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The President Has Constitutional Power To Target And Kill U.S. Citizens Abroad

The BriefGet Up To Speed

With the drone strike on accused terrorist and New Mexico-born Anwar al-Awlaki in Yemen, President Obama has tested the limits of the executive branch'€™s powers. Does the president have constitutional authority under the due process clause to kill U.S. citizens abroad, or is it a violation of this clause to unilaterally decide to target and kill Americans?


There is nothing extraordinary about the administration’s position, which actually claims very little in the way of power to target Americans.

Wednesday, February 27, 2013
Benjamin Wittes

While no court approved the killing of Mr. Awlaki, it is not accurate to say that he was targeted without due process. What due process requires depends on context.

Friday, September 30, 2011
Jack Goldsmith

The Constitution requires the government to obtain a judicial warrant based on probable cause before it can search your backpack or attach a GPS tracking device to your car, but not, according to Attorney General Holder, before it kills you.

Tuesday, March 6, 2012
David Cole

The most extremist power any political leader can assert is the power to target his own citizens for execution without any charges or due process, far from any battlefield.

Tuesday, February 5, 2013
Glenn Greenwald
Administration Position

This white paper sets forth a legal framework for considering the circumstances in which the U.S. government could use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force of al-Qa’ida.

Tuesday, November 8, 2011
Department of Justice White Paper

In this speech, Holder outlines the legal principles that guide the Administration’s national security efforts.

Monday, March 5, 2012
The United States Department of Justice

The traditional conception of what constitutes an 'imminent' attack should be broadened in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.

Friday, September 16, 2011
Remarks of John O. Brennan
Legal Framework

Legal background—what is known about the Administration’s position and possible points of contention among legal experts and other observers, including the view from abroad.

Friday, May 4, 2012
Jennifer Elsea

The Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be "deprived of life, liberty or property without due process of law." The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law ("legality") and provide fair procedures.<a name="AUMF" id="AUMF"></a>

Wednesday, December 31, 1969
Legal Information Institute

AUMF authorizes the President to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.<a name="Internationalhumanitarianlaw" id="Internationalhumanitarianlaw"></a>

Tuesday, September 18, 2001
Signed by the President

International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It is also known as the law of war or the law of armed conflict.

Wednesday, December 31, 1969
Relevant Court Decisions

Detained U.S. citizens captured overseas as enemy combatants must be given the opportunity to contest their detention before a neutral decision maker.

Tuesday, March 28, 2006
Supreme Court

Court ruling that prisoners held at Guantanamo Bay have the right to habeas corpus.

Wednesday, December 5, 2007
Supreme Court

How much process is due depends on a balancing of interests.

Monday, October 6, 1975
Supreme Court

This ruling permits citizens to sue government officials for violating their constitutional rights.

Tuesday, January 12, 1971
Supreme Court
Due Process

Even in the war on terror, due process demands at least an independent, intra-executive investigation of targeted killing by the CIA.

Sunday, March 1, 2009
Afsheen John Radsan and Richard Murphy

This article analyzes the Obama Administration’s procedures for placing American citizens on the list of targets for drone strikes and proposes additional measures Congress and the President can take to ensure that the procedures comply with constitutional guarantees of due process.

Sunday, December 1, 2013
Alberto Gonzales

This Issue Brief examines the procedural requirements of the Due Process Clause when the United States uses lethal force in areas outside of active hostilities abroad.

Tuesday, October 1, 2013
Deborah Pearlstein

The ACLU’s Jaffer and Berkeley law professor Yoo debate whether al-Awlaki deserved due process.

Monday, October 3, 2011
Larry Mantle hosts Jameel Jaffer and John Yoo

The President and his advisors should rethink the White Paper’s faulty reasoning, and we should all keep in view the difference between ‘the essential constitutional promises’ due process embodies, and the modes of military decision that our government employs in waging war.

Friday, June 21, 2013
Jeff Powell
In the News

Abdullah al-Shami, a militant who American officials say is living in the barren mountains of northwestern Pakistan, is at the center of a debate inside the government over whether President Obama should once again take the extraordinary step of authorizing the killing of an American citizen overseas.

Friday, February 28, 2014
Mark Mazzetti and Eric Schmitt

The case of an American citizen and suspected member of al-Qaida who is allegedly planning attacks on U.S. targets overseas underscores the complexities of President Barack Obama's new stricter targeting guidelines for the use of deadly drones.

Monday, February 10, 2014
Associated Press

The Obama administration is weighing whether to approve a lethal strike against a U.S. citizen who is accused of being part of the al-Qaeda terrorist network overseas and involved in ongoing plotting against American targets.

Monday, February 10, 2014
Greg Miller