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
Sunshine Week 2012 Discussion – Secrecy, Disclosure and the Risks for Security and Accountability
All too often government openness and national security are thought of as opposing national interests and values. In reality, though, openness and security are not always in contention.
Join us in person at the Knight Conference Center in the Newseum or via webcast on Friday, March 16 from 1:15 to 3:30 EDT as our panel of experts, including Pulitzer Prize-winning journalist and author of Top Secret America, Dana Priest, discuss the practice and policy keeping and telling secrets in America.
Friday, March 16, 2012, 1:15 – 3:30 (EDT)
http://www.openthegovernment.org/node/3375
Where?
The event will be held in the Knight Conference Center at the Newseum (555 Pennsylvania Ave., N.W., Washington DC).
There is no charge to attend, but attendees are encouraged to guarantee seating in advance. To register for the 2012 conference, please contact Ashlie Hampton at ahampton@freedomforum.org, or 202-292-6288. When registering, please provide your name, title, affiliation and contact information for agenda updates and other news.
When?
The event will be held on Friday, March 16, 2012 – 1:15- 3:30pm (EDT), in coordination with the Freedom Forum’s National FOI Day conference.
@firefly “Too many Americans will now say they don’t care what our president does “as long as it makes us safe”!
Perhaps, but I’m tempted to say that’s so 2005. There really is no choice but to push back. So much depends on whether it catches on in a broader way. Controlling the messaging as it were. And since this is a power grab by the executive of whichever major party is in power, with Congressional acquiescence, there is an aspect of 1) big government 2) invasive government 3) dysfunctional government 4) corrupt government that is a huge part of the picture. Leveraging the general discontent with government to focus on this issue is paramount. That force, if properly harnessed, could be more potent than any ‘wedge’ issue that pits the supporters of one major party against the other.
Of course, if neither party finds the unconstitutional actions “legitimate”, would the so-called “independent” MSM? The gatekeepers of public opinion.
I, too, have been discouraged by the imbecilic “9/11 changed everything” drone. But there are tides and trends in public policy and, God knows, it’s hard to imagine swing much more to the radical, totalitarian, right wing than has politics in the US.
Jill,
Thanks. Glenn Greenwald highlighted the following exchange in one of his past postings:
From the Colbert Report:
The Word – Due or Die
Attorney General Eric Holder explains why it’s perfectly legal to execute an American citizen without trial in a time of war.
http://www.colbertnation.com/the-colbert-report-videos/410085/march-06-2012/the-word—due-or-die
What Awlaki was not so well known for was his involvement as an FBI informant before 9/11. Inquiring minds want to know why he was really killed!
ACLU Wants Obama To Release Targeted Killing Records
—By Adam Serwer| Wed Feb. 1, 2012
http://motherjones.com/mojo/2012/02/aclu-wants-obama-release-targeted-killing-records
Excerpt;
The ACLU filed a Freedom of Information Act lawsuit Wednesday seeking not only the legal justification for America’s targeted killing program, but the process by which US citizens suspected of terrorism are placed on its so-called “kill list.” The ACLU is also seeking the evidence the US government used to determine that radical American preacher Anwar al-Awlaki, who was killed in September, was actually a terrorist.
Little is known about the process by which the US determines whether killing an American citizen suspected of terrorism abroad is justifed. Just last week, Defense Secretary Leon Panetta told CBS’ 60 Minutes that the president himself signs off on targeted killings when aimed at American citizens.
While the New York Times has also filed a FOIA lawsuit seeking the Office of Legal Counsel memo that lays out the legal justification for targeted killings of American citizens suspected of terrorism, the ACLU lawsuit goes farther in asking for specific evidence both related to Awlaki’s death and details about how the US government decides it can kill one of its own citizens without a trial. While Awlaki was well known for spreading extremist ideas, concrete evidence of his operational involvement with Al Qaeda in the Arabian Peninsula was never made public.
Poll: Americans Approve Of Targeted Killing Of American Terror Suspects
—By Adam Serwer| Wed Feb. 8, 2012
http://motherjones.com/mojo/2012/02/poll-americans-approve-targeted-killing-terror-suspects-americans
Excerpt:
Buried in the recently released Washington Post/ABC poll noting improving numbers for President Barack Obama are numbers showing that Americans are favorably disposed towards the use of targeted killing in counterterrorism operations, even if the targets are Americans.
Here are the poll results: Overall 83 percent of Americans approve of the use of “unmanned, ‘drone’ aircraft against terrorist suspects overseas,” 59 percent strongly and 26 percent “somewhat.” Of those who approve, 79 percent think the use of targeted killing against American citizens abroad who are suspected of terrorism is justified. The Washington Post’s Greg Sargent, who takes a closer look at the internal numbers, finds that “Democrats approve of the drone strikes on American citizens by 58-33, and even liberals approve of them, 55-35.” Whether as a result of partisan identification with the president or an artifact of the United States shifting to the right on counterterrorism policy in general, it doesn’t seem likely that Obama will pay a high political price with his base for either the escalation of drone strikes since taking office or the use of drones to kill Americans abroad suspected of terrorism.
