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
Arthur says, “We have progressed significantly from those bad old days.” Those sorts of comparisons are not useful; tantamount to ‘we’re not as bad as we could be”, or ” . . . used to be”. Where there has been progress, terrific. Where there is none, or even regression — and we have the knowledge that indicts this downward trend, even if only a ‘part’ of the picture, it deserves rebuke. Ignoring condemnatory specifics because (you) see and overall upward trend, is a tendentious way to argue.
I acknowledge areas of progress. I find it curious to argue for authoritarian trends, at all, in the supposed ‘shining light on the hill’.
I find it kind of ironic that it’s two black guys, Obama and Holder, who are the front men for this authoritarian, totalitarian charade that makes a mockery of liberty and law in the service of democracy. Right?
To those who support the policy based on analogies to citizens on a foreign battle field, that’s pretty clear, but does not address what’s at stake here. If the CIA and cohorts have no problem targeting overseas before, what’s the necessity to take it further at the expense of a tortured truncation of the Constitution. Because critics have actually had the temerity to challenge the principle in court?
Let’s not be naive: Obama has doubled down on Bush era excess, while lulling the gullible with smoothly crafted words.
Brought to you by two black guys. How poignant.
Arthur, if your idea of a “more perfect union” involves the destruction of the U.S. constitution, then you may be right.
What would you call putting people in prison because of their political views? How about sponsoring terrorism by state authorities? How about banning some books? There is a whole litany of real violations of the Constitution that went on before this. We have progressed significantly from those bad old days. How about looking at that fact?
the
charlieali,
Is suggesting abandoning the constitution an act of insurrection and treason?
Let’s hope not.
I support what you wrote. It’s time to start over again as Jefferson suggested.
Every twenty years is too often, but it needs to be done now.
Bron,
I might point out that statute requires participation in the state sponsored armed forces of a country engaged in hostilities against the U.S., not just having connections to bad people acting under no state sanction. Unless that nexus of joining a state sponsored actor is met, they have definitely not done that.
10 Reasons The U.S. Is No Longer The Land Of The Free
by Jonathan Turley, January 15, 2012
http://jonathanturley.org/2012/01/15/10-reasons-the-u-s-is-no-longer-the-land-of-the-free/
“Dishonesty from politicians is nothing new for Americans. The real question is whether we are lying to ourselves when we call this country the land of the free.”
The US is FAR freer today, than when I was growing up during the McCarthy era and Humphrey was trying to pass laws making political memebership in the CPUSA a crime. It is freer than when the US put many members of the SWP and the CPUSA in prison for their political views. I no longer have to smuggle illegal books into the US. Books are no longer bought up and destroyed by the US government. I no longer have to dodge bullets fired into people homes by police sponsored terrorists in Houston. Ask some black activists if they are more free today than in the past. I think that you will find that while not perfect, and a lot of ways to go, we are still trying to form a more perfect union in a violent and dangerous world.
Arthur Erb:
“8 USC 1481 U.S. citizens are subject to loss of citizenship if they perform certain specified acts voluntarily and with the intention to relinquish U.S. citizenship.
3. entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S. or serving as a commissioned or non-commissioned officer in the armed forces of a foreign state (Sec. 349 (a) (3) INA);”
they have definitely done that. So I guess you are right. Whack the motherflockers.
“I think Congress should have the balls to codify the joining of terrorist organizations as a voluntary act of expatriation. Once they do, we will no longer have to deal with this “but he is a U.S. Citizen” bullshit.
Take up arms against me, you are my enemy. My right to preserve my life, and the life of other members of my society, grant me all the legal power I need to take you out before you do the same to me.”
anonymous posting found on another site
I might point out that the writing is very Lockean in nature.
If you read Greenwald’s latest piece, you’ll note that the Obama administration is, without question, trampling on Article III, section II and III, and also the 5th, 6th, and 14th amendments. America seems to be losing itself completely.
Arthur Randolph Erb
HOW would you know that these people are guilty of ANYTHING!?!?!
