Attorney General Eric Holder was at Northwestern University Law School yesterday explaining President Barack Obama’s claimed authority to kill any American if he unilaterally determines them to be a threat to the nation. The choice of a law school was a curious place for discussion of authoritarian powers. Obama has replaced the constitutional protections afforded to citizens with a “trust me” pledge that Holder repeated yesterday at Northwestern. The good news is that Holder promised not to hunt citizens for sport.
Holder proclaimed that “The president may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war — even if that individual happens to be a U.S. citizen.” The use of the word “abroad” is interesting since senior Administration officials have asserted that the President may kill an American anywhere and anytime, including the United States. Holder’s speech does not materially limit that claimed authority. He merely assures citizens that Obama will only kill those of us he finds abroad and a significant threat. Notably, Holder added “Our legal authority is not limited to the battlefields in Afghanistan.”
The Obama Administration continues to stonewall efforts to get it to acknowledge the existence of a memo authorizing the killing of Awlaki. Democrats previously demanded the “torture memos” of the Bush Administration that revealed both poor legal analysis by Judge Jay Bybee and Professor John Yoo to justify torture. Now, however, Democrats are largely silent in the face of a president claiming the right to unilaterally kill citizens.
Holder became particularly cryptic in his assurance of caution in the use of this power, insisting that they will kill citizens only with “the consent of the nation involved or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.” What on earth does that mean?
He was more clear in establishing that due process itself is now defined differently than it has been defined by courts since the start of this Republic. He declared that “a careful and thorough executive branch review of the facts in a case amounts to ‘due process.’” Of course, from any objective standpoint, that statement is absurd and Orwellian. It is basically saying that “we will give the process that we consider due to a target.” His main point was that “due process” will now longer mean “judicial process.”
That last statement goes to the heart of the controversy. Many reporters have bought into the spin of the Administration that there are real limits to this power because they perform their own constitutional analysis for each killing. This starts with the presumption that the Constitution does not require these determinations to be made by a court or that they be subject to court review. They then redefine the protections of due process as a balancing test within the administration. This Administration has consistently maintained that courts do not have a say in such matters. Instead, they simply define the matter as covered by the Law Of Armed Conflicts (LOAC), even when the conflict is a war on terror. That war, they have stressed, is to be fought all around the world, including the United States. It is a battlefield without borders as strikes in other countries have vividly demonstrated.
The result is that they are claiming that they are following self-imposed “limits” which are meaningless — particularly in a system that is premised on the availability of judicial review. The Administration has never said that the LOAC does not allow the same powers to be used in the United States. It would be an easy thing to state. Holder can affirmatively state that the President’s inherent power to kill citizens exists only outside of the country. He can then explain where those limits are found in the Constitution and why they do not apply equally to a citizen in London or Berlin.
All the Administration has said is that they closely and faithfully follow their own guidelines — even if their decision are not subject to judicial review. The fact that they say those guidelines are based on notions of due process is meaningless. They are not a constitutional process of review. They are a dressed claim of process for a unilateral power. Presumably, the President can override the panel or disregard the panel. The panel is an extension of his claim of inherent unilateral authority.
If the “limit” is the internal review described by the administration, we are speaking a different language. Any authoritarian measure can be dressed up as carefully executed according to balancing tests, but that does not constitute “fifth amendment analysis,” “fourth amendment analysis,” or any constitutional analysis that I know of. It is at best a loose analogy to constitutional analysis.
This is precisely why the Framers rejected the “trust me” approach to government, as discussed in this column.
Since last year, U.S. drones have killed three Americans overseas.
Source: LA Times