Obama Declares Himself “Good King” By His Promise Not To Indefinitely Imprison You
HRH Barack Obama’s signing statement to the National Defense Authorization Act of 2012 is significant beyond just being a broken campaign promise not to use signing statements. In it the President admits he has the power to imprison American citizens indefinitely (I use “imprison” as opposed to the more popular word “detention;” you’re not being kept after school). To quiet your discomfort at the casual repeal of the rusty old Bill of Rights, the President reassures you that even though he can jail you until the end of the next Mayan Calendar without due process, he promises he won’t. Cross his heart and hope to die.
This issue is reminiscent of an interesting discussion we had last month about the statement made by two of the President’s lawyers that not only may the president kill Americans he thinks have taken sides with the enemy in the Global War on Terror, but his decision is not reviewable by the courts.
That statement by the President’s lawyers was likely a response to questions about the killing of American citizen and Al-Qaeda terrorist Anwar al-Awlaki. While most Americans (the undersigned included) applaud the death of a terrorist, assuaging our yearn for vengeance mustn’t obscure the delicate questions of Constitutional due process that remain extant when a President arrests or kills an American citizen, no matter what the charge. This is not to say that those “delicate issues” cannot be dealt with in a manner that permits the action. But as a civilized nation, deal with them we must. Or at least admit to the solutions we've crafted and come to terms with them.
We start our analysis with the genesis law that authorized Presidential action in fighting terrorists. Public Law 107-40, passed a week after September 11, 2001, states as follows:
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Notice first the President may use force against all persons “he determines” committed the defined acts. That is likely the basis of his lawyers’ statement that the President’s actions in selecting kill targets, even US citizens, is not reviewable by any court. If you strictly construe the words of the statute, the President’s lawyers appear to be right.
Notice secondly that there is no geographic restriction to the President’s power. He need not wait for a target to assume an aggressive stance on a battlefield to kill him. Al-Awlaki was killed leaving breakfast.
What lengthened our Ricochet discussion was my assertion that the President could kill me in New Jersey while praying in Church, and his indiscriminate decision to label me a terrorist would be unreviewable by any court. I assert he would be free from criminal and civil prosecution, perhaps only facing impeachment from an electorate angry at my death (though with my diabolical twin-billing as conservative columnist and civil trial lawyer, I don’t envision either end of America’s political spectrum rising in my defense).
The subject of the President’s power to kill terrorists without process was briefly discussed on Ricochet Podcast #14 of Law Talk, when host Troy Senik showed exceedingly good sense by posing a question drafted by me about it to erstwhile trial lawyers and esteemed professors John Yoo and Richard Epstein.
After Epstein and Yoo spent time waltzing with the unconvincing non-sequitur that someone on the target list can turn himself in to avoid being killed (oh you loyal slaves to due process!) Professor Epstein himself turned to the "Good King" theory. He argued we will never encounter a President abusing his power to kill (is that a reason to allow it to him?). He also noted that if the President started picking out random folks in Saudi Arabia to kill he would face impeachment. Not a criminal or civil penalty, but a political one. I agree.
Congress and the President have moved the discussion along. While Professor Epstein addressed the power of the President to act against people in Saudi Arabia, the President has confirmed with the new law and his signing statement that he has the power to move against Americans (the President referred only to depriving us of trial rights in his statement, not rights to our very lives, though the killing of al-Awlaki leaves no doubt he is convinced he can do both).
In the new authorizing statute there is an attempted sleight of hand. It states:
The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
Read that again. What doesn’t extend to US citizens? The “requirement” that they be held by the military. That simply gives the President a choice. He can elect to have the military hold you or the civilian authorities. Were he not allowed the former, the statute would have said “shall not” be held by the military, the legal term of art for “forbidden.”
I maintain my original position, only with more confidence now. Under existing laws, the President can have the military jail me in a cell forever without trial or even kill me while praying in a church in New Jersey after first declaring that he, in an unreviewable decision, finds me to be an agent of terrorists.
We have undeniably given first to President Bush and now to President Obama the trust of the Good King. As President Bush remarked after his controversial Keynesian bailouts that he “Abandoned capitalism to save capitalism,” we have to come to grips with our having abandoned individual freedom to save freedom, repugnant though it sounds. Some will argue the necessity of it, or against it.
Like Professor Epstein I have no fear of President Obama breaking the enormous trust we have put in him to be the Good King. I fear the next King and the one after that; the ones we have yet to meet.