politics, hypocrisy and meanness in public affairs, alligators, anti-empire-ism, occasional personal stuff

Friday, April 23, 2010

Finally, the Kill Order of our Prez is examined in MSM.

Long post here, entire op-ed in the L.A. Times by former assistant general counsel of the CIA. There are several issues. One is: For whom does the government exist? or Who is it designed to serve? or Why was the government formed (which is different from 'How did the government come to be?') I would say that, broadly speaking, democracies are created in order to serve its citizens, to do things for its citizens that the individual citizens cannot do individually. Liberals and progressives believe that government should do more, but always "for" the benefit of its citizens. An additional issue is: What lawful powers does a head of a democratic or republican (small 'd' and small 'r') government hold? In the case of the U.S., imprisoning or killing a citizen is within the power of the executive only within the bounds of judicial oversight. (There are other limitations, but I am generalizing, here, in order to get to the point.) Another issue is: Are we at war? If so, are there rules? Would the position of the current President be that - in a declared war - the head of an enemy country or force could be murdered if found under anesthetic in a hospital secured by U.S. forces?  If found captured by forces allied with the U.S.?  Herewith, the article from the L.A. Times:

U.S. targets an American abroad

Should the executive branch be allowed to put a citizen on a CIA death list without judicial review?

According to media reports, the United States has taken the apparently unprecedented step of authorizing the "targeted killing" of one of its citizens outside a war zone — though the government has not officially acknowledged it.

Unnamed intelligence and counter-terrorism sources told reporters that the Obama administration had added Anwar al Awlaki, a Muslim cleric born in New Mexico, to the CIA list of suspected terrorists who may be captured or killed. Awlaki, believed to be in hiding in Yemen, has been linked to Nidal Malik Hasan, the Ft. Hood, Texas, shooter, and to Umar Farouk Abdulmutallab, the Nigerian charged with trying to blow up an airliner in December.

The reports indicate that the administration had concluded Awlaki had taken on an operational role in terrorist attacks. His addition to the CIA list shouldn't "surprise anyone," according to one anonymous U.S. official quoted in the New York Times.

It is surprising, however. As a matter of U.S. law, had the administration wanted merely to listen to Awlaki's cellphone conversations or read his e-mails, it would have needed to check with another branch of government — the judiciary. But to target him for death, the executive branch appears to have acted alone.

It adds up to this: Awlaki's right to privacy exceeds his right to life.

Since when has the fate of an American citizen — his privacy, his liberty, his life — rested solely within the hands of the executive branch of government?

Under our Constitution, life, liberty and property cannot be taken from us without due process of law. Due process means very different things in different contexts, but it usually involves judges. If the state wants to take your land for public use, it can, but you are entitled to a judicial hearing on its value. If the government wants to listen to your phones, the police must seek a warrant from a judge. If your government detains you, you are entitled to seek a judicial hearing on the lawfulness of your detention.

And if you are to be punished for your actions by death, the decision is made in court, after a trial that determines your guilt beyond a reasonable doubt, and a second trial that determines that you deserve the ultimate punishment.

In our system, even if we sometimes fail, we try to get it right before we take the life of a fellow citizen. To do that we need process and we need judges.

Of course, the Constitution is primarily a territorial document. It does not apply to foreign people in foreign countries. But it protects everyone inside the United States, both citizens and foreigners, even undocumented foreigners. It is unclear, however, which of our rights as U.S. citizens travel with us when we go overseas. Because the government hasn't been in the habit of taking away the rights of its citizens while they are abroad, there haven't been a lot of legal tests of the question. And so far, the Supreme Court has never ruled on whether constitutional guarantees prevent the government from killing its citizens abroad.

But we don't have to rely solely on the high court for an answer. It has been the job of Congress for 220 years to pass laws that pick up where the Constitution leaves off in order to protect American citizens from the excesses of government. In 1978, Congress passed the Foreign Intelligence Surveillance Act, going beyond the 4th Amendment by requiring the executive to seek a judicial order before conducting electronic surveillance on individuals inside the United States to collect foreign intelligence. In 2008, FISA was amended to require a judicial order for conducting surveillance on citizens when they are overseas too.

In advocating for that amendment, Sen. Ron Wyden (D-Ore.) got to the heart of the issue: "No matter where an American is in the world," he wrote in a Washington Post op-ed, "it always means something to be an American."

Which brings us back to Awlaki and his right as a U.S. citizen not to be killed by his own government.

