Columns, Congress, Constitutional Law, Courts, Criminal law, International, Military, Politics

Obama’s Kill Policy

Below is today’s column in Foreign Policy magazine on Attorney General Eric Holder’s speech at Northwestern University Law School. UPDATE: FBI Director declines to answer whether the new doctrine allows the killing of citizens in the United States.

On Monday, March 5, Northwestern University School of Law was the location of an extraordinary scene for a free nation. U.S. Attorney General Eric Holder presented President Barack Obama’s claim that he has the authority to kill any U.S. citizen he considers a threat. It served as a retroactive justification for the slaying of American-born cleric Anwar al-Awlaki last September by a drone strike in northeastern Yemen, as well as the targeted killings of at least two other Americans during Obama’s term.

What’s even more extraordinary is that this claim, which would be viewed by the Framers of the U.S. Constitution as the very definition of authoritarian power, was met not with outcry but muted applause. Where due process once resided, Holder offered only an assurance that the president would kill citizens with care. While that certainly relieved any concern that Obama would hunt citizens for sport, Holder offered no assurances on how this power would be used in the future beyond the now all-too-familiar “trust us” approach to civil liberties of this administration.

In his speech, Holder was clear and unambiguous on only one point: “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 because senior administration officials have previously suggested that the president may kill an American anywhere and anytime, including within the United States. Holder’s speech does not materially limit that claimed authority, but stressed that “our legal authority is not limited to the battlefields in Afghanistan.” He might as well have stopped at “limited” because the administration has refused to accept any practical limitations on this claimed inherent power.

Holder became highly cryptic in his assurance that caution would be used in exercising this power — suggesting some limitation that is both indefinable and unreviewable. He promised that the administration would kill Americans 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.” He did not explain how the nation in question would consent or how a determination would be made that it is “unable or unwilling to deal” with the threat.

Of course, the citizens of the United States once consented on a relevant principle when they ratified the Constitution and later the Bill of Rights. They consented to a government of limited powers where citizens are entitled to the full protections of due process against allegations by their government. That is clearly not the type of consent that Holder wants to revisit or discuss. Indeed, he insisted that “a careful and thorough executive branch review of the facts in a case amounts to ‘due process.'”

Holder’s new definition of “due process” was perfectly Orwellian. While the Framers wanted an objective basis for due process, Holder was offering little more than “we will give the process that we consider due to a target.” And even the vaguely described “due process” claimed by Holder was not stated as required, but rather granted, by the president. Three citizens have been given their due during the Obama administration and vaporized by presidential order. Frankly, few of us mourn their passing. However, due process appears to have been vaporized in the same moment — something many U.S. citizens may come to miss.

What Holder is describing is a model of an imperial presidency that would have made Richard Nixon blush. If the president can kill a citizen, there are a host of other powers that fall short of killing that the president might claim, including indefinite detention of citizens — another recent controversy. Thus, by asserting the right to kill citizens without charge or judicial review, Holder has effectively made all of the Constitution’s individual protections of accused persons matters of presidential discretion. These rights will be faithfully observed up to the point that the president concludes that they interfere with his view of how best to protect the country — or his willingness to wait for “justice” to be done. And if Awlaki’s fate is any indication, there will be no opportunity for much objection.

Already, the administration has successfully blocked efforts of citizens to gain review of such national security powers or orders. Not only is the list of citizens targeted with death kept secret, but the administration has insisted that courts do not play a role in the creation of or basis for such a list. Even when Awlaki’s family tried to challenge Obama’s kill order, the federal court declared that the cleric would have to file for himself — a difficult task when you are on a presidential hit list. Moreover, any attorney working with Awlaki would have risked being charged with aiding a terrorist.

When the applause died down after Holder’s speech, we were left with a bizarre notion of government. We have this elaborate system of courts and rights governing the prosecution and punishment of citizens. However, that entire system can be circumvented at the whim or will of the president. The president then becomes effectively the lawgiver or lifetaker for all citizens. The rest becomes a mere pretense of the rule of law.

Holder was describing the very model of government the Framers denounced in crafting both the Constitution and Bill of Rights. James Madison in particular warned that citizens should not rely on the good graces and good intentions of their leaders. He noted, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” The administration appears to have taken the quote literally as an invitation for unlimited authority for angels.

Of course, even those who hold an angelic view of Obama today may come to find the next president less divine. In the end, those guardian angels will continue to claim to be acting in the best interests of every citizen — with the exception, of course, of those citizens killed by them.

