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
The only question remains is which dog is running at the time the others in the stable…..
There are 23 democrats up this year in the Senate. If they all lose to the anti-contraceptive crowd do you think it will get a lot better for women Gene? I am voting with Planned Parenthood and Emily’s list although in my area in Texas Obama will be the only viable one that gets their endorsement. You might be right about the senate in theory but in practical terms – no.
id707,
I rarely use the public indexing function for the blog, but on the categories? I’d suggest perhaps Congress, Constitutional Law, Justice, and the Supreme Court as a good place to start. Possibly Politics too, but that’s a lot of material. If you search for “Gene H.” in the general search box, it should pull up every thread I’ve ever commented on and every article I’ve written. If you change that to “Gene Howington”, it should just bring up the articles I’ve written.
Blouise,
Disingenous. what the f is that. will pull out my dictionary.
what i wrote aa a selfcommentary was a truth as I saw it.
Also realize that:
!) was feeling ignored, no hoorahs lately, particularly from the kind ladies.
2) felt we had fallen into a well of querulousness without someone lighting a candle in the gloom.
Will try not to misuse my questioning/challenging tactic now discovered.
While Gene’s reply involves great efforts etc., it is a defendable defineable goal around which we can assemble and gather support in many states.
Whether the battle is joined there is not pertinent. but support for it must begin there and not on K street—a place you once mentioned to me.
Gene,
I have an answer for that and quite a few examples but I really do have to get to a meeting. I used to be a big fan of term limits until I started dealing with some of the results on the State level. Locally, they work very well but the larger the area, the more numerous the pitfalls.
It really would be a good topic for a guest blogger.
later, gator.
I707, doesn’t need to….they have been here a long while….
id707,
Pick an archive month, then click on any topic that looks political in nature. Gene will be in it somewhere.
Blouise,
Term limits do present some problems, however, I think the long term benefit of forcing representatives to focus on the people’s business and bet interest rather than focusing on retaining and consolidating their personal power far outweighs the negatives. Plus it would tend to foster coalition building in the short term instead of creating situations where some chinless venal asshat like Mitch McConnell can bulldog the entire agenda of a session.
Gene,
Damn it … you are discussing term limits and I have to go! That’s a Limehouse move!
Which I were you referring to Gene? You crafty old devil…
Gene H.
seems there are categories and recent lists, but no personal search. any particular category you feel most pertinent to the american dilemma?
your reply now would really be a tremendous start. The center and drivers of corruption.
id707,
I don’t think you got “put in your place” so much as you got your valid question answered. Questions are never a bad thing. They move a conversation along.
I just all likely….. We are all new someplace, sometime….but some use words and information like it was just last year….. It’s like deja vu all over again….. Thanks yoggi b…..
id707,
Now you’re being disingenuous, you crafty ol’ devil, you. I like you anyway ’cause I dig crafty. 😉
Smom,
You mistake my use of “all” as hyperbolic.
I mean everyone in the Senate needs to go. In fact, they’ve proven such an obstructionist and obviously corrupted body over time, I would advocate single term limits for the body. They hold too much power for such a small and easily manipulated body to allow anyone to become entrenched. The dynamic nature of the House membership is the one saving grace that keeps the House from becoming as dysfunctional as the Senate. Don’t get me wrong. There is plenty about the House and the way they operate that pisses me off, but the Senate’s track record as a whole verges on being traitorous. They don’t give a tinker’s damn about democracy or our civil and human rights. They just want to make their campaign finance masters happy and retain their power at all costs. Screw ’em. They should all have a short time in that driver’s seat. And then when they are done? If they want to affect public policy, they should do what Russ is doing and speak out publicly to build pressure on the elected from the electorate.
Fear is the number one motivator or paralyses of people.
“Cut off their graft food chain at the source by disallowing corporate participation in the electoral and legislative processes. Shut the revolving door between Congress and the Lobbying Industry.” (Gene)
I’m in 100% agreement with those suggestions and cutting them off would take care of the first idea in that the buggers wouldn’t bother running again.
I do have a problem with term limits as we have them here in Ohio and the problems they present often out weigh the benefits.
I have to run to a meeting but would be more than happy to discuss the term limits issue at a later time. (Might even be a good topic for a guest blogger)
Got put in my place. Like most children have little patience.
Was always a problem as an adult.
Thanks all. Particularly the info on where to look.
Can understand Gene’s proper reticence to run the same by time after time..
Will shut up and look.
To think after less than two months here I have the hubris to call down the leading figures here. My, oh my, how tolerant you are of fools.
Peep!
Unfortunately, Gene is probably correct about the bill’s chances in the Senate. I hope I am wrong, but the foregn policy and military complex owned Senators will balk at this.
That’s what they said on here in 2010. Vote out the incumbents. They were replaced by right wing tea party members. We lost Russ Feingold and now we have sonograms with probes. Oh well it is International Woman’s Day so we need to be told to vote out Barbara Boxer.