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.
- Comment (58)
- · Quote
- · UnfollowFollow (0)
Comments:
Mar '11
Re: Obama Declares Himself “Good King” By His Promise Not To Indefinitely Imprison You
If necessary, I would prefer the Executive act under the doctrine of prerogative in a particular situation and be forced to defend its actions as Lincoln, then to prematurely cede this authority to the office and hope that President’s will act soberly with regard to its use. There is too much mischief in this portion of the bill, especially given the length of the conflict we are likely to be fighting with various "terrorist" organizations into the future.
Would a public outcry ensue is the authority ceded by Congress here was abused? Surely. But this assumes that the President would have to make his apprehension public--and the fact that this is not required anywhere in the law (to my knowledge) is disturbing given the growth of the security state more broadly under the Executive in the past decade.
Can we not say that this law gives the President the de facto power to abrogate habeas at his discretion and potentially in secret? That's exceedingly unsettling.
Jun '10
Re: Obama Declares Himself “Good King” By His Promise Not To Indefinitely Imprison You
Mr. De Seno, I share your concern. I do not understand the necessity of allowing an American citizen to be jailed forever, without council and with no right to speak out publicly in your own defense. In Al-Awlaki's case I argued against his killing, with much opposition. I believe the President must at minimum, present a case with evidence that a de patriated American citizen living abroad has blood on his hands. I never saw that with Al-Awlaki. And I have less confidence than even you in the "Good King" stuff. I see a fascist bent with a number of our current lawmakers. I am not so sure about our President either.
Dec '10
Re: Obama Declares Himself “Good King” By His Promise Not To Indefinitely Imprison You
Well, since DHS is monitoring social networking websites for key words and tricky phrases that might lead the executive to determine one is a terrorist I recommend care when crafting posts for facebook, twitter, and even here, as I argued last week.
Dec '11
Re: Obama Declares Himself “Good King” By His Promise Not To Indefinitely Imprison You
Tommy, this link doesn't work: but his decision is not reviewable by the courts.
Re: Obama Declares Himself “Good King” By His Promise Not To Indefinitely Imprison You
Thanks. The original link appears to be gone so I replaced it with another.
Jul '11
Re: Obama Declares Himself “Good King” By His Promise Not To Indefinitely Imprison You
Why every American isn't freaking out right about now I don't understand. To me, this is as bad as the suspension of Habeas corpus or the internment camps.
This is every wingnuts' big government nightmare scenario, but it's ACTUALLY HAPPENING.
May '11
Re: Obama Declares Himself “Good King” By His Promise Not To Indefinitely Imprison You
This is revoltingly contrary to our constitution, founding principles, everything our democracy is supposed to uphold!
Doubtless there was some color of justification on national security grounds - but what the hell is the legislature thinking? Yeah, assumes facts not in evidence. But seriously, the 4th, 5th, 6th, 8th and 14th amendments are now dependent on presidential whim. Even the Korematsu decision did not go so far, as Japanese-Americans at least had recourse to judicial review.
Jan '11
Re: Obama Declares Himself “Good King” By His Promise Not To Indefinitely Imprison You
Presidents have always had the authority to detain and hold and even kill hostile combatants in a time of war regardless of citizenship. Every Southern soldier killed and prisoner detained by Union forces was according to Lincoln a US citizen. US citizens were among those killed and held by US forces in WWI and WWII. One of the German saboteurs captured on US soil, detained, tried by a secret commission, and executed was a US citizen.
Presidents have real power as commander in chief in time of war. The misuse of this power is a serious concern but selecting a president should be a serious decision.
The power is not unlimited in this case as Congress can repeal the use of force authorization.
Edited on January 2, 2012 at 11:35pmDec '10
Re: Obama Declares Himself “Good King” By His Promise Not To Indefinitely Imprison You
How about a really unpopular president that's rejected in a landslide? Someone like, say, Carter. But angrier, and with an even more questionable compass? The penalty will have already been paid.
Oct '10
Re: Obama Declares Himself “Good King” By His Promise Not To Indefinitely Imprison You
Add to the above the fact that HRH Obama has an FCC determined to control the internet, and now the SOPA legislation, which can shut down Ricochet or any other site for merely violating a copyright, as in a link to CBS or to YouTube.
Keep in mind, in December, the courts determined that Blog Sites are NOT legitimate news media, and therefore do not qualify for the exemption from copyright for news coverage.
Conspiracy ?? Doubtful. Just the continuing advancement of the Progressive world view.
Time for the tree of liberty to receive it's bi-annual watering with the blood of patriots?
Am I being transcribed? Does the NSA funnel strain our words this finely?
Dunno. But if I disappear, you will never know to care, nor will Mrs. Raycon.
May '11
Re: Obama Declares Himself “Good King” By His Promise Not To Indefinitely Imprison You
I wish that I could share your faith that Obama will be a "good king", Tommy, but I don't. For some time now I've had a growing fear that if defeated in the election, BHO will not go quietly. What powers does he now lack that dictators use to maintain their hold on office? He can make laws via administrative and regulatory agencies, so doesn't need the legislature, tho this power has been with the office from the start. But now his acts are free from judicial review as well - all he has to do is to announce a national security/war on terror "emergency".
This is NOT what my ancestors fought for!
Dec '10
Re: Obama Declares Himself “Good King” By His Promise Not To Indefinitely Imprison You
In the historical cases the persons were actively involved in combat against the U.S. In this instance the executive just has to deem a person a terrorist. There is a vast gulf between taking up arms against the nation and a determination made by the executive or his appointees.
