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
Karl Friedrich,
Why ever in the world would I care for whom JT does or does not cast his vote? I think you’ve confused this blog with one structured by an Authoritarian Parent.
True enough Raff, but let’s face it, about 1% of the regulars here disagree with the Professor’s legal & political prognoses. When it comes to something as fundamental as this, that is, the genius legal mind who you guest blog for regularly will prove to be fundamentally at odds over who you’re going to cast a vote for this November then that’s pretty embarrassing. Some might argue it’s shameful you don’t adopt his principled stance, which is zero quarter for abjectly authoritarian murderers of the US Constitution.
Karl,
Disagreeing with someone isn’t betraying them.
Enter God
The pathetic & sophmorish ad hominem retorts about Stalin and tea party absurdities only show how none of Turley’s die hards wish to confront the wretchedly painful topic at hand which is the fact that their intellectual hero will be distinctly at odds with them come 11/12. Crushing to be sure but time to grow up & join the movement of the future rather than fight it.
Gene’s points are well founded & he makes a cogent argument that’s beyond dispute. My point, however, is to expose how such loyal followers of the Professor can so easily betray the Host’s principles in the myopic thread-bare & tired arguments of “lesser-evilism.” Like an old friend who I just emailed this article to said: “If this guy is the Lesser Evil, I’d hate to come face-to-face with the Evil One himself.”
Karl,
I don’t agree with Professor Turley on all issues and that is not the purpose of this blog. It would not be the great blog that it is if everyone had to agree with Prof. Turley. I don’t expect everyone to agree with me Karl. We all get to express our views and make our arguments. That is the beauty of this place.
KF,
It is no secret either as to why or the fact that I’m not voting for Obama and in fact intend to abstain from the national election. I have made a principled argument of why I will not vote for Obama or any of the Hate Machine clowns currently running for office of the President. It is both rational and ethical. I stand by my decision. However, I have not tried to compel others to do as I am such as Mike S. or raff. Both of whom understand and respect my decision – I might be so brazen as to suggest they are even sympathetic for my reasoning – even though I am doing what is necessary to express myself and be true to myself. They are both men of good conscience and from previous conversation, I know they are both aware of the risks and of the failings of Obama. It cannot be said fairly that the conclusions they have reached are uninformed.
I think your “challenge” to raff is a bit presumptuous.
He is just as free to exercise his right to vote (or not) as you or I.
That raff may not agree with either of our choices (and perhaps JT’s – as he has said nothing I’ll not go further than perhaps) does not invalidate his contributions here. Make no mistake about it.
This is an instance where there is no argument to win. Their vote is their right. In the end, it’s a matter of conscience. They choose to opt for the lesser of two evils in this clearly Morton’s fork dilemma. I understand rationally why they came to this decision even if it is not the right decision for me personally. Just as reasonable men can disagree, people of conscience can disagree. Here the disagreement isn’t really over quality of candidates. I think it is fair to say all of us find Obama to be a perfectly revolting choice given his dismal track record on human and civil rights – exacerbating, continuing and excusing the very rights and Constitutional abuses of the previous criminal administration. The substantive difference is over methodology to minimize and mitigate damage.
The reason there is no argument to win here is that both stands – to abstain or to choose the lesser evil – can be viewed as the correct choice. There is no single right choice. This isn’t a situation where you are arguing against the prime facie irrational or the unethical. The arguments for either abstention or the lesser evil are sound arguments. That is the very nature of a Morton’s fork problem. All the choices suck. You just have to pick the one you personally can live with.
Blouise, most of the Paulbots are pretty transparent. He had one good idea; i.e., get our troops out of the combat zone. The rest of his ideas……well, the medicine cart should be coming around pretty soon.
“Remember, if you cast a vote for the murderer Obama you’re part of the problem — not the solution.” (Karl Friedrich)
“shame on you! If I’m right, and I know I will be as the silence will be deafening, then you should step down from your role here, think about the errors of your ways, and join the solution rather further contributing to the the problem insofaras anybody that casts a vote of confidence to Obama’s “killer policy” is somebody that will be politically trampled over in the coming years.” (Karl Friedrich)
“and you sorry saps that will be should find another blog to waste your time with. Think about it. In the highly unlikely event I’m wrong I’ll never post here again. If I’m rightt then you should promise to do the same. Gotcha! Res Ipsa Loquitor.” (Karl Friedrich)
Is it just me or does all this ranting sound familiar?
(BTW … Paul was trounced in Ohio yesterday.)
Ranting? Save those complaints for your Professor at large. No, it doesn’t sound “familiar” since the hero of your blog will be parting company with you Obama voters. You don’t really imagine a man of conscience would write an article like this and then enter a ballot box to cast a vote for such criminal turpitude do you? If you think Turley is voting for Obama this election then you people are truly delusional. It won’t happen because unlike you people he has inviolate principles and with all due respect to you regulars, shame on you all for not recognizing that and following him down the same righteous path.