Bron,
I think a sense of entitlement is most likely to be found in the ruling elites. They feel entitled to steal our money and give it to themselves, for example. For example, the TARP money was paid back by taxpayers funds, not the banks (see naked capitalism for that story). Elites feel entitled to destroy our laws and get away with it. That said, fear has been one of the most important emotions that govt. has whipped up to make people do several things which are not in our interest: 1. turn on other ordinary people., Mention the word tea party and you will see many liberals salivate with hate. Mention the word liberal and you will see many conservatives do likewise. Ask yourself, who benefits from this unthinking, automatic hatred? 2. under Bush, Republicans claimed that Bush was a great guy and could not possibly misuse executive power, he could handle it because he would only use it for good. Now, under Obama we have Democrats who claim Obama is the good guy who would NEVER misuse his power. In each case reality is suspended in favor of cultish partisanship . Grabbing unlawful executive power is never working for the good, it is automatically working towards something which is bad, both legally and morally.
We now find ourselves in the situation where many people, both Republicans and Democrats, have come to accept murder, torture, false imprisonment, etc. as normal powers for a president to wield. I agree with you, this is scary.
When the US Government Can Kill You, Explained
—By Adam Serwer| Mon Mar. 5, 2012
http://motherjones.com/mojo/2012/03/eric-holder-targeted-killing
Excerpt:
“‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security.” Holder said. “The Constitution guarantees due process, not judicial process.”
Who decides when an American citizen has had enough due process and the Hellfire missile fairy pays them a visit? Presumably the group of top national security officials—that, according to Defense Secretary Leon Panetta, decides who is targetable and forwards its findings to the president, who gives final approval.
There won’t be any drone strikes in Denver anytime soon. But you might want to be careful when traveling abroad, because Holder made it clear that there are no geographical limits in the fight against Al Qaeda. “Neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan,” Holder said. “We are at war with a stateless enemy, prone to shifting operations from country to country.”
Holder’s speech did outline some concrete limits to when the US government is allowed to target its own citizens. The target has to pose an “imminent threat of violent attack” to the US and be beyond the ability of American authorities to capture, and the strike can’t violate international standards governing the use of force by killing too many civilians or noncombatants.
But don’t assume that when Holder says “imminent threat of violent attack,” he means that you’re actually part of a specific plot threatening American lives. “The Constitution does not require the president to delay action until some theoretical end stage of planning when the precise time, place, and manner of an attack become clear,” Holder said. That would introduce an “unacceptably high risk of failure.” When he refers to “failure,” Holder presumably means failing to kill the target before the attack or plan for an attack materializes, not the possibility that the government might accidentally kill an innocent person.
If the standards for when the government can send a deadly flying robot to vaporize you sound a bit subjective, that’s because they are. Holder made clear that decisions about which citizens the government can kill are the exclusive province of the executive branch, because only the executive branch possess the “expertise and immediate access to information” to make these life-and-death judgments.
Holder argues that “robust oversight” is provided by Congress, but that “oversight” actually amounts to members of the relevant congressional committees being briefed. Press reports suggest this can simply amount to a curt fax to intelligence committees notifying them after the fact that an American has been added to a “kill list.” It also seems like it would be difficult for Congress to provide “robust oversight” of the targeted killing program when intelligence committee members like Sen. Ron Wyden (D-Ore.) are still demanding to see the actual legal memo justifying the policy.
“I appreciate Woody Allen’s humor because one of my safety valves is an appreciation for life’s absurdities. His message is that life isn’t a funeral march to the grave. It’s a polka.” -Dennis Kucinich
Dennis Kucinich: Conscience of the Congress
Posted on Mar 8, 2012
AP / Charlie Neibergall
By Robert Scheer
http://www.truthdig.com/report/item/dennis_kucinich_conscience_of_the_congress_20120308/?ln
Excerpt:
…That populist passion caused him to rouse the ire of the banking elite that insisted that the city divest its municipal power plant to benefit a huge private power company.
When Kucinich refused to play ball with the downtown banking interests they pulled the plug on Cleveland finances and temporarily derailed his career. But 14 years later the Cleveland Plain Dealer, which has savaged him since his mayoral days, ran a headline conceding “Dennis Was Right” as it belatedly acknowledged that his refusal to sell the plant had provided needed competition to private power, resulting in lower energy costs for consumers.
Dennis early on made a choice to rise politically by faithfully representing his people rather than betraying them, as is the norm in politics. In our Playboy interview he made a joke concerning the criticism of all the idealistic young people who had joined him in administering Cleveland: “The real reason the young people I’ve appointed have been criticized is that they haven’t learned to steal yet. If they learned to take bribes they’d be praised as innovative and bright.”