Oh, that’s right, you believe everything the government tells you….
Are you serious?
If they are guilty, arrest them extradite them, and PROVE in a court of law that they are guilty.
NOT a drone strike where other people besides the “target” are killed as collateral damage.
Bush supports torture, but then when pix of torture are found he sends OUR TROOPS to prison for HIS policies. But Obama refuses to do anything about it!?!? WHY does he think people voted him into office? To get this type crap stopped.
If these wanted Americans were in western Europe or some other country which had some control over all their territory, THEN it would be criminal to use deadly force to simply kill them. The FACT is that these people are waging war against the US, we have NO means to apprehend or subject them to the rule of law, and in such cases common sense dictates such a policy as Holder put forward. As for collateral damage, you sit down with active combatants, you can reasonably expect to get shot at as well. Give us a break!
“Rule of law?” Surely you jest… (Whatever “rule of law” remains, it’s merely window dressing…)
Why aren’t Americans demanding to know the details about the domestic program about which Ron Wyden has spoken. The silence is deafening.
The beginning of Greenwald’s article:
Attorney General Holder defends execution without charges
By Glenn Greenwald on Mar 6, 2012
http://www.salon.com/2012/03/06/attorney_general_holder_defends_execution_without_charges/singleton/
Excerpt:
In a speech at Northwestern University yesterday, Attorney General Eric Holder provided the most detailed explanation yet for why the Obama administration believes it has the authority to secretly target U.S. citizens for execution by the CIA without even charging them with a crime, notifying them of the accusations, or affording them an opportunity to respond, instead condemning them to death without a shred of transparency or judicial oversight. The administration continues to conceal the legal memorandum it obtained to justify these killings, and, as The New York Times‘ Charlie Savage noted, Holder’s “speech contained no footnotes or specific legal citations, and it fell far short of the level of detail contained in the Office of Legal Counsel memo.” But the crux of Holder’s argument as set forth in yesterday’s speech is this:
Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of Al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.
When Obama officials (like Bush officials before them) refer to someone “who is a senior operational leader of Al Qaeda or associated forces,” what they mean is this: someone the President has accused and then decreed in secret to be a Terrorist without ever proving it with evidence. The “process” used by the Obama administration to target Americans for execution-by-CIA is, as reported last October by Reuters, as follows:
American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions . . . There is no public record of the operations or decisions of the panel, which is a subset of the White House’s National Security Council . . . Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.
As Leon Panetta recently confirmed, the President makes the ultimate decision as to whether the American will be killed: “[The] President of the United States obviously reviews these cases, reviews the legal justification, and in the end says, go or no go.”
So that is the “process” which Eric Holder yesterday argued constitutes “due process” as required by the Fifth Amendment before the government can deprive of someone of their life: the President and his underlings are your accuser, your judge, your jury and your executioner all wrapped up in one, acting in total secrecy and without your even knowing that he’s accused you and sentenced you to death, and you have no opportunity even to know about, let alone confront and address, his accusations; is that not enough due process for you? At Esquire, Charles Pierce, writing about Holder’s speech, described this best: “a monumental pile of crap that should embarrass every Democrat who ever said an unkind word about John Yoo.”
TPM2012
Obama, Romney And Gingrich Agree: The Government Doesn’t Need A Court To Kill You
Ryan J. Reilly
March 6, 2012
http://2012.talkingpointsmemo.com/2012/03/obama-romney-and-gingrich-agree-the-us-can-kill-us-citizens.php?ref=fpnewsfeed
Excerpt:Something odd happened Monday. An Obama administration official delivered a major speech outlining the president’s position on a national topic that has been the subject of intense debate. Yet the Republican field was largely silent.
Why? Because when it comes to allowing a group of government officials to decide to target accused terrorists with lethal stikes — a death panel, if you will — President Barack Obama and Republican candidates are largely on the same page.
