. There are some on the left who don’t see this as a class struggle, at least on this issue. The question is how we operate under our Constitution in a time of undeclared war. While not unique, there are some wrinkles to this conflict that were not contemplated in the past.

    Do we say that the USG has the power to kill a US citizen for advocating the overthrow of our way of life (take out the violence part) just because we have left US territory? If so, how do we reconcile this with our constitutional rights?

  11. What makes the Alwiki situation different is that he is actively pursuing his goal through an organization with military weaponry. When a person is actively pursuing the death of other US citizens with military type weaponry we have no choice but to take him out. The circumstances he is living under would make a normal arrest nearly impossible. Even if he were hiding in NY, say, but surrounded with people that would make the normal arrest problematic, killing him would be legit. The actions taken with several gangsters in the 20s and 30s (Bonnie and Clyde, Dillnger, f’rinstance) give weight to such a point. The constitution is not a suicide pact and needs to be obeyed, but the situation needs to be considered as well.

    The business of the war between the states is not even relevant in this situation. What was done with Jefferson Davis give a great deal of force to this point. Two Attorneys were asked to try Davis for treason. Both turned it down for the same reason – Davis did not commit treason. He was the President of a sovereign country that defended its independence. The North fought a war of conquest to bring the country back under the political suzerainty of a politically and economically dominant north. As such, Davis was beyond the reach of anything other than a political prosecution. Judicial murder was reserved for the like of Henry Wirz whom the military were able to lay hands on without political consequences.

  12. I think Jenn is on the right track here. He’s not being targeted as an American, but rather as a key element of an enemy organization.

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