Sure you did Blouise. Ozark wit & wisdom is my Achilles heel. Especially when it directly confronts the points in a principled debate!
It would be appropriate to explore a remedy of suing U.S. officials and the government in the court in Den Hague. A survivor of one of the dead guys would have standing. Or someone locked up in some drone prone country by the CIA or some drone prone country at the bidding of the U.S. Or a Gitmo detainee. If folks on the blog have information to share about the international court it would be relevant to this discussion. Our own Supreme Court needs to chimne in on the issue but I would like to see the international court take a case.
SMom: You go ahead and continue to register Dallas women to vote for one the biggest killers of innocent Brown women in our lifetimes. Meanwhile the hero of your blog, J. Turley, will be discouraging that course of action based on principles.
Sorry Raff, as much as I admire your contributions here I predict with utmost confidence that you will never ever get the Professor host of this blog to agree with you on this crucial score and therefore — shame on you! If I’m right, and I know I will be as the silence will be deafening, then you should step down from your role here, think about the errors of your ways, and join the solution rather further contributing to the the problem insofaras anybody that casts a vote of confidence to Obama’s “killer policy” is somebody that will be politically trampled over in the coming years.
Even though I’m broke due to the genius of American finance capitalism I’ll bet my last stack of hundred dollar bills to donuts that based on Turley’s article in discussion that he’d rather kill his kids like “Kaiser Soze” than to cast a vote for the biggest authoritarian murderer of the US Constitution in history. Mark my words. Just ask the Professor or dare him to come out publically as saying he’ll vote for Obama. He won’t. He’ll abstain. Just as would any heroic progressive with an iota of class conscience. I defy anybody here to prove me wrong, that is, get Professor Jonathan Turley to admit he’ll be voting for Obama. He won’t be, rest assured, and you sorry saps that will be should find another blog to waste your time with. Think about it. In the highly unlikely event I’m wrong I’ll never post here again. If I’m rightt then you should promise to do the same. Gotcha! Res Ipsa Loquitor.
Karl,
We will have to gree to disagree on this one.
rafflaw, your contributions here have been considerable, courageous, and I agree with 90% of your views but until people like you & SMom come to grips with the fact that votes for Democrats, the party that originated from Slave Owners and has prosecuted every “shooting” war in the 20th Century, is a serious political sin and a provable obstacle to our progressive future, until you come to grips with those facts then you’ll be willy nilly pushed to the outskirts of the future of humanity which consists of a movement entirely at odds with your worldview.
The fact is, when it comes to the grand bourgeoisie’s agenda Obama is the ultimate politician. He gets the Black vote plus carries out essentially Bush & Cheney’s 3rd term to a tee. To vote for him again is basically to carry out Bush & Cheney’s 4th term. To talk about the GOP’s assault on women while dismissing the arbitrary drone vaporization of Afghan women is something that history will view as absurdly “American Exceptionalism.”
You are right Swarthmore. As flawed as Obama is, he is still the best choice when compared to te GOP circus.
Karl Friedrich. Don’t want to be part of an abstention movement. It worked rather poorly in 2010 and women and minorities are feeling the affects of it. Abstain one more year and even more of the poor without picture ids will be disenfranchised. I don’t think encouraging low voter participation is the answer. I am trying to register more voters in low income areas of Dallas. It would be a shame to then tell them to stay home. Historically, it has never worked out very well. If you can talk others into it, feel free to do so.
SMom- just to clarify my Feminist credentials I should add that my 72 year old mother, who helped Gloria Steinem create MS. magazine and who was an editor of the “Feminist Voice” magazine in Chicago and who was also instrumental in the campaign to Repeal Illinois’ abortion law in 1972 and is a retired UAW organizer — wouldn’t touch Obama’s re-election campaign with a 12 inch male turd on a stick. We’re atheists but consider the closest thing to a working woman’s sin is a vote for Obama in 2012, the murdering bankster militarist whose betrayed the working people of Chicago consistently, starting with his very first vote in the Senate almost a decade ago siding with credit card companies in a vote to overthrow existing bankruptcy laws. The man is a lying coward and a cheat and clearly, from Turley’s article, a scourge to human progress, part of Harvard’s “Generation of Swine”.
SMom. That’s absurd. A vote of confidence to a congenitally degenerate murderer is not an option for working people. Abstention and let the dice fall where they may is the only principled choice for the class conscious. If ever there were a case for us progressives organizing a 3rd party with OWS activists as a starting point then this example cements the case.
Check out our only hope for a future at TheNorthStar http://www.thenorthstar.info/ and let’s build a real viable movement that challenges this pathetic status quo.
Remember, if you cast a vote for the murderer Obama you’re part of the problem — not the solution.
The DNC & the DP are historically bankrupt insofaras any progressive significance and the sooner this is affirmed by all then the sooner we can truly start reclaiming our Nation’s progressive significance.