This week we have been discussing Attorney General Eric Holder’s recent speech at Northwestern University Law School detailing the claim of President Barack Obama that he has the right to kill American citizens based on his inherent authority and the ongoing war on terror. I previously wrote a blog and a column on the issue. Those pieces noted that Holder limited his remarks by referring to targeted killing “abroad.” However, I noted that the Administration’s past references to this power are not so limited. Indeed, the only limits stated by the Administration have been self-imposed standards and what Holder calls “due process” — expressly excluding “judicial process.” Now, FBI Director Robert Mueller has entered the fray. On Wednesday Mueller was asked in a congressional hearing whether the current policy would allow the killing of citizens in the United States. Mueller said that he simply did not know whether he could order such an assassination. It was the perfect moment to capture the dangerous ambiguity introduced into our system by this claim of inherent authority. I can understand Mueller deferring to the Attorney General on the meaning of his remarks, but the question was whether Mueller understands that the same power exists within the United States. One would hope that the FBI Director would have a handle on a few details guiding his responsibilities, including whether he can kill citizens without a charge or court order.
Mueller was asked whether the same criteria used to kill Americans abroad also would apply in the United States and whether the President retained the “historical” right to order such assassination on U.S. land. When asked this basic question by Rep. Kevin Yoder (R-Kan.), Mueller said that he was simply unsure where the President’s authority would end, if at all, in killing citizens: “I have to go back. Uh, I’m not certain whether that was addressed or not” and added I’m going to defer that to others in the Department of Justice.” He appeared unclear whether he had the power under the Obama Kill Doctrine or, in the very least, was unwilling to discuss that power. For civil libertarians, the answer should be easy: “Of course, I do not have that power under the Constitution.”
After my column ran in Foreign Policy magazine, a reporter at a leading newspaper who I respect emailed me to question whether it is accurate to say that this policy is unlimited and whether officials have truly asserted the right to kill citizens at anytime and anywhere, particularly in the United States. He noted that the Administration insists that it is doing its own “constitutional analysis” for every killing — simply without the involvement of the courts. As I have noted before, this assertion is based on the threshold 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 claim 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. Holder was not describing a constitutional process of review. They have dressed up a self-imposed review of a unilateral power as due process. Any authoritarian measure can be dressed up as carefully executed according to balancing tests, but that does not constitute any real constitutional analysis. It is at best a loose analogy to constitutional analysis.
When reporters asked the Justice Department about Mueller’s apparent uncertainty, they responded that the answer is “pretty straightforward.” They then offered an evasive response. They simply said (as we all know) that “[t]he legal framework (Holder) laid out applies to U.S. citizens outside of U.S.” We got that from the use of the word “abroad.” However, the question is how this inherent authority is limited as it has been articulated by Holder and others. What is the limiting principle? If the President cannot order the killing of a citizen in the United States, Holder can simply say so (and inform the FBI Director who would likely be involved in such a killing). In doing so, he can then explain the source of that limitation and why it does not apply with citizens in places like London. What we have is a purely internal review that balances the practicality of arrest and the urgency of the matter in the view of the President. Since the panel is the extension of his authority, he can presumably disregard their recommendations or order a killing without their approval. Since the Administration has emphasized that the “battlefield” in this “war on terror” is not limited to a particular country, the assumption is that the President’s authority is commensurate with that threat or limitless theater of operation. Indeed, the Justice Department has repeatedly stated that the war is being fought in the United States as well as other nations.
Thus, Mueller’s uncertainty is understandable . . . and dangerous. The Framers created a system of objective due process in a system of checks and balances. Obama has introduced an undefined and self-imposed system of review that borders on Supreme Court Justice Potter Stewart’s test for pornography in his concurring opinion in Jacobellis v. Ohio, 378 U.S. 184 (1964): “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” Presumably, when Holder sees it, he will let Mueller know.
Source: Fox
Can we tell the Secretary of Defense and the FBI Director about the provisions for Treason in our consititution.
Mike,
Great video clip of The Man from UNCLE. Leonard Cohen is the best.
ID,
I am not aware of any exception for us to torture in the Geneva agreements. If there was an exception, the Zbush interrogation methods would have been legal without the Torture memos.
