Mueller: I Can’t Say Whether I Now Can Kill Citizens In The United States Under Obama’s Kill Doctrine

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

264 thoughts on “Mueller: I Can’t Say Whether I Now Can Kill Citizens In The United States Under Obama’s Kill Doctrine”

  1. The Day ‘Due Process’ Died: Obama, Holder and the End of Rights

    by Peter Van Buren, 03/07/12


    “Sluts All”

    “So while the popular media remembers yesterday as the day Rush apologized for calling someone a slut and Republican candidates ignored the wave of history to carp about birth control, historians will look back on March 5, 2012 as the day America gave up on its experiment with unalienable rights, rights that are natural, not given, rights independent of governments, what our Declaration explained to an unsure forming nation as “Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

    And that is the saddest part of a very sad day: the majority of Americans — the consent of the governed — seemingly do not care what Holder said, and are even now bleating on internet forums and likely in comments below to this article about the need to kill more terrorists, adding terrified, empty justifications to Holder’s clever Newspeak. We did not have our freedom taken from us, we gave it away.” (excerpt)

  2. “I don’t think suing over olive pits helped Kucinich’s image much either.” -Swarthmore mom

    I’m sure it didn’t. (Thanks for the link. I’d like to see his dental records. )

    I used to like him a lot but not so much anymore. Guess a lot of democrats in Ohio felt the same way. -Swarthmore mom

    Maybe the Ohio Dems were correct, maybe they weren’t…


    Dennis Kucinich and “wackiness”
    By Glenn Greenwald, March 10, 2012


    Revealingly, two days after the Prospect article crowned Kucinich “among the wackiest members of Congress,” TPM featured this article, the day after Eric Holder advocated the view that the President has the power to target American citizens for execution without charges:

    So let’s recap the state of mental health in establishment Democratic circles: the President who claims (and exercises) the power to target American citizens for execution-by-CIA in total secrecy and with no charges — as well as those who dutifully follow him — are sane, sober and Serious, meriting great respect. By contrast, one of the very few members of Congress who stands up and vehemently objects to this most radical power — “The idea that the United States has the ability to summarily execute a US citizen ought to send chills racing up and down the spines of every person of conscience” — is a total wackjob, meriting patronizing mockery.

    Both the Prospect and Post recite the trite case demonstrating Kucinich’s supposed weirdness. He’s friends with Shirley McLaine, who believes in reincarnation, and he once (according to McLaine) claimed to have an encounter with a UFO. Is any of that really any more strange than the litany of beliefs which the world’s major religions require? Is Barack Obama “wacky” because he claims to believe that Jesus turned water into wine, rose from the dead and will soon welcome him to heaven? Is Chuck Schumer bizarre because he seems to believe that there’s some big fatherly figure sitting in the sky who spewed fire and brimstone at those who broke the laws he sent down on some stones and now hovers over him judging his every move? Is Harry Reid a weirdo because he apparently venerates as divine the “visions” of a man who had dozens of wives, including some already married to other men?

    Neither the Prospect nor the Post would ever dare mock as “wacky” the belief in invisible judgmental father-figures in the sky or that rendition of life-after-death gospel because those belief systems have been deemed acceptable by establishment circles. ”Wacky”, like its close cousin “crazy,” is a term of establishment derision exclusively reserved for those who deviate from such conventions. And that’s the point worth making here: the real reason anyone with D.C. Seriousness, including many establishment liberals, relished mocking Kucinich is because he dissented from the orthodoxies of the two political parties. That, by definition, makes one wacky and weird, even when — as is true for the Obama assassination powers and so many other bipartisan pieties — the actual wacky and crazy beliefs are those orthodoxies themselves (we’ve seen this repeatedly with those who stray from two-party normalcy). In reality, the actual crazies are those who fit comfortably within that two-party mentality and rarely challenge or deviate from it, while those who are sane, by definition, dissent from it (just today, the Super Serious Democratic Sen. Carl Levin, a prime co-sponsor of the indefinite detention bill passed late last year, called for a naval blockade of Iran). (end of excerpt)

    And the beat goes on…

  4. SwM
    How can she become an honest politician is my question? She obviously has the potential. (Referring to the common belief that they are corrupted all.
    Saw a young Obama speaking to an outdoor gathering at Harvard, introducing a controversial professor. He started developing young, but what you become is the harder part. So many choices, many say “Not yet.” She’s made some already.
    Am glad she is getting a hands-on feeling through the Guantanamo defendatn lawyer. Are summer jobs possible with attorneys like that? How exciting!!!!
    PS The controversial professor was used to illustrate the point of “Guilt by association” being ridiculous or perverse.

  5. idealist, She did make the cover of her high school’s newspaper when she started a chapter of the Young Democrat’s there. lol

  6. Our law on torture is this: “no exceptional circumstances whatsoever”. Why is this important? Because the law stays the law and our values stay our values in a time of emergency. To do otherwise is to be: 1. a summer patriot and 2. to dismantle the rule of law, the real protector of the people.

