Does Obama claim the power to take you out?

124 thoughts on “Does Obama claim the power to take you out?”

1. Although I am not a laywer, its pretty clear that your examples of killing US citizens are legally completely different from each other, and from the killing of Awlaki. That said, whether the target is a US citizen is legally a red herring. I think Greenwald has made these legal distinctions pretty clear.

   In the Whisky rebellion, there were battlefields and their is clearly a traditional battlefield exemption from Habeus Corpus.

   In the case of a FBI sniper taking out a hostage-taker, this is a crime in progress not a battlefield situation. This would be federal analogue of criminal common law…. sniper’s behavior would be legal based on either preventing harm to the hostage, resisting arrest or both. However, that particular decision would need to be taken by sniper or hisrelatively immediate administrative supervisors…. if political rather than administrative members of the government such as the president made that detailed decision that sounds wrong. The political level is there to develop policy directives such as general rules for FBI snipers, and a president going down to that type of detailed administration would surely be unconstitutional. (with the growth of the white house staff I’m sure this distinction has been breached a lot since WW2 unfortunately)

   Killing Lee with a drone off of the battlefield would clearly have been murder, because the battlefield exemption wouldn’t obtain.

   Ike didn’t order anyone summarily executed in Little Rock, so the question doesn’t arise.

   In the case of Awlaki, there was no battlefield in Yemen in which the USA was battling Awlaki. The USA was not at war in Yemen based on common sense understanding of language. So no battlefield exception obtains. If Awlaki had fought the USA in a battlefield in Yonkers then the USA could have killed him under the battlefield exception, and if pigs could fly then they would have gas tanks 🙂

2. If in fact Anwar al-Awlaki was waging war on the United States from Yemen . . .

   Yes, “If . . . ”

   Let’s just note, though, that Anwar al-Awlaki was not a state or a part of a state apparatus waging war. Yemen might wage war, Anwar al-Awlaki, not being a state, could not. At worst, Anwar al-Awlaki might be categorized as a dangerous criminal.

   There are good reasons why “war”, by definition, is waged between states, or at least between belligerents aspiring to statehood, and a war against poverty or a war against drugs is merely metaphoric, a rhetorical exaggeration. We don’t want the awesome power of the state, particularly the awesome power of the executive, unleashed in the deadly, destructive expedience of war. We want the power of the state constrained by rules and procedures that require rational deliberation and deliberate ascertaining of facts.

   Mr. Obama does claim the executive authority to murder anyone anywhere. OK, it’s not “murder” if the President does it. But, that’s what he claims — the authority to kill people he chooses to kill without being questioned in any other place about who or why he chooses to kill. Mr. Holder is on record confirming that the administrative process Obama, Brennan and others engage in to identify targets constitutes “due process” under the law. Lots of people have been unable to work out why it is illegal for Mr. Obama to assassinate American citizens and other (often unidentified) people in Yemen. So, now, his CIA nominee and Attorney General are being pressed to distinguish the case of an American citizen in Yemen from the hypothetical case of an American citizen in Alabama. There’s no particular reason for the jump, other than it brings it closer to home, and is easier for some people to imagine in its full horror. But, basically, as a matter of moral and legal principle, it was wrong to assassinate al-Awlaki in a country not at war with the U.S. (in a “war” that does not and cannot exist), and it would be wrong to assassinate people he doesn’t like in Alabama, though I imagine he could get away with it, if he dressed it up properly. If an ordinary policeman can beat or kill a suspect (or a “suspect”) and get away with it, the President certainly can, if he or his minions are minimally clever. Evidently, he doesn’t even want to dress it up.

   As soon as we let “war” be waged against an abstraction instead of a state, we let go of the rule of law. Because in a war, collateral damage is acceptable and executive decisions are wagers, not subject to review. You can casually float out your “If . . .”, and not even notice that no fact had to be established by any process, not that any individual was “waging war” (as if that were possible), not that any condition of imminent threat had to be defined or established, nothing in fact, but the executive’s whim.

   1. Al-Quaeda is an “abstraction”? Funny, looks like an organization to me. And non-state actors can and do engage in military operations; whether you want to call that “warfare” depends on the situation, but the people who get blown up are dead either way. The notion that “war” and “crime” are mutually exclusive is false.

      Note that if the Yemeni government had allowed al-Awlaki to organize violence against U.S. persons and installations from its territory, that would have constituted an act of war by Yemen on the U.S. In fact, a Yemeni judge had ordered that he be captured “dead or alive.”

      As to the assertion that Obama claims the right to kill at whim, I repeat my request for a specific citation. Do you really think Nino Scalia is losing sleep?

      1. But we don’t actually know whether it’s true that Anwar al-Awlaki was a terrorist, a propagandist or just a Islamic radical who didn’t like America and said so. We don’t know because all of the evidence related to the decision to kill him is secret. Obama ordered a man’s death based on secret evidence that his was plotting against the USA. Is there anybody who would be safe from being denounced and then tried in a secret court based on secret evidence if he had the president or one of his intelligence advisers as an enemy. Not that farfetched, either—it’s exactly the kind of thing that’s commonplace in countries where the rule of law is weak.

         1. But we don’t actually know whether it’s true that Anwar al-Awlaki was a terrorist, a propagandist or just a Islamic radical who didn’t like America and said so.

            There are numerous public statements al-Awlaki him urging Muslims in America to take up arms against the United States government. He publicly acknowledged being in contact with Nidal Hasan before Hasan killed 13 of soldiers at Fort Hood, and al-Awlaki praised Hasan for having committed the shooting in public statements. He also publicly acknowledged having been in contact with Umar Farouk Abdulmutallab, who attempted to bomb Northwest Airlines Flight 253 on December 25, 2009, and he praised Abdulmutallab for that attempt in public statements.

            That is good, public evidence that al-Awlaki was a terrorist. Is it irrefutable? No: it could be that al-Awlaki was just a tremendous blowhard and didn’t really play any role in encouraging and planning these attacks. But I’m not deeply troubled that the government might target someone who (i) is in hiding in a foreign country, (ii) repeatedly announces their support for terrorist attacks against the United States, and (iii) acknowledges having been in contact with specific terrorists prior to specific attacks against the United States, even if that person happens to have been a U.S. citizen.

            1. There are numerous statements published in this forum by a regular commentator reserving his right to use his considerable stock of high-capacity, high-velocity weapons to take up arms against the United States Government. In the unlikely event that I were to be elected President would I have the authority & right to (1) have him killed (2) have a hush placed on the killing (as Obama & Holder have done not only for killings but for criminal trials)?

               [For the record, while I don’t agree with the referenced commentaor’s expansive reading of the 1st Amendment I don’t actually think he should be assisinated for it; this is a hypothetical]

            2. @Anonymous: I don’t think that works. There’s plainly a difference between saying that (1) you might be willing to take arms against the US government and (2) actually urging people to do that, including people who actually shoot soldiers and try to bomb planes.

            3. Sorry; that’s me @ 7:08.

               Cranky

            4. alkali,
               Personally I don’t agree, since (1) I work amongst a group of people who regularly discuss whether my ilk can be shot when the day comes to “take back the Constitution” (2) trolley problems are intended to be hard for supporters of the national security state too, not just its opponents.

               Cranky

            5. You seem to have a rather loose definition of what makes one a terrorist.

            6. That’s not good public evidence that he was a terrorist. It’s good public evidence that he thought the terrorists were in the right. Chaplains are not combatants.

               That you aren’t troubled by the killing of someone else means nothing to me. For all I know, you might feel the same way if the warden arranged to have an inmate strangle Charles Manson* in his cell. The point is that if we are to be a nation of laws, we have to have rules that apply not only to people you care about, but also to people you don’t care about.

               *Or, to get back closer to the point, maybe if you read the government’s CSRT account regarding Fouad AlRabia, you wouldn’t be troubled by the warden having him strangled. But maybe after you read the court opinion that found his detention unlawful, you’d have a different opinion. This goes to the heart of the thing: our intelligence was wrong about a guy who was in custody for 8 years, and he’s lucky [if we can use that word] that at least he got a chance to show a court that it was wrong. And the claims that allowing this sort of thing to happen would be very dangerous to the national security — which were thick on the ground between 2003 and 2009 — proved shrill and hysterical.

      2. “War” and “crime” must be distinguished, if law is to have any meaning, since “war” is largely defined by effective suspension of law in its ordinary operations and constraints on government. It is the suspension of law, that makes claiming war is the context for arbitrary executive violence, such an attractive convenience.

         http://www.foreignpolicy.com/articles/2012/03/06/obama_s_kill_doctrine

         I think Nino Scalia is an authoritarian asshole, who uses a dead constitution he killed as toilet paper. How he sleeps is no concern of mine.

         1. My point was merely that the President, who no doubt shares your view and mine that the Republic would be safer if Scalia were six feet under where he could no longer subvert it, nevertheless does not claim the authority to send a drone to do the job.

            1. Update: The answer to the question is “no”, but if there’s no machinery in place to assure that this public answer is actually followed in practice, who cares? (Where “the President appoints somebody to assure that the President is doing the right thing” isn’t ‘machinery’.)

            2. While he seems to have voluntarily renounced the use of drones to kill Scalia, it’s not completely accurate to says that he doesn’t claim the authority to kill him by other means. Now, obviously Obama isn’t going to kill or disappear a Supreme Court justice, although I suppose one would at one time have said that about certain countries in Europe or Latin America, too.

