Article 25

Ask the Unemployed Lawyer

In Uncategorized on 11/07/2011 at 11:02 am

Anwar al-Awlaki. Photo by REUTERS/Ho New.

The President’s Right to Kill Citizens

By U.L.


Dear U.L.:

 The president of the United States recently authorized the killing of an American citizen in Yemen. Anwar al-Awlaki had declared jihad on the United States, as had Osama bin Laden. But, as a U.S. citizen, wasn’t al-Awlaki entitled to due process of law? Bin Laden’s assassination might be a violation of international law, but isn’t the killing of the American “terrorist” a violation of the U.S. Constitution?

Hillary Clinton says there must be an investigation of how Muammar Gaddafi died. Rule of law and all that. Does she support an investigation of the U.S. assassinations of Osama bin laden and Anwar al-Awlaki? Well, does she, huh?

 Y. Doodle Dandy


Dear Doodle:


Great question, but it will be difficult to answer without writing something long, dry and boring as shit. Good thing I’m unemployed, so I have time to try.

The crux of the issue is more complex than simply deciding what is “constitutional.” All of these terrorist-related cases, including Guantanamo Bay detainees, deal largely with how the branches of government interact, specifically the executive (president) and judicial (courts) branches.

See, the “less government” conservatives have been working hard for the past 30 years at expanding the power of the executive branch and limiting the power of the courts. They want a strong president, an ineffectual Congress and a weakened judiciary, and they’ve been pretty successful.

Matters of state security – the war on drugs, the war on terror, high incarceration rates and limited judicial discretion in sentencing – have been quite a catalyst in achieving these goals. The only problem with the strong-executive philosophy is you have to make sure the guy in the White House is Your Guy.

(Make no mistake, though: President Obama seems to have no problem with a strong executive branch, either, as this case makes clear.)

The Anwar al-Awlaki case is indeed extraordinary, in that Obama issued a targeted-killing order in January 2010, which was perhaps the first time a president has ordered the killing of a U.S. citizen outside a combat zone. Drone missiles killed al-Awlaki in Yemen on Sept. 30, 2011.

The media reports of the targeted-kill list allowed al-Awlaki’s father to bring a federal lawsuit against Obama, Secretary of  Defense Robert Gates and CIA Director Leon Panetta. The lawsuit was filed Aug. 30, 2010, after lawyers received their special licenses to represent someone on the “Specially Designated Global Terrorists” list.

Not surprisingly, the case was tossed out a without hearing on its merits. But U.S. District Judge John Bates kindly wrote an 83-page opinion – issued in December 2010 – that directly and indirectly raises rather chilling issues. It’s a good barometer of where we are now politically, and it’s a good example (to a legal realist, anyway) of how a court can use “legal reasoning” to rationalize a foregone conclusion.

Bates asks “stark and perplexing questions” including: “How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death?”

And: “Can the executive 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?”

The “unsettling” answer is “that there are circumstances in which the executive’s unilateral decision to kill a U.S. citizen overseas is ‘constitutionally committed to the political branches’ and judicially unreviewable.”

So, the answer to your question is, quite simply, the president of the United States does not always have to answer to the Constitution, nor to the judicial branch. Take that, high school civics teachers! Turns out Richard Nixon was right all along: If the president does it, it isn’t illegal.

The case was thrown out for two reasons: 1. Al-Awlaki’s father lacked standing to bring the suit; 2. The issue fell within the “political question doctrine,” which has its roots in the landmark 1803 Marbury v. Madison decision, which expressed the court’s desire to not get involved in battles between government branches, and that some questions are best left to the political process.

So the court didn’t have to answer the issues raised by al-Awlaki’s father, which seem pretty fair questions for a father to ask when his son has been placed on a kill list: That the policy of authorizing targeted killings of U.S. citizens outside armed conflict violated his son’s Fourth Amendment right against unreasonable seizure and his Fifth Amendment right of due process of law. He also argued that the U.S. policy of targeted killings violates international law and treaties under the Alien Torts Statute.

Al-Awlaki sought a declaration that the killing of U.S. citizens is prohibited by the Constitution “except in circumstances in which they present a concrete, specific and imminent threat to life and physical safety, and there are no means other than lethal force that could reasonably be employed to neutralize the threat.” He also sought an injunction against the killing and an order to disclose what criteria is used to put a U.S. citizen on a kill list.

Standing is rooted in Article III of the Constitution, which limits the judicial power of courts to resolving “cases and controversies.” In other words, is the person before the court entitled to have the court decide the case? The general rule is that a party may not bring suit to assert the legal rights of another, but there are exceptions (there are always exceptions), and so al-Awlaki’s father sought standing under the “next friend” exception.