Jonathan Turley

Foreign Policy Magazine, March 6, 2012

140 thoughts on “Obama’s Kill Policy”

  1. As bad as this is I still have to vote for Obama to stop the GOP war on women. If the republicans take it all, we all be in for probing sonograms and the funding for Planned Parenthood will be gone. The whole country except California and a few states in the northeast will end up like Texas which has the lowest level of uninsured people in the nation. The state funds for planned parenthood have been cut off so poor women literally have no where to go in small towns and rural areas. I don’t think those that don’t live in red states could possibly understand how bad it will get if the republicans control everything. Obama will be endorsed by Planned Parenthood and all the progressive women’s organizations.

  2. When the Democraps are as nazi as the RepubliCons then I have no place to go. Ron Paul perhaps. Sorry Barak, I will not be driving poor or crippled voters to the polls. Instead I will be trekking to the hills to work on my retreat for the time the revolution comes.

  6. Further on the results of booing Holder and starting a revolution:

    Do you think that we, as we buried our near ones, would be consoled by the news that the world was celebrating the new “American Spring”?

  8. Sorry, rafflaw. (On a lighter note, it’s 60 degrees outside! Heading out to soak up some sun.)

  9. anon nurse,
    I was feeling bad enough about this program and you had to make it worse by dredging up Dick Cheney! 🙂

  11. After all, we are all “mukely applaudng” even by our silence, or unheard boos.
    Think if ALL, including alumni etc had booed. What a message that would have been to Obama and his controllers. And a signal from the church tower, the revolution might have started. The media would have feasted for at least a week.

  12. Dick Cheney comes to mind…

    http://jonathanturley.org/2009/07/12/report-cheney-ordered-concealment-of-secret-program-from-congress/

    Report: Cheney Ordered Concealment of Secret Program From Congress
    Published 1, July 12, 2009

    It goes without saying that, where there is a story of constitutional or human rights abuse, Dick Cheney cannot be far behind. It is therefore little surprise to learn this week that, according to sources in the recent disclosure of a hidden counterterrorism program, the prior concealment from Congress was allegedly ordered by Cheney.

    The Central Intelligence Agency reportedly withheld information about program for eight years on orders from Cheney, who continually fought any disclosures on a host of subjects to either Congress or the courts.

    As I discussed on this segment of MSNBC Countdown, it is a crime to withhold such information from Congress — yet another crime that is not being investigated by the Obama Administration.

    While covert operations can be limited to disclosures to the Gang of Eight, the National Security Act of 1947 requires such disclosure.

    It was previously known that Cheney’s legal adviser, David S. Addington, (another dark character in these scandals) was involved in this matter as well.

    From the above story:

    http://www.geopoliticalmonitor.com/no-geographical-limitations-on-cia-assassination-program-2398/ ( The Raw Story link supplied by Lottakatz is a dead one… as is the one about Dr. David Kelly.)

  13. E. Slovik, thank, and asking for a link. Thirst not quenched.

    And some understnding of the students is expressed here in the email I’ve sent to those not here. Do it your way, but do spread the word—-even at the risk of an unpopular label.

    Announcing the Imperial Presidency and a rebuke to the applauders

    Sam Adams was one of the Founders of our country, and a President.
    Holder is the Sec’y of the Dept of Justice, and recent presenter of a policy speech where he declared that achievement of “due process”, as required by the Constitution for justice to be done, can now be done by the executive branch alone, in secret, with no oversight, review or appeal, nor with providing the accused the right to be advised of what he is accused of, the right to confront his accusers, the right of attorney—–nor all the other things we associate with our system of justice through the courts.

    After he ended, his listeners, law school undergraduates, were of course overjoyed at having Moses come down the mountain reciting the tablets which re-interprets our Constitution. And pointing the way to the promised land of an imperial Presidency which would alone decide our fate—–here or abroad.
    They responded with “muted applause”, being aware that there were cameras recording them just as in the old Soviet state or today’s China’s yearly meetings.
    Perhaps some were even hoping for employment with the DoJ.

    Here is Sam Adam’s reply from some 230 years ago.

    To those who offered “muted applause” to Holder: (Slovik)

    “If ye love wealth better than liberty,
    the tranquility of servitude
    better than the animating contest of freedom,
    go home from us in peace.
    We ask not your counsels or your arms.
    Crouch down and lick the hands which feed you.
    May your chains set lightly upon you,
    and may posterity forget that you were our countrymen.” — Sam Adams

    An awfully long preamble so do do it better.

  15. “Three citizens have been given their due during the Obama administration and vaporized by presidential order. Frankly, few of us mourn their passing.”

    One of the three was a 16 year old teenager!? I find it disgusting that our government is “vaporizing” children and I for one do mourn his passing in such an unjust manner.

Comments are closed.