               My point is that the mechanisms are in place which would allow this or future presidents to disappear lower profile people with impunity provided they were will to risk it and believed they enjoyed sufficient loyalty or commanded sufficient obedience from the organs of state security. Simply put, the president can simply define anyone he wants as a terrorist using secret “evidence” in a secret judgment for which he cannot be required to justify in any way by anyone. The president’s enemy can be lifted in secret and detained or killed in a secret prison (perhaps, rather ironically, a prison that was once a KGB prison.

               The “disappeared” can be tortured and released as an objected lesson. Under recent court decisions, he or she would have no recourse against the government and, anyway, the state secrets doctrine would make it impossible to maintain a lawsuit. The “disappeared” can be killed and quite literally made to disappear or he can be held as a captive in the secret prison for as long as the president wishes.

               There can be no accountability because of the state secrets doctrine and because “when the president does it, it’s not illegal”. Don’t tell me it can’t happen here. It’s happened in lots of places. In fact, it’s happened in just about everyplace that traveled any significant distance on the road we’re on.

               “Meep, meep”

            3. As I said, the entirety of the defense is, “trust me”, on a subject where trust is utterly inappropriate. The whole thing IS in keeping with the administration’s working position on transparency, though. (“We’re the good guys, so you don’t need it.”)

3. I think the problem is in the definition of “war”. Given the sort of the things we permit ourselves to do when there’s a war on, it seems to me that we should want to minimize the scope of activities that fit said definition. So, countries can declare, and carry out, war on other countries. A rebellion or insurrection of sufficient magnitude may rise to the level of a civil war. But that’s about it. Individuals, or small armed bands, may threaten to commit crimes, or may commit crimes. But a country should not stoop to declare war on criminal individuals or small criminal bands no matter what they say or do, nor should it dignify their declarations of war.

   Unless, of course, it wants to maintain a perpetual state of war.

   I don’t think that there would be many objections to the generic proposition that the police may at times legitimately use lethal force. But law enforcement is carried out under very different rules than war. When it’s war, you don’t even have to justify yourself post facto (cf. the aforementioned Anwar al-Awlaki).

4. I don’t know whether Aulaqi was waging war. Advocating, yes. And perhaps acting as a chaplain. As to anything that makes him a legitimate target of military action under the law as argued, we have only conclusory statements from the same sorts of people who assured us that Iraq had live WMD programs and stockpiles. (Or, to get closer to the expertise at issue, who believed and still believe that Fouad Al Rabia was an important player at Tora Bora). And not even that as to his teenage son.

   I don’t think the killing of Adm. Yamamoto was a crime, and I’m sure that Lee could have been killed, for example, in a raid on a train he was taking from one place to another.

   But back to Aulaqi — this is what you’re missing: there’s no ambiguity or question about what Lee or Yamamoto were doing, and their role in the respective conflicts. This is completely different from creating a secret list — as much as Mr. Brennan might personally agonize over each and every name on the list, because it’s a product of our intelligence establishment, we can’t have complete confidence in the accuracy of the judgments that have gone into making it. And when it comes to raining death from the skies, we expect more in the way of confidence than our government has earned.

   1. So it’s the secret list that is most objectionable, rather than the US citizen / non-citizen factor, or the the in US / outside US distinction.
      (or drone / non-drone choice too)

      That’s a fair complaint.

      1. Yeah, it’s not actually that hard to conceive of circumstances where you might legitimately kill an American citizen on American territory, without any trial or judicial finding preceding the action. The hostage holder has a gun to the child’s head, but you’ve got a clear shot… But the Obama position seems to be, “Trust me, I’ll only do it under those sorts of circumstances.” And this is precisely the sort of thing where “trust me” is objectionable.

         1. What procedural constraint do you suggest? (In your hypothetical, do we appoint counsel for the hostage holder and conduct a trial?)

            1. Precisely. The inability of civil libertarians to even clearly define what they object to, let alone what they would replace it with. Is a serious constraint on their arguments.

            2. Yes, what is so wrong with the notion of trial in abstentia?

               For non-us citizens, You find a neutral forum, say, Switzerland, announce a trial six months hence. The UN appoints a jurist to conduct the case and accept applications for defense counsel, let those applying determine the defense team, and the complaining state provides a prosecutor and presents its evidence. If the defendants do not appear, then if the complaining state obtains a guilt verdict, it may pursue the wrongdoers by any means necessary, subject to international law. If the defendants appear and defend, they cannot be killed, though life imprisonment is authorized in the complaining state.

               For US citizens, roughly similar only within the us system of federal prosecutors and federal defenders.

               And yes, this means that some terrible people will be able to murder others without facing the death penalty. The rule of law often does. If we can live with Dick Cheney walking free, we can survive any number of others imprisoned rather than murdered after having their names put on secret lists by “intelligence” agencies noted mostly for being completely blindsided by events and good at politics rather than intel.

            3. Well, I would suggest, AT A MINIMUM, judicial review after the fact, and a neutral observer with recording equipment sitting in on all decisions before hand. I can conceive of circumstances where you really need to take somebody out RIGHT NOW, without time for formalities in advance. I can’t conceive of circumstances incompatable with preservation of evidence, and going through the formalities after the fact. There’s got to be a fan somewhere along the way for the sh*t to hit, if the President just decides somebody is too annoying to live.

         2. Anonymous & alkali,
            Your responses are, IMHO, difficult to distinguish from argument ad Very Serious Person. Perhaps you could flesh them out a bit, add some references to when these exact questions were analyzed during the drafting if the Constitution, and explain what _you_ recommend.

            Cranky

            1. My question is not intended to be a rhetorical one. I don’t think the Constitution provides clear guidance here: certainly my ancestor in the Union Army wasn’t convening jury trials before shooting at American citizens wearing Confederate uniforms. Given what I know about the situation, and given the existing authorization for use of military force, I think the administration was operating within the law. (The alternative Brett Bellmore suggests may not be workable, but I understand it.)

            2. I’m not sure the Civil war actually has much to do with the Constitution. Suspension of Habeus by the executive, press censorship outside war zones, the Chief Justice ordered arrested… The Constitution was pretty openly put on hold for the duration.

5. Mark,

   With respect, I think you are focusing on the mechanisms and not on the questions that really matter. All important decisions leading up to the use of the drone or other deadly force are all made in secret using secret evidence and not subject to any review. Perhaps more than any other president, Obama has embraced Richard Nixon’s statement that when the president does it, it’s not illegal.

   1. What is important and different is the use of secret evidence and secret court proceedings. The President claims that he can imprison any person indefinitely for the rest of his or her life without a trial or without acknowledging that the person has been arrested on the president’s orders.   He claims that he can order the death of any person, even an American, based on secret evidence and that the decision is his alone. There are no standards, no rules, nobody looking over his shoulder. The Obama administration has invoke the state secrets doctrine to block all forms of judicial review.

   Almost by definition, a government with such powers of summary justice is a dictatorial one.   This is potentially the most significant change in our political structure since the nation’s founding.  The risk to America’s system of constitutional government has never been greater.  

   2. What is Obama’s responsibility? Obama’s record on civil liberties is no better than Bush’s and maybe far worse since he was uniquely in a position to put American back on a better path and chose to continue on the dark journey begun by Bush. If a future president abuses those powers, it will be because Obama paved the way. Yes, Nixon said it first. John Yoo expanded upon it. But Obama institutionalized it and made it bipartisan.

   Glenn Greenwald wrote that the consequence of Obama’s having made things like the use of secret evidence a policy embraced by the leader of the Democratic Party is that “arguments and rhetoric that were once confined to Fox News/Bush-following precincts will now become mainstream Democratic argumentation in service of defending what Obama is doing.  That’s the most harmful part of this — it trains the other half of the citizenry to now become fervent admirers and defenders of some rather extreme presidential `war powers.'”

   This is very possibly a defining moment in our history. By accepting for himself these powers of summary justice, President Obama has gravely imperiled our future as a free people.  Make no mistake, from this point forward, there is no longer a Constitutional right not to be arrested and imprisoned at the whim of the president.  Any of us can now legally be “disappeared”.   Family members of political opponents can likewise be “disappeared” as a way of keeping those who might speak out in line. This applies not only to nameless foreign “terrorists” but also equally to native-born Americans.  

   For a man supposedly learned in Constitutional law and theory, he and his supporters are surprisingly cavalier in overturning the limitations on executive power that the Constitution interposes as protection against the ordinary depravity of human nature.  Now, we are totally dependent upon the good nature of our elected ruler.  We can only hope that he is not a corrupt or evil man, or at best expedient as Obama appears to be.  But if a future president proves to be corrupt and power-hungry, then we are finished because we’ve tossed the Constitution in the trash.  

   1. Mitch if congress wanted to stop it they could pass a law recalling the AUMF, which is what Harold Koh and other lawyers have said Obama is acting under the authority of. Your hyperbole does not stand.

      1. Oh, good idea Anonymous.

         ::snark on:: Let’s get Congress to (a) do the right thing, (b) come together in a bipartisan way to do the right thing, and (c) control the President.
         No wonder you didn’t want to put your name on this suggestion. ::snark off::

         I see no hyperbole in what Mitch wrote. What I see is the fear that what used to be seen by many of us as the extreme ground staked out by one faction has become the de facto centrist policy of the whole political spectrum. Hyperbole? Hardly.

