The actual legal reasoning the Department of Justice used to kill an American? It is a secret.


Months ago, the Obama Administration revealed that it would target al-Awlaki. It even managed to wriggle out of a lawsuit filed by his father to prevent the assassination. But the actual legal reasoning the Department of Justice used to authorize the strike? It’s secret. Classified. Information that the public isn’t permitted to read, mull over, or challenge.

Why? What justification can there be for President Obama and his lawyers to keep secret what they’re asserting is a matter of sound law? This isn’t a military secret. It isn’t an instance of protecting CIA field assets, or shielding a domestic vulnerability to terrorism from public view. This is an analysis of the power that the Constitution and Congress’ post September 11 authorization of military force gives the executive branch. This is a president exploiting official secrecy so that he can claim legal justification for his actions without having to expose his specific reasoning to scrutiny. As the Post put it, “The administration officials refused to disclose the exact legal analysis used to authorize targeting Aulaqi, or how they considered any Fifth Amendment right to due process.”

The rest Here.


Many see this as killing a bad guy and so who cares. But “who cares?” denies basic rule-of-law. Either the constitution matters or it doesn’t. We assume ALL criminals are bad guys. They still get a fair trial by a jury of their peers.

No matter where their criminal acts occur, we give them a fair trial. al-Awlaki could have been tried in-absentia and sentenced to death and this wouldn’t be an issue. He wasn’t killed on an actual battlefield or anywhere near one.

Since we don’t even have the faintest idea as to the legal reasoning behind this decision, it is a classified secret, we don’t know if this same “reasoning” could be used to justify killing an American citizen in Britain or even Cleveland. We also don’t know if it means American citizens can be killed by executive fiat for alleged crimes like rape, grand theft or shop lifting in foreign nations or again right here at home. What is the legal logic? It’s a secret.

In fact, given what we think we know concerning al-Awlaki, did he commit a death penalty offense assuming he were tried and convicted right here in the US? What exactly was he accused of? Was he a bad guy? Undeniably. What sets him apart from a thousand or a million bad guys across the nation? Is every accused American now subject to Predator strikes? For which crimes might we expect holy hell to rain down upon us? It is a Secret.

This ties in quite closely to an article in the Telegraph.

Russia ‘gave agents licence to kill’ enemies of the state

The Russian secret service authorised the “elimination” of individuals living overseas who were judged to be enemies of the state and ordered the creation of special units to conduct such operations, according to a document passed to The Daily Telegraph.

Are we giving the executive branch a license to kill? Clearly Obama did not pull this trigger. Are we not only giving him a right to kill but to issue licenses to sub-ordinates to kill as well? Does he only get to kill muslims? Will he be able to pull the trigger on any dissident or tax evader? Given the current humanistic religion in Washington will Christians someday make the list? Does the legal reasoning restrict the President’s new license in anyway? Did he have to take a practical skills test? A vision test? Are there any limits at all on this new executive privilege? We don’t know.

It is a secret.


Amendment 5

No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in cases arising
in the land or naval forces, or in the Militia, when in actual service in time
of War or public danger; nor shall any person be subject for the same offense
to be twice put in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall private property be
taken for public use, without just compensation.

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October 3, 2011 2:30 pm

Hard questions and good points Rogue. If Bush had done this I think we know what we’d be hearing now from the liberal media. Being it was their Anointed One who authorized it all we hear are congratulations. “Oh look, he’s so hard on terror! He’s defending the Country!” I would gladly have pulled the trigger on that POS myself but that doesn’t make it right and it doesn’t level the slippery slope we are sliding down.

Mike gamecock DeVine
October 3, 2011 11:22 pm

My second career as a newspaper columnist was launched soon after 911 when my first Champion (Decatur, Ga) newspaper column re exec war powers was picked up by many newspapers across the country. For that reason, I have researched this area of the law/war law on most of the issues re enemy combatants and Executive war power for the past decade. I can’t go into detail just now and will try and locate prior columns that address this issue, most of which cite Congressional acts since 911, BUT I would also contend that yes, in one sense we are always… Read more »

October 4, 2011 6:06 am

You know whats funny about this? I couldn’t be happier the SOB is dead but the hypocrisy of Obama and the left on waterboarding which I would suggest is a lot more humane then a hellfire missile up your rearend is sickening. I watched those jackasses for 5 years attack Bush day after day and to watch them do whatever they want in Libya and Yemen and any other Country they want is just maddening!

St George Frederick
October 4, 2011 7:11 am

Our killing Americans on the battlefield is not uncommon.Thousands of Germans and nisei-sansei Japanese wore the former homeland’s uniform.

But the official targeting of an American, even a high-value one, found “on the battlefield” raises questions, but alas, academic ones.

October 4, 2011 8:36 am

It’s about trust. Let’s see, Holder wrote a secret finding, Obama says he saw it, then we must trust Obama it’s OK for him to off a US citizen. First thing we the public know, the guy’s already dead. My first impression?….no there’s something wrong about this ohe.

October 4, 2011 8:55 am

GC, totally unrelated question, but saw you here. Can a SCOTUS justice be compelled to recuse him/herself from a case, as we assume Kagan should on the healtcare appeal?

October 4, 2011 8:59 am

I assume this “hidden reason” is to protect themselves from the Left, as it contradicts their more public statements.

I have no problem with the sanction, but as every public official knows, you don’t have to make it public, and in some cases, shouldn’t. Had al Ahwaki simply disappeared off the map, no one would have been the wiser.

If we could goad the Left to ask these tough questions, it would be better.

Queen Hotchibobo
October 4, 2011 3:54 pm

Good post, Rogue. We have to defend the Constitution and its protections, even when bad guys get some benefits from it. No President should be allowed to order hits on American citizens without due process.

OTOH, if a Marine catches one of the suckers shooting at him from behind a burka, we oughta make him leak like a sieve.