  7. Thanks, Idealist. One of the panelists was a lawyer for those at Guantanimo.

  8. SwM
    Am sure you are very proud of her. Being coordinator is a strong recognition, I feel. And her choice of spending her elective on this, a what at this point would seem to be a non-white shoe elective, ie less remunerative, says a lot about her (and you too).

  9. The first reservation removes “degrading” given in the wording in the UN document out of USA use. I e, degrading is not “torture” as the USA sees it.
    This make the the techniques documented inadvertently in photos taken at Abu Graub out of discussion For ex. forced simulation of homosexual acts, being treated like a dog on a leash, forced to be in degrading situations (naked before non-familial women) or positions, etc, etc.

    I am sure that the repetoire is culturally adapted and more extensive than I am aware of..

    And permit a satirical comment: The removal of degradation is of course consequential to the American way of life and law. (Satiracal but serious)

    The laws and their application seems in many cases to be aimed at DEGRADING humans so as to diminish self-esteem and to minimise resistance to such treatment. Witness TSA procedures, or being brought to trial in an orange prisoner costume. The list is much longer and we being accustomed, become blind to its use.

  10. idealist, Law students mainly study this in elective courses. My daughter is taking National Security Law from on of the principals at the Lawfare blog. She also coordinated a panel discussion last week at her law school last week on the NDAA. We are having some interesting discussions and I am learning a lot from her.

  11. You’re answering while I’m writing my latest long quote with a couple of questions. I’ll go on looking, starting with Wikipedia. Curious that the USA ratification document was not available at thé UN site?
    You write:
    I do not think so because the US has prosecuted for the very act of waterboarding that the Bush administration utilized.”

    Who what, when and where???? Who prosecuted whom? By Bush or Obama? Under what law? When? And Where?

    If it’s too much trouble I’ll google it.

  12. Rafflaw,
    Didn’t recognize my own name (ID) in your reply. Tired today.
    Will take a look myself. Did you check tha article, or was that a general reply? This is the article’s parsing of the actual USA document.
    Unfortunately, the actual document linked from ref 73 is a bum link. But perhaps can be found through USA sources, DoS.

    Parsed as:
    The U.S. ratification itself, on 21 October 1994, came some six years after the spring 1988 signature and was subject to numerous (A) reservations, (B) understandings and (C) declarations. These can be read verbatim at the UN treaty website[73] and are parsed here as follows:

    A. Reservations: The U.S. made two reservations in connection with its ratification.
    (1) The U.S. would only be bound to prevent the “cruel, inhuman or degrading treatment or punishment” that are addressed by article 16 of the Convention[72][nb 3] to the extent the term “cruel, inhuman or degrading treatment or punishment” was synonymous with the “cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States”.[5]

    (2) Pursuant to treaty option, the U.S. is not bound to resolve questions by international arbitration, but it “reserves the right specifically to agree to follow this or any other procedure for arbitration in a particular case.”[75] B.

    Understandings: The U.S. announced certain interpretive understandings, “which shall apply to the obligations of the United States under this Convention:”
    (1) Regarding the definition of certain terms in the Convention, (a) “Torture”[nb 4] must be specifically intended to inflict severe physical or mental pain. Furthermore, “mental pain” refers to prolonged mental harm resulting from either (1) the intentional infliction of severe physical pain; (2) the administration of mind altering drugs; (3) the use of other procedures that are also “calculated to disrupt profoundly the senses or the personality;” C; or (5) the threat that another person (e.g. a spouse or relative) will imminently be subjected to the foregoing.
    (b) “Torture” must be an action against a victim in the torturer’s custody. (c) “Sanction”[nb 5] includes judicially-imposed sanctions and other enforcement actions authorized by United States law or by judicial interpretation of such law.
    (d) “Acquiescence”[nb 6] requires that the public official, prior to the activity constituting torture, be aware that such activity is imminent, thereafter violating his duty to prevent such activity.
    (e) A noncompliance with applicable legal procedural standards[nb 7] does not per se constitute torture.”
    SOURCE Wikipedia

    My concern is with this:
    “”Torture”[nb 4] must be specifically intended to inflict severe physical or mental pain.”
    In wording it as “specifically intended”, does that raise a higher or more exclusive intent than ordinary intent? Ie, wording it as they are doing in the ACLU case as an interrogation method would imply that it was not “specifically intended” for the purposes of torture, and thus fall outside the framework as we defined it in ratification understandings, etc.

    Guess will have to go read the memos myself and see what’s there.

    Do law students routinely have this as part of their studies, or is it some later choice?

  13. ID,
    I do not think so because the US has prosecuted for the very act of waterboarding that the Bush administration utilized.

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