         1. I’m happy to put my name on it. Look, I don’t think we’re necessarily supporting the war on terror the right way, only that Mitch’s claims of lawlessness are probably unfounded. You basically made my point for me by admitting that congress has the power to stop the president. You might not like that its not doing so, but that’s where you should turn if you have a problem.

            1. Simon, this thread is about the right and/or wrong of the issue, not about how politically to accomplish estoppel.

               There’s a lot of discussion here about the right and/or wrong. You introduced a novel idea: “Hey, if it’s wrong, Congress can simply rescind the AUMF.”

               (a) Should that be the end of discussion by concerned folks about right and/or wrong?
               (b) If you’re serious, then your suggestion is about as useful as Brett suggesting that if we don’t like assault weapons being uncontrolled, all we have to do is repeal the 2nd Amendment. It’s absolutely true, and absolutely useless.

            2. It’s only ‘useless’ because not enough people agree with you to accomplish it. Which is the point of suggesting it, to try to get you to face that fact, that gun controllers tend to gloss over how their views aren’t really as popular as they like to pretend.

               I actually think enough people DO agree that the US government shouldn’t be assassinating US citizens on US territory, to do something about it. The problem is, they tend not to be people in government. A long theme of mine, that our democracy is breaking down, because we’ve now got a self-perpetuating political class whose views on a huge range of subjects differ systematically from the population at large, and who won’t LET democracy work on those subjects.

            3. I apologize, Brett, for the language that made it seem like I was slurring you or your 2nd Amendment suggestion. Quite the opposite is true. My point was that even though I believe that repealing the Second would be good, I recognize that it’s far more general and far-reaching than necessary, and most people don’t agree with me, and it ain’t gonna happen, so as a practical suggestion it’s useless in telling me how to accomplish my short-term goal of limiting access to assault-type weapons.

               Likewise, “repeal the AUMF” is a useless suggestion. The AUMF contains a lot of stuff we can’t repeal if we’re going to conduct ongoing operations against our enemies. So yes, I agree with you, there’s a lot of agreement that we oughtn’t go around killing our own citizens on our own territory. But the challenge is to effect a political solution in Washington. There’s never been a serious effort to curb filibuster abuse, because there’s always the consideration that “maybe next time we’ll be on the other side.” Nowadays, that thinking seems to permeate too many other issues.

            4. The fact that Congress has passed a law about allowing the president to do evil if he wishes isn’t the same as commanding him to do things that are antithetical to the principles on which this nation was founded. Neither does it absolve him. Obama is the main leader of this country and he alone is responsible for the choices he makes and the direction in which he leads us.

            5. “so as a practical suggestion it’s useless in telling me how to accomplish my short-term goal of limiting access to assault-type weapons.”

               That’s kind of like saying that repealing the 1st amendment is useless in telling you how to accomplish your short-term goal of establishing a state church for the nation, or saying that repealing the 3rd amendment is useless in telling you how to accomplish your short-term goal of quartering troops in people’s homes, or that repealing the 5th amendment is useless in telling you how to accomplish your short-term goal of confiscating property without any compensation… You’ve picked a short term goal that directly conflicts with the amendment in question.

      2. Yes, you’re right that if Congress wanted to put an end to the slippery slope to the “deep state” they could. How does that absolve Obama of his responsibility? You may remember that during the Bush administration, Obama himself spoke out for the rule of law and promised to restore it if elected.

         Indeed, if anything Obama has the greatest responsibility because, as I observed above, he is the leader of the Democratic Party. It is he who establishes the boundaries and party members (including me) do find it difficult to oppose a president of our own party. This is particularly true when the policy over which we would consider breaking with him and the party is also an avowed policy of the other main political party. (Slightly off topic but this is an important reason why Tony Blair was able to take the UK into the Iraq War).

         Moreover, as an individual, Obama was uniquely positioned to take the country in a different direction. He has opposed every change to or reduction of the presidential power to order people killed or imprisoned using secret and for which he cannot be held accountable (at least partly because of his aggressive use of the state secrets doctrine).

6. As a legal matter, there more than one kind of war: there’s international armed conflict, and conflict not of an international character. The government argued for a third category — none of the above — but the Supreme Court ruled in Hamdan v. Rumsfeld that the war against Al Qaeda then taking place in Afghanistan was “conflict not of an international character.”

   I’m sure that the government would tell you today that the war in Yemen — in which we are allied with the government of Yemen, engaging in hostilities pursuant the 2001 AUMF — is also conflict not of an international character.

7. If I might do it in two sentences, without any hand waving, and angels-on-a-pinisms about wars on nouns: The President can order the killing of Gen. Lee. He cannot (imo) declare, in secret without any accountability, that Prof. Kleiman is Gen. Lee, and have Prof. Kleiman executed without warning.

   1. Unfortunately, he has now affirmed that he CAN declare that Mark Kleiman is an agent of Gen. Lee, engaged in hostile activities against the U.S., and that his judgment is based on secret information not subject to any review, and that based on that judgment, he found it necessary to eliminate Mark, which is why Mark, his wife, his children, and his dog are now a large black smear on the ground where his house used to be. Period. End of story. No further details at eleven.

      1. But is this new? Could Roosevelt have assassinated a high level Nazi who happened to be a US citizen?

         1. I think you’re missing the point which CharleyCarp, Ken Rhodes and I are trying to make. In your hypothetical, the decision about who is or is not a Nazi is one which is made in secret, based on secret evidence and everything about it is shrouded in secrecy so that it is impossible to know whether a good faith decision was made or even if a presidential order to secretly arrest someone or kill someone was ever made. This is the power of a tyrant that the Constitution was supposed to guard against.

         2. Could Roosevelt have assassinated Lindbergh? Not because Lindbergh was actually a Nazi, which he wasn’t, but because Roosevelt had some secret file that showed Lindbergh was a sympathizer with Hitler’s Germany, and was working to oppose U.S. policy.

8. In terms of justifiability, you’re out on another slippery slope. Who’s to say whether or not the US and its Yemeni allies really can’t capture suspect X — if both countries would just as soon have him dead rather than in a Yemeni jail (from which he might escape) or subject to extradition (politically and legally problematic for Yemen), and, ultimately, there’s this the problem that we seem to be having trying people we’re pretty sure were directly involved in actual terrorist attacks inside the US (we just passed the 8th anniversary of the capture of KSM — if our military justice system was supposed to impress anyone on earth, I think one would have to call it an abject failure). Despite the laws governing war, in the Yemen theater at least, we seem to have little or no interest in taking prisoners, either for intelligence gathering, or as POWs.

   The government’s current position is that it has sole discretion, accountable only to the President’s conscience, over whether a given person ought to be on the list, and whether or not arrest is feasible.

9. Allow me a cynical smile. It seems completely uncontroversial in American political discourse that the US President can kill me (a foreigner) or tap my email if he unaccountably decides I’m a threat in the elastic War on Terror. US citizens have fraying rights, foreigners none.

   1. I suppose it took a foreigner to put his finger on an element that strikes me (another foreigner) as bizarre - why does so much of the discussion turn on the citizenship of the person being arbitrarily killed? Has the President of the United States the right arbitrarily to kill any foreigner in the world? Does it make a difference if the foreigner is in the US or not? Why? And why should it make a difference whether the American citizen is in the US or not? I understand the war exception (and its meaningful limits proposed here by Mitch G and others) and the heat-of-the-circumstances exception such as to save a hostage, or personal self-defence. But none of those permissions or limitations seem to me to turn legitimately on citizenship.

      And is turnabout fair play, or is this discussion yet another example of American exceptionalism? Does the head of government (however defined) or commander in chief of any country have the right to kill any non-citizen of his or her country, anywhere in the world, based on secret evidence? If not, why not? Or is it just a question of might making right? So when Iran or Pakistan or Cuba starts killing Americans at home (in those countries) or abroad (including in the US) based on secret (but highly credible) evidence that those Americans were actively engaged in plotting violence against them, I guess President Obama will have to agree that those killings are perfectly legal, under both international and American law.

10. Perhaps an RBC member with a deeper knowledge of history than mine could refresh our understanding of exactly why the following two clauses, as well as the 4th, 5th, and 6th Amendments, were included in the Constitution? Could there have been, I dunno, any examples of governmental behavior in a powerful imperial nation that led the drafters of the Constitution to think that it might not be a great thing to allow secret, unchecked government power over life and death?

    “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

    No Bill of Attainder or ex post facto Law shall be passed.”

    Cranky

    1. ‘invasion’, ala terrorists who have caused mass casualties in the USA proper? As (well, sorta) approved by Congress by the AUMF post 9/11, which has not been rescinded?

       Congress can (and should) rescind that, which would clarify our state.

11. Mark,

    Given US ‘Targeted Killings’ logic, is it OK for other countries to kill US citizens who support US policy of extra judicial killings, signature strikes or killing lists?

    1. It has to be, in logic. Only, of course, if their heads of government seriously considered the secrete evidence before ordering the killing.

12. One fundamental distinction seems to be missing in the cases you cite: the President seems to be arguing his ability to assassinate an American citizen even absent an immediate threat.

