If you are wading through all the important words in the news today trying to divine if Herman will receive the Mark of Cain (and Clinton) for his alleged fleshly wins and losses, you might stumble across this back page filler:
Two of President Obama’s lawyers assert that not only may the president kill Americans he thinks have taken sides with the enemy, but his decision is not reviewable by the courts.
It’s that last part that calls to the ghosts of the founding fathers (and I summon Epstein, Yoo and Senik for comment).
Before we measure the astronomic distance of presidential power which is unreviewable by other branches of government, let’s first compare the hypocrisy of media in their coverage of the temporary need to clear one’s throat caused by waterboarding with the finality of death caused by…well…killing. The latter at least on its face appears more consequential.
Whether George Bush could waterboard a foreign terrorist put the 4th Estate and the left (redundancy intended) into a civil rights frenzy. They demanded for foreign terrorists everything from full civilian trials to holding cells with something better than an ocean view.
Having an opinion on the legality of waterboarding was like having a pet rock – for awhile there, everyone had to have one. Yet one can scour the legions of opinions proffered by politicians, reporters, pundits, scholars, students and Internet illuminati and find nary one of them who actually set forth the text of the law they were relying upon to come to their decision of “legal” or “illegal” for waterboarding.
Oddly, there is a giant, gaping hole in the world of opinionati as to whether the President can target and kill an American citizen with no judicial determination of fault, which of course President Obama has already done.
That brings us then to CIA counsel Stephen Preston and Pentagon counsel Jeh Johnson, who were the administration lawyers who made today’s statement.
Their assertion that the President may “legally” target and kill an American references no law upon which they rely for “legality,” making their opinion about as reliable as your average Facebook posting about waterboarding.
Assume for a moment that somewhere in the growing morass of American law there is to be found a stated proclamation of Presidential power to target and kill an American citizen (Mussolini stands jealous). Assume the power is even desirable. What does it mean that the power is also not reviewable?
Unreviewable power is limitless. In law there is no review after the Supreme Court. Be they morally right or wrong, having the last word means the Supreme Court can’t ever be legally wrong. It works the same as Papal Infallibility in the Catholic Church - the highest authority can never be wrong, and change can only come from changing the highest authority.
If the President’s power to declare an American marked for extermination is unreviewable, the citizenry is then unable to declare the use of that power wrong no matter how it is used (or abused).
Measure the distance of that power – if the President were to come to New Jersey and shoot me dead, he need only declare me a terrorist supporter to move the matter from the State jurisdiction containing murder laws to the currently unseen jurisdiction of the unseen law book of presidential powers upon which the President’s men relied today.
Caution me not about “good kings” who never will abuse that power. I caution you first about the eroding and corrupting seduction of limitless power eventually leading to flawed men who someday may try.
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Comments :
Jun '10
Re: Due Process Hypocrisy: George Bush Can’t Pour Water on a Terrorist’s Face, But Barack Obama Can Kill Americans
I read somewhere in an article, and it wasn't the New York Times so it could even be true, that those CIA people that did enhanced interrogation never did anything to a terrorist that they hadn't already experienced themselves. That's the best way to understand how it works--have it done to you. The key to success was that the terrorist didn't know how ultimately tame the limits were. Now they know, and it can't work as well as it did before.
Dec '10
Re: Due Process Hypocrisy: George Bush Can’t Pour Water on a Terrorist’s Face, But Barack Obama Can Kill Americans
The "citizen" Obama killed renounced his citizenship explicitly in a youtube video. Even if he hadn't the mere fact that he was operating with an organization we are at war with marked him as a fair target. Our soldier's don't and shouldn't have to check for citizenship before they blow someones brains out.
The only thing that bothers me about the situation is the idea that this killing is "unreviewable". That part is bs. There is no such thing as an "unreviewable" policy action taken by a public official.
Edited on Dec 1, 2011 at 12:35pmRe: Due Process Hypocrisy: George Bush Can’t Pour Water on a Terrorist’s Face, But Barack Obama Can Kill Americans
The only thing that bothers me about the situation is the idea that this killing is "unreviewable". That part is bs. There is no such thing as an "unreviewable" policy action taken by a public official. · Dec 1 at 12:00pm
We are on the same page. I shed no tear for al-Alwaki being dead. The unreviewable power of the President to make him (or me, or you) that way is the issue.
May '10
Re: Due Process Hypocrisy: George Bush Can’t Pour Water on a Terrorist’s Face, But Barack Obama Can Kill Americans
This, along with our looming fiscal doom and other concerns, is why Americans can't afford a gradual reversal from our present political course. We have reached a point at which law hardly matters. Politicians are willing to do whatever they can get away with, and they're getting away with ever more bold injustices.