You would think that a father would have direct standing in a lawsuit when the government says it are going to kill his son, but you would be wrong. As the court points out, “a parent does not have a constitutionally protected liberty interest in the companionship of a child who is past minority and independent.”

So he had to assert his status as “next friend,” which originated with habeas corpus cases of detained prisoners who were unable to represent themselves because they were mentally or physically incapacitated.

You can probably see where this is going. The first requirement of establishing “next friend” standing is to present an adequate explanation for why the real party in interest cannot appear on his own behalf.  Saying that his son “was in hiding under threat of death” wasn’t good enough, especially when the government said in its brief that if al-Awlaki “does present himself, he is under no danger of the United States government using lethal force against him.”

So there’s another answer to your question: If al-Awlaki wanted to assert his constitutional rights, he had to present himself to the court: “All U.S. citizens may avail themselves of the U.S. judicial system if they present themselves peacefully, and no U.S. citizen may simultaneously avail himself of the U.S. judicial system and evade U.S. law enforcement authorities. Anwar Al-Aulaqi (sic) is thus faced with the same choice presented to all U.S. citizens.”

You can almost taste our Puritanical obsession with sex in there: If you want the milk, you gotta buy the cow, son. And, as the court points out, so what if he gets arrested and imprisoned? Prisoners have access to the judicial system, too. Except when they don’t.

The court explains that the father also failed the second part of the “next friend” standing test: That he is truly dedicated to his son’s “best interests” in preventing his killing. Maybe he wants to be killed! The court cites a recent case involving Gitmo detainees in which attorneys sought “next friend” status in habeas petitions: “While it may be fair to assume that the detainees want to be released from detention in Guantanamo Bay, there may be reasons why detainees may not want to file habeas petitions as a vehicle for accomplishing this purpose.”

That’s some classic lawyerspeak there. Sure, your clients might be wrongfully detained, but maybe they like being wrongfully detained, and who are we to go against their liberty to make that choice?

There’s much more about standing in the opinion, with third-party standing and the like, but it all revolves around the same idea: al-Awlaki was free to show up in court (even though he had a kill order against him and even the court acknowledged he might be indefinitely detained without charges being brought, which would deny him access to the courts), and his father didn’t have his son’s best interests at heart just because he doesn’t want to see him killed by a drone missile.

The claim under the Alien Torts Statute (ATS) was also thrown out with the novel logic that he couldn’t bring the claim on behalf of his son “alleging violations of Anwar Al-Aulaqui’s right to be free of an extrajudicial killing” because he’s a U.S. citizen. He also couldn’t make an ATS claim that he had the right to be free of any emotional suffering from his son’s death because there was no “consensus” on “whether the survivors of a tortiously killed child can recover damages.”

There’s also some talk of sovereign immunity – if you sue the president, you are suing the United States, and you can’t sue the United States without its permission.

And, finally, you gotta love this: “The Political Question Doctrine is essentially a function of the separation of powers and excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of  Congress or the confines of the executive branch. The precise ‘contours’ of the political question doctrine remain ‘murky and unsettled’ (citations omitted).”

The court then names six factors from a previous case that describes what makes up a political issue that can’t be decided by the courts, but then adds that “unfortunately, the Baker factors are much easier to enumerate than to apply.”

But the court sees trends (and maybe you can, too): “National security, military matters and foreign relations are quintessential sources of political questions.”

“Here, plaintiff asks us to … assess the merits of the president’s (alleged) decision to launch an attack on a foreign target. Although the ‘foreign target’ happens to be a U.S. citizen … any judicial determination as to the propriety of a military attack on Anwar Al-Aulaqui would require this court to elucidate the standards that are to guide a president when he evaluates the veracity of military intelligence.”

You could easily say the court wrote an 83-page rationalization dodging the real issue, but I think that would be incorrect. A problem I think many people have is that when they talk about “constitutional rights,” they think of individual rights, usually something in the Bill of Rights. But in a culture that no longer values the individual person – and boy, I can’t think of a better metaphor for that idea than a case involving the president killing a single citizen –  this is no longer the focus.

As you can see, the way the game is played today, the “constitutional rights” courts are more concerned with are the rights of the executive branch, the rights of corporations as people, the rights of your government to take your property to sell it to someone else, the rights of police to do their job.

The last corporation I worked for that outsourced much of its workforce was a big believer in the Rule of Law, too. The Rule of Law doesn’t have to be democratic. It can be quite authoritarian.


Never take the advice of an Unemployed Lawyer. Always consult with an attorney for any legal advice in your situation. If, however, you want to ask, write to



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