Reality Check: Is Newt Gingrich right about the president's power to assassinate?

Newt Gingrich not only answered the question in length but he did so with a swagger that indicated the answer is simple and obvious.

I am going to look at three different statements Gingrich made but there is so much information, we are breaking this into 2 parts.  Tonight part 1, is Gingrich right about the specific case of Anwar al-Alwaki?

Let's begin with who Anwar al-Awlaki was.  Al-Alwlaki was a Muslim cleric in Yemen.  The U.S. government had said he was responsible for influencing the Fort Hood shooter, and the unsuccessful Christmas Day underwear bomber, as well as the failed Times Square bomber.  On September 30th of this year, al-Awlaki was killed by drone strike.

What is critical to this story, is that al-Awalki was a U.S. citizen, born in Las Cruces, New Mexico.

Two weeks after his assassination, a separate drone attack was used to kill his 16 year-old son, Abdulrahman al-Awlaki.  The 16-year-old, was at a family bbq.  He was also a U.S. citizen, born in Denver, Colorado.

So, the question...

"As President of the United States, would you sign a death warrant for an American citizen overseas who you believe is a terrorist suspect?"  asked anchor Scott Pelley of CBS News.

Gingrich answered, "Well, he is not a terrorist suspect.  He was a person who was found guilty under review as a person seeking the death of Americans"

Pelly fired back, "Not found guilty by a court sir."

Gingrich replied "He was found guilty by a panel who looked at it and reported to the President."

That is not true.

At least not to the extent that has been either made public by the administration or in the context of leaked information.  Here is what we do know, There wasn't a panel that determined al-Alwaki's guilt.  There is a roughly 50-page memorandum by the Justice Department's Office of Legal Counsel, completed around June, 2010.

That memo was writte not  by a panel but by two lawyers, David Barron and Martin Lederman.  The legal analysis, those two lawyers provided concluded that mr. al-Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and al Qaeda and posed a significant threat to Americans.

So on the first issue, there was not a legal panel that determined al-Awlaki could be killed, just two lawyers.  But there is more.

The memorandum written by those two lawyers was written more than a year before al- Awlaki was killed.  According to the Washington Post, who was leaked the memo, it did not independently analyze the quality of the evidence against him.  The Post goes on to say there is no evidence that a "review" took place that found al-Awlaki "guilty" in any meaningful constitutional or legal sense.

So what you need to know… even if Gingrich had been right,  there are a lot of American's who would say he was still wrong because the Constitution does not grant the President the authority to assassinate any citizen.

The Constitution however, does deal with this issue, citizens who wage war against the nation.  It is called treason.  It carries a death penalty but Article 3 states that "No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession."

And all of that happens in open court.

That is Reality Check.

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