    A hostage taker or potential mass murderer can be taken out by an FBI or SWAT sniper because they are an immediate and grave threat to those around them.

    But in the case of Al-Awlaki (assuming for the moment that he had been on American soil) no specific threat existed, simply a legacy of incitement and perhaps material support for Al Qaeda’s causes. So the AG and the President are arguing that in a case where a strong suspicion or even a set of facts suggest that an American on American soil might be engaged in sedition, and might act on it at some vague future date, they can be “taken out.”

    And, as Mitch Guthman points out above, the order to kill this American on American soil would likely be classified as secret. So there would be no post-mortem examination of the facts.

    I support the drone program, actually, and I also understand the desire of a President (any president) to maintain the ability to wage war, even or especially on their own soil, and even or especially with seditious Americans who would try to destroy our institutions. But, as with all of these cases, who decides? Who decides that idle chatter on an Internet forum is different from incitement and material support?

13. Senator Ted Cruz’s questioning of AG Holder on this point is instructive. It is dispiriting that it was so difficult to get Holder to give a straightforward answer on the constitutional question, though Holder did eventually get there.
    http://www.mediaite.com/tv/ted-cruz-goads-eric-holder-into-admitting-that-killing-americans-with-drones-on-u-s-soil-is-unconstitutional/

14. Maybe I’m being naive here but I think the political and civic process is working reasonably well around this issue. The President is carrying out his responsibilities as he sees them. Most of the American people support him in this. The Congress has provided some legal backing, it certainly provides funding, and it has declined to reign in the President’s actions in this sphere. The courts have similarly declined to get involved. So it seems to me that the President’s actions are legal.

    At the same time, people both outside the government and within it are concerned and argue that the policy is not in fact legal. They are having an impact on the discussion and on public perception. If their arguments have merit and gain ground in the public’s mind, in the Congress, in the courts, then they’ll start to change policy. By the same token, if this or any other President does something obviously unjustifiable, where it becomes clear that people are being killed on a whim or for political reasons rather than supportable reasons of national security, I expect that it would change very quickly.

    1. So the Constitution isn’t so much a set of rules limiting the power of government as it is a set of guidelines.

    2. I think you’re overreading the court’s uninvolvement. IMO, the standing opinion in Aulaqi is probably right. A court decision that it lacks jurisdiction to consider a question because the question has not been brought by a proper litigant isn’t endorsement of either view. Nor is a conclusion that the dispute isn’t one that can be resolved by a court: I think the political question holding in Aulaqi is wrong, and should have been overruled, if the standing question had been resolved (whether there were 5 votes for my view, I can’t say). The decisions in Clapper (and it’s ugly stepchild Wilner) are driven by a Cold War era deference to government secrecy that I think was unfounded at the time, and is unfounded today. It is the state of the law that the government can illegally intercept your communications — for which violation FISA provides a specific penalty — but it doesn’t have to admit that it has done so, and thus making the provisions on illegality and penalty unenforceable in any practical sense.

       One would like to think that the declassification of the actual underlying facts in Reynolds would have had some impact on the positions of the advocates of secrecy, but this seems not to be so.

       1. = = = IMO, the standing opinion in Aulaqi is probably right. A court decision that it lacks jurisdiction to consider a question because the question has not been brought by a proper litigant isn’t endorsement of either view. = = =

          No one outside the epistemically closed world of high-theoretical law thinks that the “standing” business holds water - and generally only the hard right members of the circle at that (Federalist Society and the like). Everyone else thinks that when the US accuses a person of a crime/act of war, kidnaps him from his homeland (or buys him from a kidnapper), sticks him in a dungeon, tortures him for 6 years and abandons him for 5 more, that he should have his day in court. At least, they would think that it if happened to them or their family members. Saying no one, including the kidnap/torture victim, has “standing” to bring a case is a ridiculous cop-out and validation of what has been done in the name of the United States. I leave you to judge the morality of hiding behind the “standing” defense.

          Cranky

          1. I don’t understand your point. I think Aulaqi should have had his a day in court. I think it depends, though, on him having wanted a day in court.

             1. I misunderstood your argument. My fault & I apologize.

                Cranky

15. I’m not sure whether you’re playing dumb, but in case you’re not:
    Of course the only legal or moral difference is that the U.S. government is generally _more_ justified taking violent action within the U.S., as it should generally defer to other countries’ governments to pursue criminals on their soil.

    Killing Auluquai in Yemen has the exact same legal justification as killing Auluquai in Yonkers, or killing a U.S. citizen in Baltimore for funding an alternative wikileaks or killing John Boehner as he’s walking to his car because his opposition to Obama’s plans is hurting America. The U.S. is not ‘at war’ with the Muslim fundamentalist and nationalist movement any more than the U.S. is ‘at war’ with the free information movement or the Tea Party (that is, unless you can point me to how exactly the Muslim fundamentalist and nationalist movement could negotiate, sign, and internally enforce a war-ending treaty).

    1. But there is a difference isn’t there? The AUMF said we are at war with groups who sponsored the 9/11 attacks, not John Boehner, House Republicans, or the tea Party.

       1. The terminology “said we are at war” is peculiar, isn’t it?

          Our Constitution gives Congress the option to “declare war.” In our history there have been eleven “declarations of war” passed by Congress. The last was in 1942.

          There has been a lot of discussion in recent years about the meaning of that phrase, and about whether “saying we are at war” is essentially the same thing. I don’t understand the discussions, nor can I understand how it has become ambiguous. Our legal system is based in large part on following precedent. After eleven precedents, it seems to me it’s become pretty well locked in: show me the “declaration of war.”

          And I betcha Brett, who is on the opposite side of many issues from me, agrees with me on this.

       2. Two points:

          First, how do you know that we’re not at war with the House Republicans, the Tea Party or John Boehner? Based on some of the loose reasoning I’ve seen here one could argue that people who argue against the “war on terror” are “objectively supporting the terrorists” by weakening America. We have no idea of what this administration thinks merits secret imprisonment without trial or a death sentence carried out in secret. You never address the question asked by Quercus, and you really should.

          Second, one of the animating principles of our form of government was the concern that we should structurally limit the power of government so that we wouldn’t need to worry about whether we’d elected good people or bad ones as leaders. The founding fathers of our country understood how easy it is for a president to confuse his political enemies with enemies of the country; they understood that the descent into dirty war is the inefitable consequence of such unrestrained power. No matter how pure at heart a president might be, nobody in a republican government should ever be allowed to wield the power to order indefinite detention of a person and his family based on secret evidence. No president should be able to order the death of an American based on secret evidence.

          And remember, the expansive reading to the state secrets doctrine means that there is simply no way to know what’s the president what the president is doing or to hold him accountable. People just die or disappear.

16. From where I sit, the emphasis on whether drone strikes are used against American citizens or even on American soil is a distraction, and so in that sense I agree with Mark’s basic point. Like Matt, I think the real question is whether the extraordinary measure of targeted killing is only used in truly extraordinary circumstances. IMHO that should mean not just that capture isn’t a realistic alternative, but that the target poses as an imminent threat of major harm to US interests — he’s an integral part of a terrorist plot that’s on the verge of being carried out. (I’m talking about the CIA drone strikes outside of an active battle zone, not the DOD strikes in Afghanistan here.) The worry since NBC published the Justice Department drone memo last month is that “imminent” has been defined away into meaninglessness.

    In fact I might say that the possibility of using drone strikes on American soil should always be on the table to keep our thinking honest. Then the question becomes: What criteria justify the use of drones for targeted assassination — GIVEN that the target may be an American, and even an American in Yonkers? Mark’s hypothetical about when a drone strike in Yonkers would be legitimate seems reasonable to me. The question is why we should be using drones in much less extreme circumstances elsewhere around the world. As Mark points out, it’s usually harder to capture the target outside the U.S.; fair enough (at least for the sake of argument). But the other standards — particularly the principle that targeted killing should only be used against an imminent threat — still apply as stringently to targets in Yemen as targets in Yonkers, no?

    The concern isn’t just what we’d think if some other country started using drones against us; given our military, that would be pretty stupid of them. But what if India starts using them in Kashmir, or China in Xinjiang or Kazakhstan? If we want to protest, will we be able to do so with a straight face?

    1. Yes. We shouldn’t forget how these things probably look to what I would imagine to be a reasonable, moderate Muslim in another country. I don’t see why a propagandist is worth killing, even if he’s good at it. We should be able to defeat him with our ideas, or heck, with our charm.

       Meanwhile, we never used all those boxes of evidence we had about Al Qaeda’s prior activities, in New York and in Africa, after 9/11. So lots of people in Afghanistan and Pakistan probably *still* think OBL was innocent. This seems to me to be pure waste. I think legal procedures are, over time, much much more effective weapons against AQ.

       And my problem with drones is that they make killing seem easy. I think that’s probably what’s behind Paul’s semi-freakout. We are getting ethically sloppy (well, we *may* be … since no one wants to tell us anything, I guess we don’t really know) about who we kill abroad, and he doesn’t want it to happen here. I get that. This is one of his twice-a-day rightnesses.

17. Mark wrote: [U]nless someone wants to argue that al-Awlaki was not waging war on the United States.

    That is in fact exactly what I’d argue. I am in fact baffled by how many people agree that the Al-Qaeda conflict is a war in any meaningful sense of the word, on little more than our government’s say-so, and without evaluating the claim on its merits.