None Dare Call It Treason! But that is what it is folks and treason is defined and protections against false treason allegations are provided for in the original body of the Constitution. So we dont have to have those original intentors out there chimne in on what the Framers intended when it was spelled out by them so clearly. Forget the Due Process Clause or Sinter Klaus on this topic.
Here is Article III of the Constitution:
Article. III. [ Annotations ]
Section 1.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Section 2.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Section 3.
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
DonS 1, March 9, 2012 at 6:24 pm
I’d like to believe that Obama was just overwhelmed by the actual situation when he got into office and saw new stuff, not that he played us for suckers.
But I don’t.
————
Nor do I, DonS. We’ve been “played.” Big time. No matter what he says.
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For the rulers of the world, this is a conundrum, because their unaccountable power rests on the false reality that no popular resistance works. And it does.” -Jill
Thanks for the Pilger “insight”, as well as your own, Jill. One of these days, there will be another Pentagon Papers type of leak and the dominoes will start to fall, just as they did back then, albeit slowly. If the covert program of which I’m aware were to be known to many, I’d like to think that it would be a game-changer for this country. Time will tell. We’ll see…
Oh my, it appears some are MIA.
Jill,
Good stuff….
AN, Thanks for the reminder. Yeah, promises of politicians are pretty useless but, “transparency and the rule of law” are not only basic but, when uttered, were against the implicit and explicit background of the horrible Bush years. I’d like to believe that Obama was just overwhelmed by the actual situation when he got into office and saw new stuff, not that he played us for suckers.
But I don’t.
This is an important insight from John Pilger: “Two classified documents recently released by Wikileaks express the CIA’s concern that the populations of European countries, which oppose their governments’ war policies, are not succumbing to the usual propaganda spun through the media. For the rulers of the world, this is a conundrum, because their unaccountable power rests on the false reality that no popular resistance works. And it does.”
All,
This Wikipedia article may provide some light on my question, and more…..
http://en.wikipedia.org/wiki/Torture_and_the_United_States#The_UN_Convention See particularly under paragraph heading “Ratification”.
Note that there are several other articles pertaining to Bybee, Yoo, etc. and ev. law pertaining to this area.
NOte also that Google offers many other official sources: US DoS, UN, international, etc.
Mike S.
Apologies for using you as an encyclopedic source.
Mike S.
Have to bring it up again.
Although I have no link, i still claim that I have read that the USA reserved the CIA’s prerogative to use torture in a Geneva convention. Now you use the words. “interrogatin method”. Perhaps that was how the reservation was formulated, which was subsequently ratified. (All I got in response was that we had only signed 4 (?) Geneva conventions and that gave me no help in finding confirmation.)
At any rate my postulate forms a possible legal basis for their claim.
“The CIA’s characterization of torture as an “intelligence method” is shameful, and at bottom it is simply another effort to prevent the public from learning the full scope of the torture program.”
AN,
Per your comment, this to me is an accurate portrayal of the CIA and other intelligence agencies, with cogent commentary. Forgive my duplication.
Off topic but yet still hot,
Want to be made happy?
-“-At least 50 companies, including Netflix, Capitol One, and AOL pulled their advertising from Limbaugh’s radio show, leaving only 2 paid ads during his entire 3 hour broadcast yesterday. He even filled time during the commercial break with dead air!”
Here’s the list:
http://thinkprogress.org/media/2012/03/02/436852/rush-limbaugh-advertisers/
Is he dead, like a cockroach I wish, feet in the air.
One should vote for one that they feel comfortable voting for. The choices are yours to make. Me, I’m in a conundrum, I want someone to do what they say and say what they do.
AN,
Since when have they ever been required to keep their promises…… Maybe the guy being prosecuted for lying during a campaign should be convicted….. Then we’d have some degree of accountability…. Only funna ya….on that one as political speech should be protected….
swarthmore mom:
I dont like him, I think he is a liberal dressed in bankers clothing.
You all should want him on the ticket, either way the election goes, the left gets their man in office.
Jill:
the problem is government outside the bounds set by the Constitution.
There is nothing in the Constitution for a good deal of what has been done by our government. Killing citizens is way beyond but what gave the government the idea they could get away with killing?
You erode the Constitution one little drip at a time and pretty soon you are at the mercy of tyrants.