Jan '11
Re: Obama Declares Himself “Good King” By His Promise Not To Indefinitely Imprison You
In the historic cases, just as today it was a determination of an executive branch official (often a jr officer or NCO) that the person was actively involved in combat or was a combatant.
The King Prawn
In the historical cases the persons were actively involved in combat against the U.S. In this instance the executive just has to deem a person a terrorist. There is a vast gulf between taking up arms against the nation and a determination made by the executive or his appointees. · Jan 2 at 2:45pm
Dec '10
Re: Obama Declares Himself “Good King” By His Promise Not To Indefinitely Imprison You
Klaatu: In the historic cases, just as today it was a determination of an executive branch official (often a jr officer or NCO) that the person was actively involved in combat or was a combatant.
The King Prawn
In the historical cases the persons were actively involved in combat against the U.S. In this instance the executive just has to deem a person a terrorist. There is a vast gulf between taking up arms against the nation and a determination made by the executive or his appointees. · Jan 2 at 2:45pm
Jan 2 at 2:53pm
Easy choice when the person has a gun pointed at you or a bomb. More problematic when they just have a facebook page.
Jan '11
Re: Obama Declares Himself “Good King” By His Promise Not To Indefinitely Imprison You
The King Prawn
Easy choice when the person has a gun pointed at you or a bomb. More problematic when they just have a facebook page. · Jan 2 at 2:58pm
You think the only persons detained or killed as combatants were pointing a gun or carrying a bomb? Seriously?
Dec '10
Re: Obama Declares Himself “Good King” By His Promise Not To Indefinitely Imprison You
Klaatu
The King Prawn
Easy choice when the person has a gun pointed at you or a bomb. More problematic when they just have a facebook page. · Jan 2 at 2:58pm
You think the only persons detained or killed as combatants were pointing a gun or carrying a bomb? Seriously? · Jan 2 at 3:07pm
Perhaps not, but they certainly were not tracked down through the diligent surveillance of facebook.
Jan '11
Re: Obama Declares Himself “Good King” By His Promise Not To Indefinitely Imprison You
The King Prawn
Klaatu
The King Prawn
Easy choice when the person has a gun pointed at you or a bomb. More problematic when they just have a facebook page. · Jan 2 at 2:58pm
You think the only persons detained or killed as combatants were pointing a gun or carrying a bomb? Seriously? · Jan 2 at 3:07pm
Perhaps not, but they certainly were not tracked down through the diligent surveillance of facebook. · Jan 2 at 3:11pm
No perhaps about it.
Facebook is merely a different means of disseminating information. Surely you would not object to Goebbels being classified a combatant.
Dec '10
Re: Obama Declares Himself “Good King” By His Promise Not To Indefinitely Imprison You
Klaatu
The King Prawn
Klaatu
The King Prawn
Easy choice when the person has a gun pointed at you or a bomb. More problematic when they just have a facebook page. · Jan 2 at 2:58pm
You think the only persons detained or killed as combatants were pointing a gun or carrying a bomb? Seriously?
Perhaps not, but they certainly were not tracked down through the diligent surveillance of facebook. · Jan 2 at 3:11pm
No perhaps about it.
Facebook is merely a different means of disseminating information. Surely you would not object to Goebbels being classified a combatant.
I see your strawman and raise you Tommy's hypothetical about being killed in church. The problem with the whole thing is that it erases the bright line between in combat actions and out of combat statements. It also removes levels of culpability. The difference between Goebbels running the propaganda arm of the Reich and some disgruntled Islamist ranting into cyberspace cannot be overstated. The only assurance we have that grousing in a blog post and actually taking up arms will be treated differently is the President's word. I just can't trust that, with this president or any other.
Jan '11
Re: Obama Declares Himself “Good King” By His Promise Not To Indefinitely Imprison You
The King Prawn
I see your strawman and raise you Tommy's hypothetical about being killed in church. The problem with the whole thing is that it erases the bright line between in combat actions and out of combat statements. It also removes levels of culpability. The difference between Goebbels running the propaganda arm of the Reich and some disgruntled Islamist ranting into cyberspace cannot be overstated. The only assurance we have that grousing in a blog post and actually taking up arms will be treated differently is the President's word. I just can't trust that, with this president or any other. · Jan 2 at 3:32pm
We have had to trust a President's judgement on questions such as this for 220+ years. You are looking for bright lines where there are no bright lines. What's the difference between a uniformed soldier sending radio messages to forces in the field and a 'disgruntled jihadist' sending instructions to a terror cell on his FB page other than the former being a lawful combatant?
Dec '10
Re: Obama Declares Himself “Good King” By His Promise Not To Indefinitely Imprison You
Klaatu
We have had to trust a President's judgement on questions such as this for 220+ years. You are looking for bright lines where there are no bright lines. What's the difference between a uniformed soldier sending radio messages to forces in the field and a 'disgruntled jihadist' sending instructions to a terror cell on his FB page other than the former being a lawful combatant? · Jan 2 at 3:44pm
The type of war has changed things indeed. I think it argues for stricter scrutiny of the powers given the government to combat the threat, not looser bindings on those powers because the battlefield has come to encompass our every day lives and is being fought essentially by civilians against our nation. Perhaps some of my fear is based in who currently holds the office, but I'm certain a good deal of my discomfort would remain with a conservative in office as well.