    Consider the following: During the Cold War, East German Stasi officials supported, financed, and harbored West German terrorists; yet, after reunification, neither the Stasi officials nor the actual terrorists involved were ever charged with a war of aggression, but only with membership in a terrorist organization, support of a terrorist organization, murder, being an accessory to murder, etc. Even though it was a classical case of state-sponsored terrorism.

    Incidentally, Johannes Weinrich, aide to Carlos the Jackal and one of the beneficiaries of this Stasi program, was arrested in 1995 in … Yemen (not Yonkers).

    The sticking point seems to be the following: If Holder were claiming for the President the authority to decide, in non-exigent circumstances where arrest is practicable, that some citizen is merely better dead, that would be an outrage.

    Can impracticality of arrest in conjunction with a sense of urgency really justify execution without a trial? Not to mention the small fact that these executions frequently seem to kill a fair number of innocent bystanders.

    What if the British government had decided to make an example of Peter King for his Provisional IRA support and bombed his New York house, assuming they had requested and been denied extradition? Would that be equally acceptable? After all, his support for a proscribed terrorist organization (including his association with NORAID, which reportedly supplied the Provisional IRA with, like, actual weapons) is not really any less than that of al-Awlaki.

    American government officials have been involved in their share of genuine terrorist activities against democratically elected governments, such as those of Chile and Iran — and not just small fry, but genuine violent coups d’etat -, lest we forget. Do they, along with their neighbors, become valid drone targets for the offended nations when America refuses to take them to task for their crimes? Or is this National Double Standards 101?

    The underlying problem seems to me that the claim that the conflict with Al-Qaeda is a war is little more than a legal fiction; a convenient legal fiction for both the Bush and the Obama administrations in that wars strengthen the power of the executive and in particular allow the executive to dispense with many of the pesky legal protections a government has to deal with in peacetime when it wishes to curtail the rights of its people [1].

    Even more since for the last decade America has been suffering just about none of the usual effects nations involved in wars have suffered. In fact, there has been an extreme scarcity of battles except for those we initiated, and none on American soil; we have seen little recent economic destruction or human suffering (except of the self-inflicted kind, especially by Wall Street actors). It is such war-induced disruptions that may make upholding the normal rules of peacetime difficult in a time of war; absent such disruptions, the justification for “martial law lite” is dubious at best (this includes, of course, not just drone strikes, but also warrantless wiretapping and other end runs around the Bill of Rights).

    I am sympathetic to the idea that the normal criminal justice system may be ill-equipped to deal with foreign-based terrorists (or other criminals, for that matter). If that is the case, we should set about reforming it accordingly, not have principles of martial law supersede it.

    [1] For the sake of completeness, it should be mentioned that it did not exactly help that Congress gave the president essentially a blank check with the AUMF.

18. Good points all. But can one of the critics tell me what they’d like to see instead?

    I’d note also that something so clearly ambiguous as this is much better addressed by someone like Mark rather than Greenwald, whose shrill and hysterical accusations of imperialism and malevolence make conversation impossible.

    1. I want the president not to have the power to order indefinite detention or execution in secret based on secret evidence.

    2. Good points all. But can one of the critics tell me what they’d like to see instead?

       Most other democratic countries seem to be doing fine using their criminal justice system to combat terrorism.

       We do have criminal justice systems with lots of safeguards and procedural protections for a reason: we know from history that, sadly, untrammeled penal powers tend to be abused, either incidentally (for the presumed greater good, even) or intentionally.

       I’m open to alternative means for obtaining justice against criminals evading the criminal justice system by virtue of operating from a different jurisdiction, assuming that these alternative means come with appropriate safeguards against abuse.

       If a person (American or not) is such a risk to society that we need to absolutely kill him or her (leaving aside the whole capital punishment issue), then it is not unreasonable to expect that the government can make a case for that person’s death. If it cannot or is unwilling, then I suspect that it may not be all that necessary for that person to die. Most importantly, a democratic government should expect to be held accountable for its actions and there should be the possibility to hold it to account. A person who finds accountability (i.e., justifying one’s actions) too onerous should perhaps consider a career goal different from “member of a democratic country’s government”.

    3. stephen colbert once famously said that reality has a well-known liberal bias. i’d like to extend that thought by saying that reality also tends to be shrill, very shrill. the reality of american imperialism and malevolence, of actions taken in bad faith, is much less ambiguous than you like, obviously, but that does not make it any less real.

19. http://www.nytimes.com/2012/06/10/books/review/power-and-constraint-by-jack-goldsmith.html?pagewanted=all

    I recommend Jack Goldsmiths views on the subject.

20. My problem with Holder is not that he is claiming that the US has authority to kill US citizens in non-exigent non-battlefield circumstances. Mark is right; he isn’t claiming that. But he is also refusing to deny it in clear language, like the Obama Administration denied itself the use of torture. And that’s a problem.

    I will make a customary move: what Katja said. With a customary caveat for her and other commentators. We must distinguish between Constitutional law and international law. They’re not the same things, and only partially overlap. The US government might violate the one while adhering to the other.

    1. I was actually thinking about writing about Constitutional and international law, but then I figured that my post was already too long.

       I’ll add that much, though: While, technically and unlike the UK, we do have a written constitution, there are parts of it that are defined so much by custom or tradition that it becomes a distinction without a difference. The rules surrounding the US Armed Forces and the use of military power arguably form such a part (see, e.g., the unresolved question of the constitutionality of the War Powers Resolution).

       As a result there is a lot that one can do without formally violating the letter of the constitution while still doing harm to its spirit (somewhat exacerbated by the Supreme Court’s love affair with formalistic bright-line rules, but that’s another story for another day).

       In particular, when both Congress and the courts decide to leave this issue largely at the discretion of the executive, it makes me nervous. Ours is a government of limited powers, and checks and balances are part and parcel of our constitutional DNA. Philosopher kings deciding issues of life and death by decree (or, in this case, in accordance with DoJ memos) are not. This is, of course, a separate question from whether the DoJ memorandum is legally sound; there’s plenty of legally sound reasoning that had better not see the light of day.

       1. That’s an interesting point you raise about the customary and written Constitutions. I think it is mostly true, apart from holding that the distinction does not make a difference. It makes a big difference. The customary Constitution does and probably should not bind courts. The written Constitution should.

          Take the Second Amendment, as one example. Even if you believe it is antiquated and ridiculous (I do), it’s been there in writing since 1791 or thereabouts. You don’t have to support Heller (I don’t!) to believe that the Second Amendment had been shamefully ignored beforehand by the courts. On the other hand, take the customary constitutional requirement that crime is a local matter, with comparatively few exceptions that were easy to justify (plus the Mann Act). It guided Congressional and Executive behavior for decades, and I think it is a fine custom. But it has been chipped away since the death of Len Bias. Courts of law pretty much ignored this custom-again with exceptions (guns and VAWA).

          Some customs live (e.g., the relegation of family law to the states); some die. But customs do evolve more than law. Legal interpretation must always be related to the text; customary interpretation is . . .

          1. Sorry about being unclear with respect to the “distinction without a difference” part. I expressed myself poorly (writing is hard, alas!). What I meant was that even if you have a written constitution, if parts of it are primarily defined through custom and tradition, it does not become much different from an unwritten one. Obviously, there is a pretty big difference between the written and unwritten parts.

21. What is it that makes someone an enemy warrior? Holder’s answer appears to be “the president’s say-so.” Absent any kind of accountability, this means that the president can kill anyone he wants to.

    I suppose politics imposes some constraints. Obama will tread more lightly around white Christian terrorists, and he will certainly not target white Christians who are guilty of mere advocacy.

    The demand for some sort of transparent accountability for such actions – now sadly lacking – seems to me sound, though the notion that having a judge sign a warrant would make everything better doesn’t.

    A warrant, in fact, would make a lot of things better. Due process: it’s not just a good idea, it’s the law.

22. Like to see instead? At the very least, the list should be public, and a court should be able to review a claim that a person is on the list erroneously. To the extent that people on the list are thought to have committed crimes — treason comes to mind, if we’re talking about making war, and material support would probably lie for people who are not US citizens — they should be indicted, and extradition publicly and sincerely sought.

    I’m not particularly pleased with the use of the 2001 AUMF as the ‘declaration’ that allows the US to intervene on the side of Yemen in its civil war (I think that ‘we are supporting the government in its civil war’ is a defensible interpretation of what is going on, at least that we are doing so as to common enemies). I think Congress should revisit that AUMF, and debate and probably enact a narrower authorization that covers things like drone strikes and other military activity in Yemen. Congress originally limited the 2001 AUMF more than the Administration wanted, and now, after more than a decade of war, should limit it further.

    I’d like to see some enforcement, somehow, of the actual criteria for classification. A great many things are called secret that do not legitimate meet the standard of ‘information, the unauthorized disclosure of which would cause serious harm to the national security.’ We can’t run a democracy with ‘trust us, if you knew what we knew, you’d support our policy’ any more than absolutely necessary.

    1. Wouldn’t publishing the list be equivalent to publishing any national security secret? If we are really fighting a war agains Al Qaeda, how is that different from, say, posting our invasion plans for Normandy?