Again, let's not forget that our courts are presently considering cases involving legislation which wasn't even read before it was passed. By common sense, Obamacare is illegitimate. Yet it has been accepted as actual law.
What's the alternative? That's the scary part...and why we keep rolling over for frail-framed tyrants.
Aug '10
Re: Due Process Hypocrisy: George Bush Can’t Pour Water on a Terrorist’s Face, But Barack Obama Can Kill Americans
A relevant quote, "...only the executive branch, not the courts, is equipped to make military battlefield targeting decisions about who qualifies as an enemy."
Baghdad - Apr 6, 2003,
AWACS: "Tremor 21, contact Poe 11 on Blue 5"
Tremor 21 (40,000 Feet MSL, 450 knots true), "contacting Poe 11 on Blue 5."
Tremor: "Poe 11, Tremor 21 - B-52 with 27-Mark 82, 16 WCMD Combined Effects Munition, standing by for tasking"
Poe: "Stand by for 9-Line, items 5, 6, and 8 only. Item 5 - Enemy troops in ambush position under trees near road. Don't hit road, bridge approach or bridge. Item 6: (grid coordinates). Item 8 Friendlies Bearing 121Deg 2000 meters. Need it hit ASAP, friendly column approaching."
Tremor: "Weapon release in 60 Sec" - "Bombs away, impact 40 sec" - "impact in 5".
Poe:"Shack!, Enemy destroyed, bridge not hit, contact brigade on Purple 23 for next tasking."
<In Tommy De Seno's world>
Tremor: "Say, can you affirmatively tell me that there are no American defectors there? If there are, have their cases been reviewed by a court in the US?"
The above action happened and the administration is right on this issue.
Oct '10
Re: Due Process Hypocrisy: George Bush Can’t Pour Water on a Terrorist’s Face, But Barack Obama Can Kill Americans
One cannot renounce U.S. citizenship in a “youtube video”. See the U.S. State Department page “Renunciation of U.S. Citizenship”. What they don't tell you in this document is that you have to make two visits to the U.S. Embassy or Consulate, that it takes months, that your name will be published in the Federal Register honour roll of former citizens, and that starting in July 2010, the U.S. charges a fee of US$450 to renounce your citizenship.
If al-Awlaki did not go through all of these steps resulting in the issuance of a Certificate of Loss of Nationality (PDF), he was a U.S. citizen at the time he was killed.
Edited on Dec 1, 2011 at 12:31pmRe: Due Process Hypocrisy: George Bush Can’t Pour Water on a Terrorist’s Face, But Barack Obama Can Kill Americans
Instugator:
<In Tommy De Seno's world>
Tremor: "Say, can you affirmatively tell me that there are no American defectors there? If there are, have their cases been reviewed by a court in the US?"
The above action happened and the administration is right on this issue. · Dec 1 at 12:18pm
You're changing the subject. You are talking about an unexpected encounter on a battlefield.
The issue at hand is marking a guy for dead in advance and affirmatively hunting him down to kill him, said decision being unreviewable, and therefore the power to choose targets limitless.
What are your thoughts on that?
Edited on Dec 1, 2011 at 12:30pmNov '10
Re: Due Process Hypocrisy: George Bush Can’t Pour Water on a Terrorist’s Face, But Barack Obama Can Kill Americans
Tommy De Seno
We are on the same page. I shed no tear for al-Alwaki being dead. The unreviewable power of the President to make him (or me, or you) that way is the issue. · Dec 1 at 12:06p
m
So true! Between the administration being loaded up with staff who doubled as cheer leading squad for Chairman Mao and now this tidbit. Looks like the Weather Underground will be terminating those 40 million Americans that they have been wanting to eliminate since the last 60s.
There's no pretense anymore. Heck, even Bill Ayers is admitting to jump starting Obama's political career now.
Re: Due Process Hypocrisy: George Bush Can’t Pour Water on a Terrorist’s Face, But Barack Obama Can Kill Americans
John Walker
One cannot renounce U.S. citizenship in a “youtube video”. See the U.S. State Department page “Renunciation of U.S. Citizenship”. What they don't tell you in this document is that you have to make two visits to the U.S. Embassy or Consulate, that it takes months, that your name will be published in the Federal Register honour roll of former citizens, and that starting in July 2010, the U.S. charges a fee of US$450 to renounce your citizenship.
