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
Alla…. If any of that traffic was directed at me…. Thank you….i am honored you think I am Capable of posting and driving in construction traffic….. But, it was not me…… Yes it is true he’ll hath no fury……
come on you pussies – the originators said due but not necessarily legal process. We are at war with somebody, I’m sure there must be a war we have declared against someone, right? due process and judicial process are not the same same? So trial by fire or trial by combat are the same thing? Thank you Boy Blunder and all the gutless bastards in Congress who have done this to us. We are so fucked.
The NSA chap who runs the Dogalog machine for my dog pack here on the reservation is cutting me off access due to my comments on Herr Holder. I am running off. The Dogalog technology has been sent off to several others outside the government triangle. If I make it off the reservation to my next humanoid home I may be back on this dogblog. By the way, this dogalog machine doesnt translate into German or other languages from my simple woof, bark, slurp, howls or whimper. So excuse the Deutsch. Auschfart. (Exit).
SwM,
Hell hath no fury …..
Did you check out how Joe the Plumber did on his first day of campaigning? He just lost a large portion of one of his new cities. That guy is going to have to get up to speed quickly on Cleveland.
God is talking to you from his cell phone, Bloiuse. Look out!!!
There are many sleuths on here, but none as super as you.
id707,
I was being snarky with you but not in a mean way. I need to keep in mind that you are reacclimating yourself to your origins and apologize for the confusion.
Don’t worry about Super Sleuth, he talks to himself all the time.
I seem to agree…..
Dredd,
Thank you.
AY is not the only one laughing at you.
Gene H.
General search box?????? hmmm. oh there it is
you know it would be wise to take a general look at the forest before going in among the trees.
thanks.
I707, doesn’t need to….they have been here a long while…(AY)
Glad i can laugh at you now. so. just to humor me, tell me what me is hiding behind idealist707. then maybe could find them in the archive and compare posts. think i might find out what i’ve been doing the last 10 years.
I thought it was my heart op, my cat dying, my wifes two cancers, and now for two years fighting my own cancer. did i mention this under the other names?
you’re a laugh..
Now I must make an official humble dementi (as it’s called in swedish)—-uhhhhh. Refutal? denial? yeah.
1. (adj.) disingenuous
lacking in frankness, candor, or sincerity; insincere.
here I was trying to admit my foibles and weaknesses and get accused of lacking in frankness. here i am baring my warts, childish nature still active in an adult, etc.
And what do I get? Accused not being frank. Don’t know how could be more frank than I am. But in a way can understand the kind of frankness i exhibit is not seen this side of six years of age—-but you all haven’t understood I am in a process of building up a personality, after spending my life playing assumed roles. Are there better places, maybe but this is what I have access to for the moment. So bear with me. And when I say something, then if it seems disingenous, then call me down and I will overwhelm you with more true confessions. Blouise, I love her, said:
Blouise1, March 8, 2012 at 4:19 pm
id707,
Now you’re being disingenuous, you crafty ol’ devil, you. I like you anyway ’cause I dig crafty
Thanks Blouise, hope you like me as my naive self who tries to drop his know it all front and be the person am discovering more for each day.
Now if this embarasses somebody watching me, then do say so.
I can hear AY cackling in the background, but doesn’t matter. He’s crafty, or at least pretends to be.. Apparently appreciated here which is good cred.
Bye from the importance of being ernest. ernest hemingway? no the other one.
You are lonely. Seek ye salvation as you would for the least of my brethern.
Mike Spindell 1, March 8, 2012 at 11:13 am
On the day of 9/11, once the fatal words “now this changes everything” were uttered by some pundit and echoed ad infinitum, we have been on a downhill slope of terror …
This is madness …
==================================
Great comment Mike. I read the whole thing with rapt attention.
Gene, A year ago we did not know the election of 2012 would be about the GOP war on women although signs of it were starting to show up in the state legislatures. The fact that many republicans want evangelical christian or conservative catholic views to dominate public policy makes bi-partisanship hard to achieve.
thanks for the opportunities
.
“idealist, Most americans unfortunately don’t care much about this issue, and it could be their undoing as some have said”
Anybody taken a fresh look at your typical news site lately.
Have no backward references, but can see now that three fourths of the screen is covered by ads. Of the so-called news, most are feeds. The articles are by folks either selling themselves, their books, looking for contracts. promoting tenure, grants. their hidden sponsors. etc.
Even so-called news-heavy (my word lacking the right one) journals (NYTimes) are tending in that direction.
Ut oh…. Where did I go…..
Smom,
I think if both parties are faced with a concerted anti-incumbent effort across the board, they’d be more likely to field inter-party alternative challengers to incumbents. For it to work, any anti-incumbent tactic would by default have to be a- or bi-partisan and driven by the electorate. I said it’s a good solution. I never said it would be easy to implement.
SwM,
Okay … combed my hair and put on my shoes … have 2 minutes … did you see the news as to how Joe the Plumber did on CNN?
Honestly … this is going to be a hoot and holler
Could we get JT to establish a memorial saying page here.
Here’s one to be cast in bronze.
Gene H.
“….I hope everyone here realizes that the Senate will do their absolute obstructionist military-industrial complex fascist bought off corruption swilling best to ruin it?”