       1. Because whether or not a particular person is a member of the enemy force isn’t a secret from the enemy. I think the ‘serious harm to the national security’ point with regard to the invasion plan is very easy to show. I think the ‘serious harm to the national security’ point with respect to Gen. Lee, the hostage taker, or the bomb maker, or Prof. Kleiman, is another matter entirely. And don’t just say ‘sources and methods’ as if that, by itself, means a goddam thing. Asking the neighbors of a suspect is a method. If the enemy were to learn that we sometimes employ this method, what harm would we expect to the national security?

          I think we can run a system with actual legal constraints, and genuine due process, without sacrificing much if anything with regard to safety. And I think our intelligence establishment has earned, over the 54 years I’ve been alive, very very little in terms of deference to its judgments about what it should be allowed to keep secret from the public.

23. cf. Washington personally leading an army to suppress the Whiskey Rebellion, …

    In my current role as de facto resident pedant or (perhapst) official samefacts.com pedant, I wish to correct a minor historical inaccuracy in the OP:

    It was not Washington, but Henry “Lighthorse Harry” Lee who led the army to suppress the Whiskey Rebellion.

    I recall, apparently incorrectly if Wikipedia is to be believed (not that my memory is perfect), that Hamilton led this army, or wanted to since he never ahd a major field command during the Revolution. Part of this story is that Washington was too old by then to lead an army effectively.

24. I would suggest that it’s widely accepted that the President can order lethal military or police force given an attack on the US. However, it’s not widely accepted that the President can do so absent an immediate threat of violence, and the administration is very studiously avoiding further elaboration as to whether or not it thinks that it can. It also fails to explain the rules of the game, which seems largely indefensible to me. See Kevin Drum (http://www.motherjones.com/kevin-drum/2013/03/killing-american-citizens-american-soil-take-2) for a good summary.

    Put another way, if the President is merely claiming powers that are already widely acknowledged, why can he simply not say so and lay out the rules of engagement? The administration’s silence implies that he believes his powers are both unreviewable and more widely scoped than most people believe.

    1. I’m not sure that I want to accept that the principle that the president can order indefinite detention or killings and then have some kind of rules for doing something that is totally incompatible with the basic structure and principles of our form of government.

       Moreover, one tactic which both the Bush and Obama administrations have used has the effect of negating all forms of regulation over the “deep state,” so what you’re left with is either that the president has the inherent power to wage unrestrained dirty war against whomever he pleases or that you have a system which treats terrorism as basically a criminal matter and removes it entirely from the realm of national security (which is admit is both dangerous and undesirable). Once the Bush administration began secretly redefining the meaning of words like torture so that it was possible to permit things like beatings, sleep deprivation, and water-boarding yet say that we don’t engage in torture.

       The problem is that once you’ve gone down that rabbit hole, there’s quite possibly no way back; as we seen with Holder’s recent manipulation of the meaning of “imminent” so that it no longer refers to something that is about to happen but now refers to something that might potentially happen in the distant future. And, obviously, once you know that the Obama administration has continued the Bush era practice of simply redefining troublesome words out of existence, the same problem obtains with Obama’s supposed ban on torture.

25. What does everybody have against Yonkers? Unlike (say) Ruby Ridge, it seems to be rich with possibilities for collateral damage.

    1. Yonkers. Isn’ that just North Bronx?

       It sure ain’t Scarsdale.

26. Here is an example, from Paul’s filibuster:
    “When I asked the President, can you kill an American on American soil, it should have been an easy answer. It’s an easy question. It should have been a resounding and unequivocal, “no.” The President’s response? He hasn’t killed anyone yet. We’re supposed to be comforted by that…….[Later on] If there’s a gentleman or a woman with a grenade launcher attacking our buildings or our Capitol, we use lethal force. You don’t get due process if you’re involved with actively attacking us, our soldiers or our government. You don’t get due process if you’re overseas in a battle shooting at our soldiers. But that’s not what we’re talking about.”
    See that? First he says what he is asking is simple, than he says it isn’t.

    1. And?

    2. The problem that many people simply refuse to deal with is (1) the people who are “attacking us” don’t wear uniforms, are hidden and can be anywhere as opposed to on a “battlefield”; (2) you, Rand Paul and the administrations defenders here seem to have an disturbingly loose definition of what “attacking us” means in real life and (3) the implications of a system of “dirty war” whereby the president determines who is an enemy of the state (and therefore subject to being disappeared) based on whatever definition strikes his fancy and using secret evidence should scare the hell out of anybody who lived through the 20th century.

       1. Mitch I’m not necessarily defending Obama, and I think you have made some absolutely excellent points on this blog and others. My concern is that it’s not clear what Obama’s critics really believe about the scope of power afforded to the executive by the constitution and/or the laws passed by congress, in this case the AUMF. I’m not a professor on constitutional law, so I can’t answer it myself, but I’m not sure other people really know either.

27. I don’t want to hear about the powers (de jure, or de facto, or otherwise) of the president. I want to hear about the powers of my county sheriff.

28. I think it would be quite useful if Anonymous would pick a handle and stick with it. Are all the posts from the same person?

    It seems to me, Prof. Kleiman, that the conversation thus far (11:10 am Mountain Time) is a complete rout of the people taking the side of the Administration and your post. Maybe you could come back and explain why you think this is not so.
    For the rest of us, repeating talking points like ‘they’re all terrorists so I don’t care’ and ‘the civil libertarians won’t propose alternatives’ ought to be considered bad faith at this point. (I feel the same about ‘it’s not really a war’ from *my* side, btw.)

    1. Sorry Charley, I’ve just been lazy and I typed a bunch of those on my iPhone (a couple are not mine). With regard to Paul, I thought I had posted here something I had written on Drum’s blog:

       I think one of the annoying things is that civil libertarians right now have trouble defining three things:
       1) What exactly do you object to?
       2) What is the correct interpretation of the relevant law or procedure?
       3) What do we do instead, if anything? (This is related to the second.)
       People like Glenn Greenwald or Rand Paul (Far left meets far right) both fail here. Instead we get a lot of screaming and yelling. I’m not saying the situation is not serious, as it most certainly is, but just that the conversation is debased. This is why thoughtful people like Kevin or Mark Kleiman seem so baffled.

       As an example of point #1, I provided Paul’s speech. He starts saying the question is as simple as “When I asked the President, can you kill an American on American soil, it should have been an easy answer. [No]” Then, about two paragraphs later, he says the answer is actually YES. ” If there’s a gentleman or a woman with a grenade launcher attacking our buildings or our Capitol, we use lethal force. You don’t get due process if you’re involved with actively attacking us, our soldiers or our government. You don’t get due process if you’re overseas in a battle shooting at our soldiers. But that’s not what we’re talking about.”

       If we can’t even keep track of the premises of our argument, than we’re not even having a debate, we’re just emoting.

       1. I don’t agree with that characterization of Greenwald — I think over the years, it’s perfectly obvious what he is objecting to and why. I don’t find him effective as a journalist, and don’t generally read his column, but I think it’s a huge mistake to dismiss him out of hand because of tone or whatever. Paul is a preening politician. I don’t expect I’d ever vote for him, but that doesn’t mean he’s wrong to say that our last several executives have claimed powers that are beyond (a) the Constitution and (b) prudence.

          I don’t think there’s much dispute about what the Executive can do in an actual battle. Hence it makes some real sense to take actual battles out of the discussion. I don’t see what you find complicated about this. The problem is when we’re not talking about actual battles, or people who have announced themselves members/leaders of an enemy force with which we are in an active war. (This is why Lee and Yamamoto don’t really get to the question either). It’s where the President decides, in secret, that some person who has not public acknowledged themselves as a combatant is a nonetheless combatant and may be killed under the laws of war.

          ‘Oh he wouldn’t’ means that your continued life is a matter of grace on the part of the President, not a matter of right (and surely you recognize that our Constitution, and the law of nations, provide rights to human beings).

          I have no doubt that there are people who meet the legal requirements of combatants who have not announced that status in a public way. The problem with drone policy is that it presumes that every man of appropriate age is such a person (hence the low numbers of civilian casualties) and the complete lack of oversight. It’s a crime for the President to order the execution of some qat farmer who is not a combatant. Who is making sure that such crimes are not committed, and punishing them when they are? Is Mr. Brennan’s conscience really good enough?

       2. let me give you my answers to the things you regard as annoying as a starting point for further non-debased conversation.

          1. i object to the killing of other human beings outside of the battlefield or an imminent danger situation (think hostage taking or ongoing violent actions) without any legal oversight.

          2. i suggest that we follow the applicable parts of the u.s. criminal code and the constitution of the united states of america.

          3. see my answer to #2.

          1. Ok. Good. This is a start. One still needs work though: Where should the legal oversight come from? Was Al-Aulaqi an imminent danger? Is there a difference in required oversight between US citizens and non US Citizens?

             1. (a) We have a whole branch of government dedicated to resolving disputes, including disputes between the Executive and individual human beings. And, including whether the government’s announced conclusions that affect that human being are arbitrary and capricious. It’s not like you have to invent something from whole cloth.

                (b) I suppose different people looking at the evidence — if they were allowed to do so — might come to different opinions. Anyone who has come to a conclusion but hasn’t looked at the evidence, including whatever Aulaqi might present to refute it, doesn’t need to be part of a serious discussion either way on this question.