If al-Awlaki did not go through all of these steps resulting in the issuance of a Certificate of Loss of Nationality, he was a U.S. citizen at the time he was killed. · Dec 1 at 12:25pm
Edited on Dec 01 at 12:26 pm
Interesting.
Jul '11
Re: Due Process Hypocrisy: George Bush Can’t Pour Water on a Terrorist’s Face, But Barack Obama Can Kill Americans
Well Tommy, when they start waging war on average citizens in a violent fashion there's a few of us that will shoot back.
Aug '10
Re: Due Process Hypocrisy: George Bush Can’t Pour Water on a Terrorist’s Face, But Barack Obama Can Kill Americans
As were Bush & Cheney with respect to waterboarding. What's interesting to me is that, where you ought to hear the media denouncing Obama's violation of human rights, you hear crickets chirping instead.
Re: Due Process Hypocrisy: George Bush Can’t Pour Water on a Terrorist’s Face, But Barack Obama Can Kill Americans
Paul DeRocco
As were Bush & Cheney with respect to waterboarding. What's interesting to me is that, where you ought to hear the media denouncing Obama's violation of human rights, you hear crickets chirping instead. · Dec 1 at 12:32pm
Exactly. Pouring water on a guy's face sparked media coverage saturation where killing a guy does not.
Aug '11
Re: Due Process Hypocrisy: George Bush Can’t Pour Water on a Terrorist’s Face, But Barack Obama Can Kill Americans
The worst part of killing a terrorist with a drone, instead of water-boarding him, is the fact that water boarding at least has been proven to give some worthwhile intelligence.
Re: Due Process Hypocrisy: George Bush Can’t Pour Water on a Terrorist’s Face, But Barack Obama Can Kill Americans
I'll be waiting for them at your house!
Apr '11
Re: Due Process Hypocrisy: George Bush Can’t Pour Water on a Terrorist’s Face, But Barack Obama Can Kill Americans
Letters of Marque and Reprisal may only be issued by Congress, just like a declaration of war. Without an imminent threat, the President is not empowered to kill US citizens.
Dec '10
Re: Due Process Hypocrisy: George Bush Can’t Pour Water on a Terrorist’s Face, But Barack Obama Can Kill Americans
John Walker
One cannot renounce U.S. citizenship in a “youtube video”. See the U.S. State Department page “Renunciation of U.S. Citizenship”. What they don't tell you in this document is that you have to make two visits to the U.S. Embassy or Consulate, that it takes months, that your name will be published in the Federal Register honour roll of former citizens, and that starting in July 2010, the U.S. charges a fee of US$450 to renounce your citizenship.
If al-Awlaki did not go through all of these steps resulting in the issuance of a Certificate of Loss of Nationality (PDF), he was a U.S. citizen at the time he was killed. · Dec 1 at 12:25pm
Edited on Dec 01 at 12:31 pm
Would like to hear Richard or John's view on this. When they were discussing this in the Law Talk podcast both seemed to agree that al-Awlaki had revoked his citizenship.
Dec '10
Re: Due Process Hypocrisy: George Bush Can’t Pour Water on a Terrorist’s Face, But Barack Obama Can Kill Americans
So what happens if somehow the courts do not agree with the lawyers, decide to review such a presidential decision, and find that the president does not have legitimate power to deliberately target and kill a citizen?
Re: Due Process Hypocrisy: George Bush Can’t Pour Water on a Terrorist’s Face, But Barack Obama Can Kill Americans
al-Awlacki's father filed a suit and sought an injunction. He lost on two grounds. One was standing to bring the suit, but I believe the other was that it falls under the "political decision doctrine." Courts are not allowed to review purely political decisions.
I guess by that thinking the 5th and 14th amendments are purely political documents.
Edited on Dec 1, 2011 at 12:48pmApr '11
Re: Due Process Hypocrisy: George Bush Can’t Pour Water on a Terrorist’s Face, But Barack Obama Can Kill Americans
It is not an enumerated power of the President but of the Congress. It is a clear violation of the 4th, 6th, and 9th Amendments. Why do we need a court to rule on it?
Presidents have deferred to the courts. Perhaps they would in this case, too.
Jun '10
Re: Due Process Hypocrisy: George Bush Can’t Pour Water on a Terrorist’s Face, But Barack Obama Can Kill Americans
Minor quibble but technically in Catholic theology God is the highest authority, and He is eternal, and so are His laws. Therefore when a Pope (or more often a Council) defines an infallible dogma it can never be reversed, not even by a later Pope.
So it's sort of like the Supreme Court plus a very rigid version of stare decisis.