So, too, Kucinich, who has been unfailingly resilient in advocating for the vulnerable, whether they were the working poor in his district or the folks our government bombed throughout the world. He was defeated this week by a fellow House member who prides herself on bringing home government bucks, particularly in defense expenditures. Her pitch to the voters was that her role on the House Appropriations Committee would help keep the pork barrel open, big-city Dem style.
Kucinich never competed in that way. He has been a national symbol of resistance to excessive government power and waste. He also has been a champion of social justice. His has been a rare voice, and one way or another it must continue to be heard. Simply put, when it came to the struggle for peace over war, Dennis was the conscience of the Congress. And he was always at the forefront in defending the rights of unionized workers who once formed the backbone of a solid middle class and who are now threatened with extinction.
Kucinich will surely be back for another turn in public life. As he put it in our Playboy interview:
“I appreciate Woody Allen’s humor because one of my safety valves is an appreciation for life’s absurdities. His message is that life isn’t a funeral march to the grave. It’s a polka.”
Dance on, Dennis.
Attorney General Eric Holder Defends Legality of Targeted Killings of U.S. Citizens Overseas
Jill:
part and parcel of the entitlement mentality. Security is more important than liberty.
So we have traded security for our freedom. “When government can give us all we want, it can also take all we have.” Or words to that effect.
Well said, Jill. And thanks for the updates, Elaine M. and DonS.
“We start to move in a direction of repression. We start to move in a direction of conferring upon the government a life and death power. It’s very dangerous for the country.” -Kucinich (in triplicate, now)
There’s a covert, domestic program… We’re already on the “the road of repression”… and “it’s very dangerous”, indeed. As Frankly articulately stated last night, “We are so fucked.”
Too many Americans will now say they don’t care what our president does “as long as it makes us safe”!
Yes, they are unfamiliar with it in the same way they were unfamiliar with Bush’s torture policy! That is, they’ve been thoroughly briefed and have no intention of doing anything except supporting this unlawful grab for power by the executive.
The branches of govt. are in collusion against our Constitution and the people. There are still some people of conscience still left in Congress and the judiciary but they are being out maneuvered by the executive.
A writer on Black Agenda Report pointed out that liberals were able to raise their voice against the repulsive things Rush said. He suffered some consequences for that in loss of advertising revenue and public repudiation of his cruelty. That should tell us speaking out can and does work. We could join together to say this is wrong. We really need to do that.
Margaret Kimberley, a senior editor, wrote the article. It is a true expression of the exasperation many of us feel when so many good people either remain silent or actively support the dismantling of the rule of law.
Elaine, I see I duplicated some of your post @ 8:42. Seems like we’re both unimpressed with Pelosi and Reid.
Kucinich gets it: “Targetd killings an assault on the Constitution”
via TPM
““The fact that our government can set itself up as policeman, prosecutor, judge, jury and executioner, all wrapped into one fatal moment, should cause every person who loves this country to be deeply concerned about the direction we’re going.”
“We start to move in a direction of repression. We start to move in a direction of conferring upon the government a life and death power. It’s very dangerous for the country.”
Notice the bravery of the leaders:
“Asked for comment Thursday, House Minority Leader Nancy Pelosi (D-CA) and Senate Majority Leader Harry Reid (D-CA) both claimed to be unfamiliar with the administration’s legal rationale. Reid, though, said he strongly supported the administration’s decision to kill Awlaki. ”
http://tpmdc.talkingpointsmemo.com/2012/03/kucinich-targeted-killings-an-assault-on-the-constitution.php
And the administration is still stonewalling on the “legal” memos:
http://www.emptywheel.net/2012/03/09/the-senate-judiciary-committee-hasnt-seen-the-targeted-killing-memo-either/
http://www.cci-ammunition.com/game/default.htm
If Director Mueller is in doubt, maybe he should practice on Praire Dogs first.
Maybe CCI could change the “Dog” to a citizen yelling “come on Obama what do you got, you aint got nuthin. Bring it on.”
TPMDC
Kucinich: Targeted Killings ‘An Assault On The Constitution’
SAHIL KAPUR MARCH 9, 2012
Excerpt;
Attorney General Eric Holder this week made the legal case for the targeted killings program that led to the assassination of US citizen Anwar al-Awlaki, who was living in Yemen and deemed by the executive branch to be working with Al-Qaeda. Kucinich did not mention Obama by name but lashed out at the policy championed by the President, whom he dropped out of the 2008 Democratic presidential primary to endorse.
“It’s dangerous,” the eight-term congressman said. “It’s not just what it stands for in and of itself. It’s the direction it moves to and where it can take us, as a step to something even more destructive. We start to move in a direction of repression. We start to move in a direction of conferring upon the government a life and death power. It’s very dangerous for the country.”
Asked for comment Thursday, House Minority Leader Nancy Pelosi (D-CA) and Senate Majority Leader Harry Reid (D-CA) both claimed to be unfamiliar with the administration’s legal rationale. Reid, though, said he strongly supported the administration’s decision to kill Awlaki.
*****
Pelosi and Reid are “unfamiliar” with the administration’s rationale? Really?