The US Supreme Court ruled in 1982 that presidents were immune from civil proceedings
White House blames Islamic resistance in Iraq for drone attack in Jordan
Three US soldiers were killed and 34 injured in a drone attack on a base in Jordan.
The claim: A 1982 Supreme Court ruling granted Obama “presidential immunity” for the drone strike that killed a U.S. teenager in Yemen
An Instagram post from July 2 (direct link, archive link) seeks to provide an explanation for why a former president was not prosecuted for a drone strike that killed a U.S. citizen abroad.
“Obama was not charged for attacking 16-year-old American citizen Abdulrahman al-Awlaki with a drone in 2011,” reads the image, which is a screenshot of a post on X, formerly Twitter. “Why? Because Obama had immunity as president. This is nothing new. The Supreme Court ruled on this 40 years ago. But if the Democrats want to pretend it’s new, then the Justice Department needs to start retroactively charging Barack Obama with murder. It’s that simple.”
The headline of the post reads: “Obama escaped prosecution due to presidential immunity from drone strikes.”
The post received over 5,000 likes within a week. The X post was reposted over 1,000 times in the same period.
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Our rating: False
Although the Supreme Court ruled in 1982 that presidents enjoy immunity from civil liability, its decision does not apply to criminal prosecution. It was not until its most recent decision in a case involving former President Donald Trump that the court addressed the question of whether presidents enjoy immunity from criminal prosecution, according to legal experts.
1982 Supreme Court decision finds presidents immune from civil liability
Abdulrahman al-Awlaki, a 16-year-old Denver native, was killed in a U.S. drone strike in Yemen on Oct. 14, 2011. He was not the intended target, according to court documents from a lawsuit filed years later. But his father, Anwar al-Awlaki, a U.S. citizen who worked as a propagandist for al-Qaida, had been the target of a drone strike about two weeks earlier. Obama announced the elder al-Awlaki’s death during a ceremony for his outgoing chairman of the Joint Chiefs of Staff.
Obama was not prosecuted for the teen’s death, but the claim in the Instagram post that a decades-old Supreme Court decision is the reason is false. In 1982, the Supreme Court ruled that presidents enjoy absolute immunity from liability for civil damages for all actions within the “outer scope” of the duties of the office. But that decision only applies to civil cases – the court’s opinion specifically states that it “provides no protection from criminal prosecution.”
The court’s much more recent decision on July 1 to grant former presidents some immunity from criminal prosecution for their official actions was the “first time in history” that it had ruled on this issue, said Corey Brettschneider, a political scientist at Brown University and author of a book on presidential abuses of power.
While the court’s older decision protected presidents from civil liability, Brettschneider said the court’s newer decision “extends that possibility to criminal cases for the first time.”
“That’s the new thing about it,” he said.
Fact check: No, Biden did not order the arrest of Supreme Court justices
While not law, there is also a longstanding Justice Department policy of not charging a sitting president with a federal crime. A statement from the department’s Office of Legal Counsel said such a move would “unconstitutionally undermine the executive branch’s ability to act.” Former special counsel Robert Mueller invoked this policy toward the end of his investigation into former President Donald Trump when he said charging Trump was “not an option,” USA TODAY previously reported.
A lawsuit filed on behalf of some of the families of those killed in the drone strikes said the strikes “violated the fundamental constitutional guarantee that prohibits killing without due process.” It named several Obama administration officials as defendants, but not Obama himself. A federal judge ultimately dismissed the lawsuit, ruling that the officials “could not be held personally liable for financial damages for conducting the war,” the Associated Press reported.
A document released in response to another lawsuit filed by the American Civil Liberties Union lays out the president’s policy on drone strikes, often referred to as a “playbook,” saying Obama must personally authorize the killing of a U.S. citizen targeted by a drone strike outside a combat zone, Politico reported.
In 2001, shortly after the September 11 terrorist attacks, federal lawmakers authorized the president to use “all necessary and appropriate force against those countries, organizations, or individuals that he determines planned, authorized, committed, or supported the terrorist attacks… to prevent future acts of international terrorism against the United States.” A similar measure was passed before the U.S. invasion of Iraq.
Since then, several presidents, including Obama, Trump and Biden, have used these authorizations as legal justification for drone strikes. Obama’s attack on Anwar al-Awlaki was justified in part because his ties to al-Qaida put him “within the scope” of the authorization, according to a 2014 administration memo, The Washington Post reported.
USA TODAY reached out to the social media user who shared the post for comment but did not immediately receive a response.
Our fact-checking sources:
- Corey Brettschneider, July 9, phone interview with USA TODAY
- The Washington Post, October 22, 2011, US airstrike that killed American teenager in Yemen raises legal, ethical questions
- The Washington Post, June 23, 2014, Legal opinion published justifying drone strike that killed American Anwar al-Awlaki
- American Civil Liberties Union, June 4, 2014, Al-Aulaqi v. Panetta – Constitutional challenge to the killing of three U.S. citizens
- American Civil Liberties Union, April 23, 2019, ACLU v. DOJ – FOIA case for records related to targeted killing laws, policies, and victim counts
- Justia, accessed July 10, Nixon v. Fitzgerald, 457 US 731 (1982)
- Case text, accessed July 10, Nixon v. Fitzgerald
- Office of Legal Counsel, October 16, 2000, A Sitting President’s Willingness to Impeach and Prosecute
- Associated Press, April 4, 2014, Judge dismisses drone strike lawsuit
- Politico, August 6, 2016, Obama publishes “playbook” for drone strikes
- Congress.gov, September 18, 2001, SJRes.23 – Authorization for the Use of Military Force
- Congress.gov, October 16, 2002, HJRes.114 – Resolution Authorizing the Use of Military Force Against Iraq of 2002
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