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
One can only understand what one has the ability to understand.
Just an additional incredulous thought — from among the seemingly endless series of them that Attorney General Holder’s bullshit speech evoked in me — I know that I clearly heard former President George W. Bush proclaim that “we” — meaning presumably a few military servicemen and women — had to “fight them (the Evil Ones) over there so that we wouldn’t have to fight them here” (meaning, presumably, America). If, as we now learn from Attorney General Holder, the entire world, including the territorial United States, is a “battlefield,” then “fighting them over there did nothing at all to forestall us having to “fight them here.” Therefore, I must inquire of the bungling incompetents who infest our political and military “leadership” why in the hell we had to squander ten years, tens of thousands of casualties (only counting ours) and a trillion dollars only to have the Evil Ones keep appear among us anyway, undeterred from whatever the hell we did “over there,” trying occasionally to set their underwear or shoes or cars on fire (if you can believe the FBI) while hardly an American person going about their daily lives notices anything even slightly out of the ordinary?
From The Best and the Brightest who brought us debacle in Southeast Asia to The Worst and the Dullest who brought us two debacles in the Middle East — all in a single generation. Between “dumber than dirt” or “too stupid to stipulate,” I just can’t decide which epithet best describes the charlatans and fools we keep “choosing” to mislead and abuse us.
…..although I do take his ´name in vain at times. Djävlar!
Blouise,
Have a wondrous weekend. Was napping when you left.
As for God, he knows I don’t believe in him, although I do in vain at times.
id707,
If the sock puppet God Knows You tries to give you grief … ignore him. I have it on good authority that God doesn’t use sock puppets. 😉
id707,
I wouldn’t but only because I would feel funny using someone else’s words preferring to communicate with my own words. (His people probably already read this blog everyday due to the high profile of the blog’s owner, JT.)
Tex and I are leaving in a few minutes for a 3 day weekend (6 hour drive to get there) without any computers. I don’t have one of those fancy cell phones that I can post from … I’ll be back Monday. Have a good weekend.
Is it a violation of some sort to copy relevant parts of posts, sans signature, and include them in messages to the President?
They are coming to get me for speaking up for al awaki. I am running.
TO ALL
I came here because I had been looking for years to find a place where people were concerned by our situation, . Also where subtle or complicated concepts would be easily handled, and ad hominem attacks at a minimum. I found this place and said voilá.
As for building a personality, that’s literally what it is. One has to learn to trust, to dare open up, to interact on the same level as they are, not as crossed transactions.. Then you discover a little of who you are..
.
Someone and I had a discussion recently here which I feel was friendship building. A major step for me. It is a completely uncharted area for me.
Nuf’ said for now. Thanks for the acceptance. So far it needs repeating.
Don’t want to be an energy consumer but to contribute my passion for justice here.
Thank for the info on the spooks and Cryptic Creeks, etc who flit around.
As Alexander Hamilton asked in Federalist No. 26: “What then, it may be asked, is the use of a provision, if it cease to operate the moment there is an inclination to disregard it?”
President Obama and Attorney General Holder obviously feel inclined to disregard the Constitution whenever it restricts their arbitrary exercise of power — the very reason that we have a Constitution in the first place. For his part, FBI Director Mueller simply doesn’t know if he feels inclined to disregard the Constitution or not — at this time — but reserves the right to determine that he may do so in the future. So what use, indeed, does the Constitution now serve if the highest officials in the nation’s government arrogantly dismiss its “suggestions” at their own convenience? For I have heard no argument from them justifying their lawless conduct other than that they find carrying out their sworn duties in accordance with our laws too tedious and too annoying, what with with some of the citizenry demanding to know what they have done with the powers entrusted to them. “At the King’s convenience,” seems the predominant — if not the sole — determinant of national governance in America today. The Congress and the Courts, for their pathetic parts, seem positively disinterested, which goes as well for a largely somnolent public.
I have no legal background, but I can still feel intellectually insulted by Attorney General Holder’s asinine assertion that “due process” actually doesn’t involve the judiciary; that it in fact means something like “whatever process the President or his minions decide in secret that you have coming — or “due” — to you, from “whatever they like” to “not one damn thing at all.” Their violations of the Fifth Amendment alone ought to disqualify them from any position of responsibility at ANY level of government in our country. What complete and utter disgraces to our laws, history, values, and traditions.
Even beyond the clumsy and transparent Orwellian Newspeak, however, nothing can top the sheer, unbridled arrogance of asserting universal jurisdiction of American Presidential fiat — which rather neatly disposes of national sovereignty everywhere on earth. I can’t think of another nation on this planet whose people and government accept this ludicrous presumption of American presidential omnipotence coupled with a complete lack of international unaccountability.
What steaming piles of crap President Obama, Attorney General Holder, and FBI Director Mueller have dished out to an American public whose intelligence, education, and values — especially that of Truth — they clearly hold in deepest contempt.
The trinity is fast asleep. The adoption prelude has taxed the soul. One must be blind to not realize its a waste of ones mind. The mindlessness of it all, one too many sips will sink the ships with one too many unbridled lips.
Yes it was raff…. With just the right amount of adult humor….. But clean enough for family….
Make that a trifecta….. Thank you…. Michael….
Michael Murry1, March 8, 2012 at 8:31 pm
thankyou……
Michael Murray,
Thank you. “A Nation of Sheep”, we are.
Thinking back on William J. Lederer’s timeless book, A Nation of Sheep (1961), and in appreciation for Professor Turley’s critical analyses of the “parchment provisions” formerly understood as the Constitution of the United States, I offer the following verse meditation:
The Silence of the Lamb Chops
Let us bow our heads in silence
Let us close our shuttered eyes
Let us ask no pointed questions
Let us rather swallow lies
Let our ruling class mislead us
Let them wallow in the waste
Let us eat the crap they feed us
Let us grow to like its taste
Let them praise their stalwart courage
Let us meekly toe the line
Let the rich cut all their taxes
Let the poor ones pay the fine
Let us do no thing unbidden
Let us ask permission first
Let them keep the water hidden
Let us rather die of thirst
Let them keep our business secret
Let us not know what they do
Let them keep us safe from knowing
Let us smile while us they screw
Let the dead come home to quiet
Let them spare us from the sight
Let us never start a riot
Let them send some more to fight
Let us never raise our voices
Let them whisper in our ear
Let them order us to slaughter
Let us live in abject fear
Let authority compel us
Let them prod the panicked herd
Let them with cheap jargon quell us
Let us scatter at their word
Let them mumble mealy mouthfuls
Let them bumble, lean, and tilt
Let them tumble, trip, and falter
Let them crumple all we’ve built
Let them loan us Chinese money
Let them keep us all in pawn
Let them dine on milk and honey
Let us let them lead us on
Michael Murry, The Misfortune Teller, Copyright 2006
Frankly 1, March 8, 2012 at 7:44 pm
“We are so fucked.”
————
Unless there’s a major development of some sort, we probably are.