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
Gene H.
You and people in public: Do some hang onto your ankle as you try to go on, dragging them after you?
Be careful. These nuts have guns too, doesn’t everybody there?
.
How nice with the Swedish way: The persuaders wear clear identifying marks, are easily wifted away, and least of all annoy. (A sour face is a no vote, they are taught)
And yet we are decidedly election enthusiasts—-87 percent voting.
Coudl it depend on that Sweden has no chance in the big world fights?
Karl Friedrich,
What form of abstention has ever made it better for the unions or the labor movement they represent? Did anybody notice or were éffected among your opponents?
Hope you see this. Start a movement trying to effect his platform. That seems to be your only chance. Make the Harvard Swine in Chief promise.
Thanks for the label.
This does show the problem with people blindly assuming that “THEIR” guy is a good guy and not thinking too much about what he’s actually doing.
The same people who are quiet about this would be screaming to high heaven if Bush or Yoo were doing this. It shows that the rot infects both parties. The only way to even begin to fix this is to go back to limited government and get rid of this stupid partisanship that is crusted over everything. Because this is a “bipartisan” problem.
Good point made above about the arrogance inherent in Holder’s argument “assume I’m right”..
Here’s what I posted about Holder’s speech on my Just askin’ – Just sayin’ blog on PatriotActionNetwork.com:
The Obama Administration has often made a big deal about being so smart and nuanced and subtle in their thinking and policy positions that we “common folk” just can’t fully understand and appreciate how right they really are about things.
Of course, that’s like saying, “Don’t argue with me, because I’m right,” therefore hopefully avoiding the absolutely boring d-r-u-d-g-e-r-y of having to prove that you are, in fact, right. Or Obama saying, as he recently did about Iran’s nuclear threat, “I don’t bluff.” Well, it’s been my limited experience in playing poker that when another player feels the need to SAY he doesn’t bluff, it’s because he IS bluffing. Or, to put it another way, a bully often yells loudest right before he backs down. Anyway, I digress.
Finally, Obama’s Attorney General Eric Holder has broken the administration’s silence on the legal justifications for its decision to kill US citizen and al Qaida terrorist Anwar al-Awlaki by drone strike five months ago in Yemen. Our poseur president’s affirmative action Attorney General Eric Holder’s latest attempt at this nuance of nonsense, subtlety of subversion and subservience, and distinction without a difference is to say that the Constitution’s Fifth Amendment guarantee of due process doesn’t necessarily mean “judicial due process.”
Huh?
Well, that sort of flies in the face of the Constitution itself (not that this administration has worried too much about that) and 235 years of American jurisprudence, which hold that the JUDICIARY is responsible for the enforcement of our constitutional due process rights, NOT the EXECUTIVE BRANCH.
So, if any, old due process will do in a pinch when the executive branch wants to kill somebody, and it can be therefore enforced, or IGNORED, by the executive branch, where does that leave us?
Eric “Americans are cowards about race” Holder would have us believe that he is making the “distinction” that this new and novel “executive due process” applies only to US citizens who are terrorists and are OVERSEAS. Okay, I’m a US citizen but I’m not a terrorist and I’m not overseas, so I and my Constitutional rights are safe, right?
But, wait, what if after getting by with THIS “nuanced interpretation,” the NEXT ONE applies to US citizens who are deemed by the executive branch to be DOMESTIC terrorists HERE AT HOME? Who’s watching out for my “due process under the law” then? Whoops! Seems like we skipped a couple of steps along the Constitutional separation of powers pathway, there, don’tcha think?
I could say something at this juncture about slippery slopes, etc., but I think an old saying by a German author about the German people’s failure to challenge the Nazis’ rise to power captures it best:
“First they came for the communists, and I didn’t speak out because I wasn’t a communist.
Then they came for the trade unionists, and I didn’t speak out because I wasn’t a trade unionist.
Then they came for the Jews, and I didn’t speak out because I wasn’t a Jew.
Then they came for me, and there was no one left to speak out for me.”
You may not be a communist, a trade unionist or even a good and faithful, law-abiding Jew, but if you’re a US citizen, you should be worried about Obama’s sly, self-serving and slippery slope power grabs.
I have a few questions that might have been answered already and I overlooked it:
How is it possible to simply redefine by fiat a core legal principle like “due process”?
How does Holder get away with simply saying that due process is whatever we say it is?