As Attorney General Eric Holder laid out in a speech in Chicago, the Obama administration believes that U.S. citizens can be targeted for killing under certain circumstances and that an executive branch review of the evidence against a subject of targeted killing counts as due process under the Constitution.
While most of the Republican candidates haven’t gone into great detail about the legal reasoning behind their views on executive power, two Republican presidential candidates still in the race — Mitt Romney and Newt Gingrich — are on the record in support of targeted killing. Ron Paul is a definite “no,” while Rick Santorum didn’t answer the New York Times survey. Santorum’s spokeswoman didn’t immediately respond to TPM’s request for comment.
A question for Arthur…
You wrote “If the people who were killed or who are targeted were simply handing out leaflets and their organization were devoted to only political activity, I would agree that they are exempt from such targeting. The FACT is that they are acting in concert with those who are waging war. They get what they deserve.”
Here’s my question…
How do you know what the FACTS are? How do you know anything more than what you have been told? Where is the evidence to support these FACTS? Does the pronouncement of the president or another member of the executive branch alone qualify the assertion as FACT?
OK…I admit it. Those questions are rhetorical. The answers (in order): You don’t know what the facts are. You don’t know anything more than what you have been told. You have seen no actual evidence that establishes these alleged FACTS. And no, the pronouncement of the king and the king’s servants does not qualify those pronouncements as FACTS.
You might recall that the Magna Carta subjected even kings to the rule of law. The days of “off with their heads!” was no more. You have no issues with the executive claiming the ultimate power of life and death, acting as prosecutor, judge, jury and executioner? Really?
The FACTS are that they were killed in Al Qeda controlled territory and in company with their combatants. THAT is totally uncontested by any party to this. In fact, letting the public know that such people are wanted by the US and subject to attack is a rather decent thing since it gives them fair warning and a chance to turn themselves in if they feel it is wrong.
Mar 6, 2012
Attorney General Holder defends execution without charges
By Glenn Greenwald
http://www.salon.com/2012/03/06/attorney_general_holder_defends_execution_without_charges/singleton/
Excerpt:
In sum, Holder’s attempt to make this all seem normal and common should insult anyone with the most basic understanding of American law. As The New York Times put it when first confirming the assassination program in April, 2010: ” The Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen. . . . It is extremely rare, if not unprecedented, for an American to be approved for targeted killing, officials said. A former senior legal official in the administration of George W. Bush said he did not know of any American who was approved for targeted killing under the former president.” To date, not a single such citizen has been identified.
As always, the most important point to note for this entire debate is how perverse and warped it is that we’re even having this “debate” at all. It should be self-negating — self-marginalizing — to assert that the President, acting with no checks or transparency, can order American citizens executed far from any battlefield and without any opportunity even to know about, let alone rebut, the accusations. That this policy is being implemented and defended by the very same political party that spent the last decade so vocally and opportunistically objecting to far less extreme powers makes it all the more repellent. That fact also makes it all the more dangerous, because — as one can see — the fact that it is a Democratic President doing it, and Democratic Party officials justifying it, means that it’s much easier to normalize: very few of the Party’s followers, especially in an election year, are willing to make much of a fuss about it at all.
And thus will presidential assassination powers be entrenched as bipartisan consensus for at least a generation; let no Democrat who is now supportive or even silent be heard to object when the next Republican President exercises this power in ways that they dislike.
(End of excerpt)
“Maybe in a perverse way just burnishing Obama’s tough guy cred?” (Dons)
That too
All it would take is a Democratic Kock Brothers or a Sheldon Adelson to change any such decision.
and this is how it ends, not with a bang, not with a whimper but with us all standing & reciting the pledge of allegiance in unison. Worst is what choice do we have? The alternatives being offered to Obama are so much worse as to be laughable (except it really isn’t funny is it?). We have to hold on to the hope that sanity can survive in some small cracks and that we not elect a told sociopath before we can correct the mistakes of the last 2 decades.
But even then the damage is already done. The first sociopath that takes power will simply ignore the changes and cite the old abuse as precedent to justify their actions.