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
“Transparency and the rule of law will be the touchstones of this presidency.” ~~Barack Obama
anon nurse,
A great link to an amazing argument proffered by the government in the ACLU suit.
OT… as you’ve already noted… 😉
http://www.aclu.org/blog/national-security/court-today-cia-claims-torture-technique-intelligence-method-exempted-foia
03/09/2012
In Court Today: CIA Claims That Torture Technique Is an “Intelligence Method” Exempted From FOIA
Posted by Alex Abdo, National Security Project at 9:29am
Today I will argue in the federal court of appeals in New York that the CIA must release cables describing its use of waterboarding. The CIA has argued that, even though President Obama has declared waterboarding to be illegal, the cables do not have to be turned over in our Freedom of Information Act (FOIA) lawsuit because waterboarding is an “intelligence method.” We have argued that the CIA’s interpretation of the law is fundamentally inconsistent with the purpose of FOIA — to expose official misconduct to public scrutiny — and that, therefore, the government may not suppress details relating to an interrogation technique that even it recognizes to be unlawful.
The CIA’s characterization of torture as an “intelligence method” is shameful, and at bottom it is simply another effort to prevent the public from learning the full scope of the torture program. We know from documents the government has already released that the CIA’s use of waterboarding violated even the minimal guidelines established by its legal memos. The Obama administration should fulfill its commitment to transparency and release these additional documents.
After the CIA revealed in 2007 that it had violated the district court’s orders in our case by destroying videotapes depicting the torture of two detainees, the court ordered the agency to turn over any documents that would allow the public to reconstruct what was on the tapes. The CIA identified 580 documents that describe what was on the tapes, but it has refused to release them. The agency is also refusing to release a photo of one of the detainees, Abu Zubaydah, apparently taken around the time he was being interrogated.
The American public has a right to know the full truth about the torture that was committed in its name. (end of posting)
Elaine M. and AN,
Thank you for your constant work keeping us informed and inspired.
Mike S.
Thank you for seeing the root and the start of it all. Eisenhower saw it and warned us explicitly for the usurpation of powers by the MIC.
You know it must have occured to the MIC that “you know guys, this is a good deal—let’s keep it going” after WW”..
A little daath threat from nuclear annihilation**, after a war whixh had put so many gold stars in windows and left so many homecoming men scarred for life.
It was not difficult to scare us, USSR played the threat role so well.
And we had the drills hiding under the schooldesks, the repeated nuclear cloud to remind us. And the news, so well managed.
**(Were the two bomb exploded to end the war or to launch the awe and fear era with two horrific bangs.)
Just as I have lost most of my fear of others by being encouraged to make contact with those I fear, so perhaps we can encourage in the same way ourselves and the 79 percent to meet the unknowns which we fear will kill us.
I had a talk today with my Afganistan pharmacist. Do I fear him. No.
Do I understand his countrymen better after that short chat? Yes, I think.
Is my fear somewhat lessened. Do kids have a trouble with race? No, but some still fear the fruits of racail mixing. etc. Yes. Not easy, and yet so easy. But countering the conscious management from Washington will be difficult.
Diminishing fear is possible, through NGO action.
Achieving that, we are left with the problem of wresting control from the MIC and the TIC.
http://decoded.nationaljournal.com/2012/03/the-bucket-list-why-older-whit.php Republican primary voters are over ninety percent white and old. No wonder they favor candidates like Romney but he he only attracts the old, rich, white republicans.
Swarthmore,
Palin is looking to be on a ticket again!
Are we anticipating the day we can read a book called “Obama’s Willing Executioners”?
“It is quite another proposition to roll back 70 years of Cold War thinking that has permeated this country and disinfect the 79% of American’s who have been led to believe assassination of American citizens is justified.” Mike S.
Well said, Mike S.
Greenwald today:
The Authoritarian Mind
http://www.salon.com/2012/03/09/the_authoritarian_mind/singleton/
“Hollywood producer and director Davis Guggeinheim just produced a 17-minute “documentary” hailing the greatness of Barack Obama and his many historic and profound accomplishments, and it will be released this week by the Obama campaign. Please just watch this two-minute interview of Guggenheim by CNN’s Piers Morgan in which Guggenheim explains that nothing critical can or should be said of our President other than the fact that he is so Great that his Greatness cannot be sufficiently conveyed in a single film (via VastLeft); other than noting the obvious — how creepy his Leader worship is and how perfect of a guest-host he’d be for several MSNBC shows — all I can say is that this is the pure face of the Authoritarian Mind, but it is as common as it is repellent:: (video follows)
That article by John Stossel was pro-Romney and pro job killing vulture capitalism.