                (c) I don’t think so. I don’t think citizenship shields a combatant engaged in hostilities, or that non-citizenship makes a person who is not a combatant subject to hostilities.

       3. I’m not a “civil libertarian”, but I’ll take a stab at this.

          (1) Largely untrammeled executive power; if the major limitation on a particular executive power that involves a person’s life or liberty is self-restraint, that’s too little. That’s basic “separation of powers” stuff. See, e.g.: Montesquieu, “The Spirit of the Laws”.
          (2) The problem with the DoJ memo is not that it’s legally unsound; it’s that it is part of a continuous power shift towards the executive. Bad does not equal legally unsound; legally correct does not equal good. Part of the problem is Congress abdicating responsibility in the AUMF.
          (3) Without proof to the contrary, nothing. I’m not sure why there is a presumption that one has to do something. Montesquieu’s razor: “If it is not necessary to make a law, it is necessary not to make a law”. The burden of proof for requiring more powers lies with the government. If the administration successfully argues that it needs more power to deal with international terrorism, an appropriately narrow law to that end with sufficient procedural safeguards can be drafted.

          Short version: “In Obama we trust” is not a constitutional principle.

          1. Thanks.

       4. Well, it’s nice that the very thoughtful, sophisticated people are thinking deeply whilst ineffectually stroking their chins and being baffled as we unrefined louts are so shrill. I am so sorry for debasing our discourse with all this talk of secret trials, indefinite detention and such as being the hallmarks of a dictatorial government.

          I don’t know whether you were around for the later half of the 20th Century, but certain developments in places like Germany, the USSR and Latin America were profoundly disturbing for people such as myself. It seems to me that the prospect of tipping over into “dirty war” or having a political systems revolving around a “deep state” such as exists in, say, Turkey or Russia or which existed in the throughout the Soviet empire should scare the hell out of you and the very thoughtful people you mention. I, for one, would very like to have you and those very thoughtful people you mentioned explain why it doesn’t.

          Our system of government was structured specifically to prevent abuses of power by the people running it. There was a recognition that no man is angel and that the people’s freedom from tyrannical abuses shouldn’t be dependent on whether a particular ruler is a good man or an evil one. Frankly, whether Obama “has got this” or is playing a “long game” or goes “meep, meep” all the time shouldn’t make any difference in how people feel about what’s going on and the potential for all of this tipping over into dirty war.

          1. I’m sorry if you interpreted my reference to shrillness to apply to you. I think you have been a model of clarity and its been really good to engage with you on the subject. I share your concerns and the situation is indeed profoundly disturbing. I’m just trying to get a better idea on what the problems are and how to resolve them.

             1. No apology is necessary. It is I who should apologize for snapping at you. I would also like very much to clarify a couple of points. In addition, I want to address more seriously the question you raise.

                To begin with, I don’t want to legalize or regulate torture, indefinite detention or extrajudicial executions based on secret evidence. That is not the way forward. I want to stop these things from being done by my government. They are corrosive of the fabric of democracy; to permit such evil is to put ourselves on the slippery slope to dirty war and dictatorship.

                To continue to address your question, what is the way forward? I don’t know what to do and the reason brings me back to my original point and to the quotation by Glenn Greenwald. You may not like Glenn Greenwald and perhaps you are right to disparage him (and me) as a mere polemicists but I feel that he has put his finger on the nub of the dilemma.

                During the Bush administration and continuing until Obama’s election, there was a strong feeling among nearly all Democrats that the country’s turn towards the dark side was wrong. Bush’s embrace of torture, indefinite detention and the rest needed to be reversed and those who perpetrated such evils in our name needed to be help accountable.

                But a funny thing happened after the election. When the newly elected Democratic president turned to embrace those dark policies, much of the Democratic Party turned with him. Some opportunistically, some out of tribal loyalty and some because of loyalty to Obama himself.

                Nevertheless, it is exactly as Greenwald described it. The policies were are discussing changed overnight from unthinkable evils into the bipartisan national consensus. Yet it would have been pointless to break with Obama over the issue of civil liberties since doing so would almost certainly have meant his defeat and restoration of the Republicans whose approach to civil liberties is worse than Obama’s and whose domestic policies would doom every achievement of my party (I’m obviously a Democrat).

                So I have no answer to your question. It will be too late for the next president to demand accountability from the people who have carried out these policies over two administrations. Just as it will be difficult for him or her to change what will have been the bipartisan consensus of more than a decade.

                That is also why I assign more blame to Obama than to anybody else. He was the only one who could put this country on a path back to a time when torture and arrest based on secret evidence were beyond the pale. Instead, he chose to embrace every evil begun under Bush. I don’t see any way back to our becoming the country we once were and it’s Obama fault.

             2. This is a reply to Mitch.

                It seems to me that part of what happened on the “left” — sometimes I’m not sure there is one here — is that people got consumed by economic problems and trying to survive. I think if you asked an average Democrat about these issues, a good chunk of them would be upset. But like you said, there was nowhere to go anyhow.

                I disagree though that we have passed some point of no return. I don’t believe in those, and no one person can run this country. There can still be an awakening.

    2. Bad faith? Let me try again. A state of war is an extraordinary emergency situation, during which the rule of law is officially and legitimately of secondary importance - the war effort is the most important thing. When there’s a war on, pretty much anything goes, on the leader’s say-so, precisely because the very existence or independence of a country is at stake.

       An attack by a small group of armed individuals is nothing like an attack by another country, in that respect. You can choose to call it a war, but to lower the threshold to that level is to condemn the country to a state of perpetual war - meaning, perpetual lawlessness.

       Perhaps there’s a flaw in that logic, but the argument is not presented in bad faith.

       1. Bullshit. Law continues during war. I’ll quote from Boumediene:

          “The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.”

          1. If you’re saying that law should continue during war, then I won’t argue. But if you’re saying that the law does remain intact during war, under any known regime, then I’ll quote CharleyCarp: “our last several executives have claimed powers that are beyond (a) the Constitution…”

             I do believe that our ongoing state of war had something to do with that.

             1. Violations, including unpunished violations, don’t mean that law is absent. They mean that better enforcement mechanisms are needed.

             2. This country has never suspended the rule of law during wartime. We have made some necessary and temporary adjustments to the existing legal structures during wartime and undeniably there has been some overreaching but the principle that ours is a government of laws and not of men has never been denied until now.

                In the past, we have always been fortunate in our wartime leaders. But it seems that our luck has run out. After September 11, 2001, George W. Bush lead us to a dark place because he was scared and foolish. Obama has the chance to lead the country back to the light but instead has chosen to take us further into darkness and by making our embrace of darkness “bipartisan” has also made it ever more unlikely that we will ever find out into the light that is the rule of law. That will be his legacy.

       2. And as I noted above, the law of war has one set of rules for wars between nations, and another for wars that are not wars between nations. You can decide that something that is not between nations is not a “war” but you’re making it up yourself. People are confused by the war on poverty and the war on terror. As a legal matter, we have a war on AQ and people allied with it.

29. Mark,

    That was a pretty strange letter and I don’t think it changes the focus of the debate, which has focused on the dangers of secrecy and unbridled power rather than on the question of drones specifically, as your original post did.

    But even with your focus on drones specifically, I don’t think Holder’s letter changes anything in light of what we have learned about the Obama administration’s retention of the Bush era habit of redefining words to mean whatever they want them to mean. Notice he didn’t say that the president couldn’t order Americans killed in America, based on secret evidence, only that the president couldn’t use a weaponized drone to accomplish the killing. In other words, Holder acknowledges that there is a present possibly, nonbinding self-imposed limitation regarding the method but not the objective.

    I don’t think I’m nitpicking, either. This is an administration which has redefined the word “imminent threats� to include threats that are remote possibilities in the indefinite future. Trust, once lost, is hard to regain.

    1. Right. Who defines “engaged in combat”? The Supreme Court has pretty straightforwardly ruled that one can legally advocate the overthrow of the government. And Holder’s opinion is consistent with that view. But just because it’s legal, that doesn’t mean we can’t kill you for it if we decide that your advocacy is the moral equivalent of “combat.”

30. Mark-Thanks for the clear-eyed analysis. Two questions that seem to me to invite further inquiry.

    First, why has there been so much heat from the left-wing of the political spectrum? I can understand Paulian cranks, but even ordinarily responsible commentators (e.g., Rachel Maddow) have had issues with the President’s position, issues that I frankly can’t comprehend.

    Second, why hasn’t there been other analyses such as yours, at least on the blogosphere, if not the print and TV media?

    I think that the answer is perhaps this: The left tends to take a reflexive position of opposition to government law enforcement mechanisms and extensions thereof. Hence the position of Maddow et al. The right takes (not “tends to take”) a reflexive position of opposition to any position taken by the President or the Administration. In this case, both sides, for different reasons, arrived at the same incorrect conclusion.

    1. One of the more level-headed “pox on both their houses” I’ve seen.
       Cue the music: Clowns to the left of me, Jokers to the right, Here I am, stuck in the middle with Stuart…

    2. What I can’t comprehend is why anyone can’t comprehend an issue with unreviewable determinations being made in secret. Do I have to say it slowly? Unreviewable. Secret. Determination. That a Person (Citizen, if you must) can be. Killed. Without Warning.

