During the accusatory furor by Democrats, Republicans, and Tea Partiers during the run-up to the midterm elections-which still continues, by the way-I am not aware that any recent partisan critic has called attention to a disturbing exercise of unilateral presidential powers by President Barack Obama. Far from being secret, the exercise of power in question is the focus of a lawsuit that was heard-on its way to the Supreme Court-on November 8 before the U.S. Court of Appeals for the District of Columbia Circuit.
Brought by the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR), the suit “concerns the executive’s asserted authority to carry out ‘targeted killings’ of U.S. citizens suspected of terrorism far from any field of armed conflict… without charge, trial or conviction ….n violation of the Constitution and international law” (emphasis added).
Included in this case is a demand for “an injunction requiring the government to disclose the standards under which it determines whether U.S. citizens can be targeted for death.” The list of targeted individuals, including Americans, is said to be “based on executive determinations that secret criteria have been satisfied.” We are not told what conduct may cause U.S. citizens to be executed by their own government. Is this a state secret?
The American citizen officially revealed to be targeted for summary execution is Anwar al-Awlaki, likely to be hiding in his native Yemen. On the evidence that I have, much of it incessantly supplied by him, al-Awlaki is an influential and dangerously eloquent jihadist with links to active terrorists.
In one of his many widely available instructions to actual and potential jihadists-posted on November 8 (the day the D.C. hearings began) on Islamic websites, al-Awlaki insisted: “Don’t consult anybody in killing the Americans. Fighting the devil doesn’t require consultation or prayers seeking divine guidance” (New York Post, November 9).
Al-Awlaki-who was born in New Mexico and spent much of his early life in this country-is an American citizen. The ACLU’s Jameel Jaffer, lead lawyer for the plaintiffs, told the D.C. court on November 8: “If the Fourth and Fifth Amendments mean anything at all, surely they mean there are limits to the government’s power to use force against its own citizens.”
Adds CCR attorney Pardiss Kebriae: “As the government would have it, while non-citizens detained at Guantanamo Bay can challenge the deprivation of their liberty by the United States (in habeas proceedings in our courts), a U.S. citizen could not challenge an impending deprivation of his life by his own government” (William Fisher, ipsnews.net, November 9).
What did our Justice Department’s lead lawyer, Douglas Letter, say to the D.C. Court of Appeals in answer to al-Awlaki’s advocates? As reported in the November 9 New York Times, speaking for President Obama, Mr. Letter said: “The case involved secret security matters the court is not permitted to examine, and the president has sole power over such killings” (emphasis added). Is this still America? How many of us care?
The judge in this case, John D. Bates, regards it as “extraordinary and unique,” and, the Times continued, “pressed Justice Department lawyers to explain why the government needs a court warrant to eavesdrop on an American overseas, but not to kill one.” However, Judge Bates may not speak for the majority of this court’s panel. As I’ve reported in the past, the D.C. Court of Appeals often sides with the administration, whether it be Bush’s or Obama’s.
However this appeals court rules, the Roberts Supreme Court could set a long-binding precedent on the sole power of our president to assassinate an American citizen far beyond any field of armed conflict-and far beyond the Constitution.
The 2012 presidential elections will be upon us soon enough. Do you anticipate any insistent concern developing among the citizenry because this nation has taken up a practice that the Declaration of Independence condemned when it was being practiced by England’s King George III-“abolishing our most valuable laws, and altering fundamentally the Forms of our Government”?
In Federalist Paper No. 47, James Madison warned us to be on guard against imperialist presidents: “The accumulation of all powers, legislative, executive and judiciary, in the same hands… may justly be pronounced the very definition of tyranny.”
In an attempt to be fair, the ACLU and the CCR presented-and answered-in this lawsuit a recognition that “outside the context of armed conflict, the intentional use of lethal force without prior judicial process is an abridgement of this right (to life)-except in the narrowest and most extraordinary circumstances.” What could be so extraordinary a justification to rub out al-Awlaki?
Their answer: “Outside of armed conflict, both the Constitution and international law prohibit targeted killing except as a last resort to protect against concrete, specific and imminent threat of serious physical injury. . . . The summary use of force is lawful in these narrow circumstances only because imminence of the threat makes judicial process infeasible.”
How does this apply to Obama targeting American citizen Anwar al-Awlaki? “Targeted killing policy under which individuals are added to kill lists after a bureaucratic process-and remain on the lists for months at a time-plainly goes beyond the use of lethal force as a last resort to imminent threats, and accordingly goes beyond what the Constitution and international law permits” (emphasis added).
This U.S. citizen is in Yemen, and “The United States is not at war with Yemen, or within it”; yet he is being tracked there, through “as many as a dozen unsuccessful attempts on his life” (so far as is known as of this writing).
But al-Awlaki may yet get some due process-not from President Obama, but from a judge in Yemen. A November 7 New York Times report from Beirut related that, “A Yemeni judge on Saturday ordered a ‘forcible arrest’ of Anwar al-Awlaki, the American-born cleric who is believed to play an important role in the regional branch of Al Qaeda. Mr. al-Awlaki failed to appear Tuesday at a trial where he was accused of killing a foreigner. It is rare for a Yemeni judge to order the arrest of a defendant so soon after his failure to appear.”
At least in Yemen, an actual judge is involved in the pursuit of al-Awlaki-a teaching moment for President Obama. Tell us, sir, where in the Constitution is this unilateral executive power that abolishes due process?