And of course I meant, “if neither party finds the unconstitutional actions ‘ILLEGITIMATE'” . . .
“The power to murder, assassinate is too mild a word, anyone deemed a threat to the country should not prevail because of obvious reasons to anyone believing in the rule of law. However, the ability to overcome the irrational extension of the rational human fear of unexpected death, is quite difficult to achieve. The rationale of using extra-legal means to eliminate those who would potentially “threaten” our country is not a new concept. What has changed is that due to the over sensationalism of 9/11, it has been brought out into the open and thus further legitimized.”
On March 8 at 11:13am that was the concluding paragraph of my comment on this. However, as this discussion has played out there is more to be said. To fully understand the motivation for these illegal actions and in light of Elaine’s post above:
“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.”
We desperately need to understand the context, to see why to this is no big deal to the Washington Establishment. While it probably was policy way before the inception of the Cold War in the 1940’s, the ability of Agency’s like the CIA and others in the national security ambit, to perform murders in the name of National security has been accepted by a wide variety of both liberals and conservatives. To name just a few of these egregious acts try googling: Mosadegh, Allende and Lumumba. All of these were legitimate heads of governments deposed and assassinated (the latter two) by CIA intervention and presumably with the President’s approval. In Viet Nam the Phoenix Program was run by the CIA and murdered literally thousands of South Vietnamese suspected of disloyalty. That this history of approved and endorsed murders of foreign citizens occurred time and again is without dispute.
Where it gets dicier, due to secrecy, is how many US citizens have also been shall we say “disposed of” because they were deemed threats to US security by governmental entities. These murders were carried out to protect the interests of the Military/Industrial Complex, the members of which see their self-interest and that of the United States as one in the same.
Coming of age in the 60’s I saw JFK, RFK, MLK, and Malcolm X targeted at
critical moments in their careers where their actions may have had grave consequences for the M/I Complex. There is ample evidence to lead us to suspect that deeply involved in these killings were members of the CIA and FBI. (Google Russ Baker to read about someone who has investigated these allegations) We also have the untimely deaths of Hale Boggs and Paul Wellstone to contemplate. This by the way barely touches the surface of these peculiar occurrences.
If you remember back to the G.W.Bush administration these actions were shrouded in secrecy and were it not for intrepid reporters like Cy Hersh and Russ Baker, there never would have eve been a public discussion of this. As it was when the allegations of targeted assassinations were disclosed the Bush reaction was to stonewall, or affirm the right. The thread that runs through all of this since the birth of the Cold War is that extraordinary times call for extraordinary measures. In my comment referenced above I attempted to clarify the psychological background that allows our Washington “wise ones” to condone such abrogations of the Rule of Law.
My point here is that this is nothing new, merely a public announcement of what the majority of Washington insiders deem to be responsible goverment.
This murder must be opposed, but to do so, the false reasoning behind it that justifies its’ use must be exposed. Do dangers exist from fanatical people to the citizens of this country, they certaily do. However, dangers of sudden death and destruction have always been a part of what it is to be alive. Our Constitution and our need for a Rule of Law, comes from the desire to dampen the murderous aggression that lies in every one of us.
It is one thing for us here, highly informed and educated in general, to see things as they are behind the curtain of Americana and rail against them. It is quite another proposition to roll back 70 years of Cold War thinking that has permeated this country and disinfect the 79% of American’s who have been led to believe assassination of American citizens is justified.
As Thomas More asked (in “A Man for all Seasons”):
“And when the last law was down, and the Devil turned round on you, where would you hide … the laws all being flat?”
Bron,
We aren’t going to agree on the ideas written in that article. I think Don S. shows what we can agree on. He writes: “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.”
We can agree this is a totalitarian system which we must oppose. My view is opposition must be peaceful or we will further harm our own society. After that people who think like you and people who think like me will be working towards a different set of ideals, but that’s O.K. ! As JT’s post on free speech shows, we will have competing ideas.
Jill:
http://www.jewishworldreview.com/0312/stossel030712.php3?printer_friendly
AN, “All too often government openness and national security are thought of as opposing national interests and values.” . . . and targeted assassinations and terrorizing local populations as promoting “security” and “trust”. The supply of “enemies” is endless to a government which insists on their necessity. Simple enough for anyone to grasp yet remain realistic about true threats. But it doesn’t follow the narrative we are fed.