I feel like I’ve fallen through the rabbit hole, with absurdity heaped upon absurdity; can someone explain how such a power grab by executive branch, in violation of all legal principles in this country, can simply be declared as fact? It feels like some hellish quicksand is smothering all rationality and I am at a complete loss as to how to respond, or if there remains any point in responding.
I strongly supported Obama’s first run, but this is so fundamental a betrayal (on the heels of other fundamental betrayals) that it will be difficult to even vote for him this time around. I’m not sure I can do it.
Thank you, JT, for your voice of reason on this issue.
Gene H. Re: “my delivery” which may need some work, fine, that may be true, but also true is my message, that Obamaism (that is, Democratic Party politics) is a blind alley or worse for working people, moreover, that the hero & founder of this blog most certainly won’t himself be casting a vote for Obama come 2012 — so why should anybody else here defy his sensibilities in that regard? Of course that’s their right but who wants to sanely waste their time on a blog with which you cannot even come to terms with the moderators political conclusions without some degree of embarassment?
Karl Friedrich,
Got to you, didn’t I. 😉
Here’s the “left” summarized today. They’ll take a President who can kill anybody in the world “his” regime sees fit so long as they’re nominally for “Planned Parenthood.” Never mind throwing ACORN under the bus as well as 20 mi lion homeowners & taxpayers with bankster proscriptions & anti-people bankruptcy laws. He’s a real man that presides over not only the highest incarceration rate in human history but also the biggest military budget. Albeit history proves that foreign policy is derived from domestic policy — drones will solve all of our problems!
What an incredible contribution to humanities!
Gene,
I think there is a reality show in your trips to the store!
Blouise: I guess your hero Professor Turley by your definition has “no brains” then because he for goddamned sure won’t cast a vote for Obama after this article so please CC me your email to him entitled: “Brainless Twerp Professor of Contitutional Law” as I’ll be sure to blog post it everywhere. I’m waiting patiently for that CC.
Hee hee.
Gene,
I even posted as Limehouse today! I’m thinking of changing my avatar to his picture.
“Crushing to be sure but time to grow up & join the movement of the future rather than fight it.” (Karl Friedrich)
And that movement of the future entails not voting … oh yeah, like anyone with brains is going to follow that one. Nonsense
Blouise,
Your offer is tempting. 😀 lol
You’re starting to think like a Limehouse or a Crowder.
Swarthmore mom
Blouise, I never had a conversation with Karl before and he referred to prior conversations so it must be the person you think it is.
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Of course it is. How else is he/she going to make the argument appear popular?
KF,
I’m starting to suspect the movement of the future needs a better recruiter. Unless you’re a comic with the skill level of a Bill Hicks? You can’t win over an audience by coming out and saying, “Fuck you all! Goodnight!”
Seriously man. Work on your delivery.
Gene,
The crazies are everywhere because God is everywhere. I really do wish they would all ascend and leave us to run amuck in our own little hell here on earth. They keep setting dates yet none of them actually go up into the clouds.
I’m going to start the rumor that the next Ascension will take place in Arizona and Texas on Nov. 23, 2013 at 12:00, noon … sharp. All worldly goods can be forwarded to (the address of the warehouse I have rented). I plan to sell stock in the venture, if you are interested.
raff,
There just must be something about my face. I get the damnedest unsolicited conversations in public. Always have. From people just wanting to tell me their life story to just about anything else you can imagine.
KF,
False. I’m rather well known for criticizing the two party system and many of the regulars have agreed with those past criticisms. You paint with too broad a brush in an attempt to prove the superiority of your position on this issue. Again, there is no argument to win here. Both the decision to abstain and the decision to vote for the lesser evil are rationally and ethically defensible.
You’ve made your point. Now you start to belabor it. Let it stand. If people are going to be persuaded by your argument, they will, if they won’t, they won’t, but further demonizing others who have taken a contrary but equally valid stand is only going to drive people away who might otherwise be attracted to your points. Remember, this isn’t a case of arguing against prime facie irrationality or unethical behavior.
This is why I have not fought this battle.
There is no winning in prolonged conflict over the matter.
Gene,
I usually get those messages via email, but not at the store!
Blouise, I never had a conversation with Karl before and he referred to prior conversations so it must be the person you think it is.
SwM,
Karl/Karley just crossed a very important line but doesn’t have a clue … like a kid in the middle of a temper tantrum he/she just spouts off and then looks around for someone else to blame. Kind of like those teabaggers who threw money at the crippled guy and then whined “I don’t know what got into me.”