       1. Because we crossed that particular Rubicon many years ago when we handed over to the president the authority to launch nuclear attacks that would result in the deaths of hundreds of thousands of Americans and foreigners alike. Any courts required to review that decision? Congressional over-sight? Sunlight? Sure a president would only do so in a dire emergency (we assume) but who gets to define what’s a “dire emergency”? The president.

    3. A fair cop gov! I confess I know it’s irresponsible not to embrace torture, indefinite detention and extrajudicial murder but, well, fighting against all that stuff is part of the DFH code of conduct and there’s a lot of pressure to conform. Sorry.

       Seriously, do you really not understand why liberals are opposing torture, indefinite detention and the killing of Americans based on secret evidence even though it is being done by President Obama? Can you really not understand right from wrong?

       1. Wait. I think that Carp and Guthman are missing the point.

          Can a police office legally break down and door and shoot up an apartment with impunity? Of course not. But this does not establish an acceptable argument against allowing police officers to carry firearms.

          The point here is not that there should be no limits on the use of drones within the boundaries of the U.S., there should be. However, this does not establish a sufficient argument to rule out the use of drones within the boundaries of the U.S. at all times and on all occasions.

          Yes, we should oppose the use of drones and other weapons within the boundaries of the U.S. based upon “unreviewable determinations being made in secret.” That principle, however, should not be used to prohibit the use of drones and other weapons within the boundaries of the U.S. based upon “reviewable determinations.” (I deliberately omitted the phrase “made in secret” since police actions in exigent circumstances are frequently made prior to any judicial review.)

          1. With respect, and speaking only for myself and about what I’ve written, it is you who is missing the point. What have drones got to do with anything? I’ve not said word one about drones in this comment thread. I don’t care that much about drones and evidently neither does anybody else here since the bulk of the discussion has focused not on drones but rather on the morality, legality and wisdom of a national security regime that allows the president to secretly order the torture,indefinite detention or even murder of his fellow Americans and others, too.

             I seriously doubt whether the people who are ordered murdered by the president care particularly how the deed is done. My guess is that there are very few people who would care by what means the killing was accomplished. It is enough that the person is dead and, consequently, my discussion here has focused not on the means of by which presidents can kill whoever they want with impunity but on the more important question of whether the president ought to have the power to kill anyone he pleases based on secret evidence and whim. Also, on the potentially disastrous implication for our society.

             However, since we seem to agree on the larger questions of presidential power, I am happy to say that I generally agree with your analysis about drones, per se. With the understanding that I’m generally terrified by and opposed to the militarization of our police forces so I wouldn’t want to give them drones except in limited circumstances for basically the same reason I want them to not have tanks, machine guns and also I want them to return to police and not military style uniforms. That said, I am with you on your drone analysis.

          2. I don’t see how a single word I’ve written above can be interpreted, even slightly, to be advocacy for forbidding the use of drones in the United States (or anywhere else). Nothing I’ve written shows that I’m calling for judicial review in advance of exigent circumstances.

31. And to follow my quote from Boumediene, this from Milligan:

    Time has proven the discernment of our ancestors, for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority.

32. (Sorry, that was me)

33. I can’t think of a serious argument that, while waging war, you can’t kill an enemy. If you accept the possibility of war at all, you’ve got to accept that. Similarly, if you accept that the state has coercive power at all, it’s hard to argue that it can’t kill someone (I strongly oppose the death penalty, but I accept that the police could shoot someone holding a hostage, for example, if there was no other way to assist the hostage). In terms of ius ad bellum, whether you think al-Qa’ida is a criminal entity or an army, it’s blindingly obviously an enemy in arms.

    That said, in terms of ius in bello, there is a long-standing norm against individual assassination as a means of warfare, and I think you can make a case that societies where assassination is commonplace tend to get so awful that this is wise (1920s Japan or modern Mexico).

    However, the principle against assassination is not very well defined. Nobody, for example, thought the RAF raid on Panzer Group West’s forward HQ at La Caine Chateau was a war crime even thought it was explicitly targeted at the Panzer Group’s leaders and killed its general, von Schweppenburg. La Caine Chateau is especially relevant as the raid was launched because British signals intelligence traffic-analysed the German radio network and concluded that von Schweppenburg’s HQ was there, and also because it was carried out by air power.

    Neither did anyone care when the army group commander, Walther von Kluge, was killed in another RAF airstrike (although the pilot wasn’t looking for him, as opposed to generally attacking German transport). Or when his predecessor in the job, Erwin Rommel, was wounded in an RAF raid that specifically targeted him. Command and control is a function of an enemy army that can be legitimately attacked.

    But how does that differ from assassinating the general? It seems unsatisfactory to rely on double effect and say that you may bomb the HQ location, and if by chance you kill the general, that’s OK…

34. Mark:

    Suppose, hypothetically there was a professor who

    1) loudly and repeatedly supported the Palestinians
    2) called Israel a terrorist nation
    3) gave money to Hamas

    Suppose further that the State of Israel asked the United States to extradite him based on secret evidence Israel said proved he was assisting in rocket attacks, but that they would not share. Should the US comply?

    If the US didn’t extradite him and the State of Israel sent a hellfire missile into the faculty lounge at Berkeley to kill him and refused to explain its actions after the fact, how would this differ from the killing of Abdulrahman al-Aulaqi, a 16 year old American citizen killed by a drone in Yemen while eating at an out door restaurant?

    http://en.wikipedia.org/wiki/Abdulrahman_al-Aulaqi

35. Folks, coming up with hypotheticals that do not involve secret unreviewable determinations to kill people who are not unambiguously members of an enemy military force don’t do much to support the proposition that there ought to be secret unreviewable determinations to kill people who aren’t unambiguously members of an enemy military force.

36. Apologies if the point has been raised above (I haven’t read all the previous comments.

    Mark:

    You ask the wrong question. Nobody is credibly arguing that the government has no authority to kill without prior judicial review in a broad array of circumstances, such as you have itemized. The problem, as I understand it, is that the President and Attorney General won’t provide the actual legal foundation for the killing justifications in given cases. We are left to take it on faith that the legal basis is legit, simply because the administration claims it is so. That’s a big problem. Because there is no accountability. And what if a targeted individual happens to actually be innocent after all?

    Attorney General Holder wrote in his first letter to Rand Paul that killing American citizens absent judicial review was, in fact, justified by reference to a couple incidents, rather than provide any specific legal reasoning. His argument - and notwithstanding his subsequent “clarification” - still leaves the question open, as to whether the President has arrogated unto himself the authority to be judge/jury/executioner in cases wherein an actual judge and jury should be employed, and when the 4th 5th and 6th Amendments do and don’t matter.

    For example, does the President have authority to kill an American citizen accused of blowing up and destroying large buildings? Attorney General Holder pointed to “9/11” and said “yes.” He referenced the attack on the World Trade towers as an example justifying this killing authority. It would seem a logical implication that blowing up buildings, as in the case of Timothy McVeigh’s planting of a bomb at the Oklahoma City federal building, would be an equivalent case for justification, in the reasoning of Holder and Obama. (If not, I’d sure like to see the parsing of differences in legal terms - not situational differences.)

    So if the President has authority to be judge/jury/executioner in a case like McVeigh’s, then he would have identical authority in a case like that of Richard Jewel, who was accused - and quickly convicted by the oh-so-esteemed Tom Brokaw and the corporate press - of planting a bomb at the Atlanta Olympics in 1996.

    Except Jewel didn’t do it. A guy by the name of Eric Robert Rudolph had planted the bomb. And he went on to perpetrate other bombings.

    Apparently Obama believes he’s a better judge (jury and executioner) than Tom Brokaw/CNN/The New York Times/et al. (Well, that bar is pretty low.)

    But the point is that Brokaw et all BELIEVED Jewel had been the bomber. They were CONVINCED!!! All the “available evidence” supported that conclusion. The vaunted investigatory abilities of the FBI endorsed it. But whether by a drone or a simple bullet to the head, it appears Obama would justify the killing of an innocent American citizen on American soil all the same, because 9/11, 9/11, 9/11, 9/11, (and fuck the Constitution). And that’s simply not a legal justification, that’s a bait and switch evasion of accountability.

    My read of the situation may, in fact, be incorrect. But that’s the problem with secret legal justifications; if they’re telling the truth, how can anybody ever know for sure? I’ve no doubt George Bush and Dick Cheney had good intentions when they launched the Iraq War. And justified torture. The Westboro Baptist Church is motivated, in its own collective mind, by good intentions.

    The question which needs to be answered is on what legal foundation does any kill decision - on a case-by-case basis - have legitimacy? The fact that the administration refuses to provide answers (to more than a few Intelligence Committee Senators - but not their staff) justifiably causes suspicion of the validity of the claim.

37. The secrecy is what concerns me. If you use a drone to kill a terrorist who was waging war against the US, why not broadcast it? Why not be proud of it? Also, while I somewhat trust Obama to use this power responsibly, I place no such trust in future president Bachmann or Ryan. Do you? Really?

38. Without transparency, how can we be sure that the president has exercised this power in a just manner? I trust President Obama to exercise this power appropriately and with discretion. I do not trust all potential future presidents to do so. What's to stop a future President Sarah Palin from using drone strikes to take out uncloseted atheists such as me?

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