Can the President Now Kill Americans?
Never mind the Supreme Court and immunity; he’s had the power to kill an American citizen since 2010.
The post Can the President Now Kill Americans? appeared first on The American Conservative.
Can the President Now Kill Americans?
Never mind the Supreme Court and immunity; he’s had the power to kill an American citizen since 2010.
Associate Justice Sonia Sotomayor, in her dissent from the Supreme Court’s majority decision in Trump v. United States to grant the president immunity from criminal prosecution for official acts he commits while in office, wrote:
The long-term consequences of today’s decision are stark…. The president of the United States is the most powerful person in the country, perhaps the world. When he uses his official powers in any way, under the majority’s reasoning, he will now be insulated from criminal prosecution. Orders the Navy’s Seal Team Six to assassinate a political rival? Immune.
Picking up on Sotomayor’s fears, left-wing media and pundits fantasized about President Joe Biden having Donald Trump and the conservative Supreme Court justices killed as an official act following the Supreme Court’s presidential immunity decision. “If I was Biden I’d hurry up and have Trump murdered on the basis that he is a threat to America’s security,” a radio host wrote on X. Is that OK now, as he reasoned?
The biggest problem with willy-nilly assassinations is the Fifth Amendment, which provides for due process before an American is deprived by the government of life, liberty, or property. Capital cases require a grand jury. So while Biden may claim immunity if ordering Trump’s murder, he can’t get around the unconstitutional nature and thus impeachability of his action, immunity or not. Right?
Where things start to get fuzzy is with the assassination thing and Seal Team Six. The Seals conduct targeted killings all the time, nailing a terrorist here, an insurgent there across the Middle East. Officially these are labeled as “catch or kill” missions, but there seems to be very little catching. The bin Laden raid is one high-visibility example where the kill option was explicit and primary. Of course when the Seals are busy elsewhere, drone assassinations are always a presidential option, as in the case of the Iranian General Qasem Soleimani. None of these people are Americans with any Constitutional rights, and none were killed on American soil, so it all falls loosely under some category of acts of war (or whatever). Which brings us to Anwar al Awlaki.
Al Awlaki and his 16-year-old son were American citizens assassinated via targeted drone attack in Yemen by the United States in autumn 2011. Al Awlaki was once friendly with the American military; in the aftermath of 9/11, he lunched at the Pentagon. A few years later, the same U.S. government linked al Awlaki to al Qaeda, deciding he was a propagandist who might be agitating online for Westerners to join the cause.
In 2012, defending the al Awlaki killing, Attorney General Eric Holder said the “U.S. can lawfully target American citizens” and “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’” It was unknown at the time, but Holder was citing a then-secret white paper prepared by the Office of the Legal Counsel, which gave the legal justification for the American government to kill one of its own citizens extrajudicially in apparent violation of the Fifth Amendment.
The white paper was finally released in 2014 and showed a convoluted process had been created to sort of legalize the American citizen killings and thus render the president immune for having ordered them. The document’s central argument is that “an informed, high level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States.” Capture must be for all practical purposes off the table, and the kill must conform to the laws of war.
The justification flows perversely from there: The president is obligated to protect the nation, al Qaeda vel sim. pose threats to the nation, and being in al Qaeda is more relevant than the target’s citizenship or where he is at the time (“citizenship does not immunize the target”). If the U.S. decides the host nation is “unwilling or unable to suppress the threat posed by the individual targeted,” sovereignty issues are no object. But what about that due process promised Americans in the Fifth Amendment?
The Fifth Amendment right to due process (and, perhaps, the Fourth Amendment right against unwarranted seizure—that is, seizure of a life) is shrugged off. The white paper claims that the U.S. interest in “forestalling the threat of violence and death to other Americans that arises” outweighs a citizen’s constitutional right. This is described as part of a Fifth Amendment “balancing process.”
This process, according to the white paper, stems from a 1976 Supreme Court case, Mathews v. Eldridge, where the Court held that individuals have a statutorily granted property right in Social Security benefits, that the termination of those benefits implicates due process, but that the termination of those benefits does not require a pre-termination hearing. The Fifth Amendment balance test to apply to murders has three components (notes added):
(1) The importance of the private interest affected. [In a kill case, the private interest is the life of an American citizen.]
(2) The risk of erroneous deprivation through the procedures used, and the probable value of any additional or substitute procedural safeguards. [In a kill case, since the American will be dead, it is impossible to ever “correct” the mistake. The Court held that “If the risk of error is minimal, then the need for additional procedures declines. If the risk is high then additional procedures would be merited.” So, with the potential of a recoverable error, less process is needed. The more serious a mistake might be if committed, the more (perhaps non-judicial) process needed.]
(3) The importance of the state interest involved and the burdens which any additional or substitute procedural safeguards would impose on the state. [According to the kill white paper, the idea that killing the American saves potentially thousands of other Americans lies is the state’s interest. The burden of the U.S. government to follow any procedural safeguards, such as a trial in absentia where the target could have his side presented by a lawyer, is not addressed in the kill white paper]
In short, the balancing test says that in some situations, the president can kill an American citizen extrajudicially. No need for Supreme Court–granted immunity; like Dorothy in the Wizard of Oz, he has always (at least since 2010) had the power.
“Where national security operations are at stake, due process takes into account the realities of combat,” then-Attorney General Eric Holder said. “Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate… our government has the clear authority to defend the United States with lethal force [and] our legal authority is not limited to the battlefields of Afghanistan.”
So can the president really kill an American in America? There are no known test cases, but some very disturbing testimony by then–FBI Director Robert Mueller.
Mueller, appearing before a House subcommittee in 2012 on whether the same criteria used to kill Americans abroad also would apply in the United States, and whether the President retained the “historical” right to order such an assassination on American soil, said that he simply did not know. “I have to go back. Uh, I’m not certain whether that was addressed or not,” he said. “I’m going to defer that to others in the Department of Justice.”
Note that Mueller had the option of saying, flat-out, “No, no, of course not, the FBI can’t order an American killed in the U.S.” Or, maybe, “No, even the President can’t order a hit on an American here in the U.S. where the full judicial system, Constitution, and other protections apply.”
Mueller did not say those things. Instead, under oath before Congress, the senior G-man of the United States, bound by oath to uphold the Constitution, was so worried about perjury that he was unable to say whether or not the U.S. government can indeed kill one of its own citizens inside the United States without trial.
Immunity 2024 may have its dangers, but it is only a small part of the problem given the vast expansion of presidential capital power in the aftermath of 9/11. Best watch your back.
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