If Congress is willing to protect our cellphone conversations, it should be willing to protect our lives. The legislative branch should again step up and pass a law requiring judicial review of decisions to put Americans on a CIA death list. Even in an election year, it is not "soft" to require judges to take a hard look at whether the executive is getting it right.

Vicki Divoll is a former general counsel of the Senate Select Committee on Intelligence and a former assistant general counsel for the CIA. She teaches U.S. government and constitutional development at the U.S. Naval Academy.


  • At 6:00 PM, Anonymous Gordon said…

    I continue to be amazed that so many people -- like this Times op-ed writer -- place so much emphasis on this particular terrorist's U.S. citizenship. He has voluntarily chosen both to (a) participate, in a senior leadership role, in an organized campaign of murder of innocent non-combatants; and (b) hide himself in a foreign country which has proved itself quite unable or unwilling to arrest/detain/bring to justice either him or any of the other al-Quaeda leadership within its borders.

    In these circumstances, why is it so difficult to conclude that al-Awalki has, by his own conduct, waived the constitutional protections to which an American citizen is ordinarily entitled? And why so much ado about his name being added to to a CIA "kill on sight" list that already contained many other names?

    As for your questions, Rick the Blogger: "Are we at war? Are there rules? Would this President believe that an enemy leader could be murdererd if found under anaesthetic in a hospital controlled by US forces? . . ." I assume that your legal background probably does not include a lot of experience with international law. So may I respectfully suggest that, if you have the time, you spend a couple of hours with a good introductory primer on the international law of armed conflict. Pay particular attention to the discussion on necessity and proportionality. This should answer your questions, and perhaps even alleviate some of your concern, from a strictly legal point of view at least.

    Of course, it is possible that you are a Quaker or a Mennonite or something similar, whose religious convictions rule out violence of any kind, even in self-defence. If so, I respect you -- but that is a very different kind of discussion.

  • At 10:54 PM, Blogger ricksahm said…

    Thank you for writing, Gordon. I read your Reply carefully.

    I am concerned that anyone, especially with the entire power of the government at his disposal, can unilaterally determine that someone is guilty, and can order his killing (or even his arrest). I did a lot of criminal law, early in my career, and I saw a number of people arrested who should not have been, charged when they should not have been, and over-charged. A police officer told me once that he had shot a burglar in the back, killing him after telling him he could walk away, because the cop "was just sick of dealing with him." We have now passed, so I understand, 200 condemned men who have been freed by DNA evidence.
    On a broader scale, if the Prez can condemn this man who he believes is engaged in war against the U.S., what will be the next case? We are already killing - and it is in our name that the drones are killing - numerous civilians "accidentally" because WE have determined that enemies in Afghanistan and Pakistan are within our gun sights - and we regret but don't care enough that our drones kill innocents. We - it is us, after all, once again - are comfortable with killing. I say "Stop." The "war on terror" will never end. We will kill whomever, and however many, WE wish to kill. I say "Stop."
    I will note that legalisms about war seem to me to be just that: legalisms, which have little to do with how decisions are actually made. History, as law, is written by and for the winners. I say that as someone who saw judicial decisions, in trial courts as well as appellate ones, routinely made in order to reach a result.
    My final issue is with your declaration that someone has waived his protections. Who judges that? I do not know what the man has done; you don't know; the President and his advisers do not know. They believe. To me, given what I have experienced and observed, I say that that is not sufficient.
    Your experience may be different from what has contributed to my opinion. Your training and learning may be greater than mine, and therefore justifiably bring you to a different - perhaps superior - opinion. I grant that I do not "know." What I write is what comes out of my life. I am often wrong, limited as I am in experience and knowledge - and brain power. I have considered what I have written in this blog - no thoughts have come onto the page unexamined. I recognize that I do not - ever - know enough to be certain. But I think certain accepted things, acts, decisions need to be challenged. Authority needs to be questioned, not acceded to simply because it IS authority. A President/king/despot/god decrees that someone is to be imprisoned, bull-whipped, killed - someone must, and ought, to ask "why, and by whose authority, and as a result of what evidence?" Nixon said that "if the President does it, it is not illegal." That was part of the authoritarian, non-legal landscape in which I came of age. That was not good enough for me. To my surprise, that kind of "reasoning" was accepted by many in our nation of "laws and not men." That seemed in conflict with how I had been taught our government was supposed to behave. Call me a dreamer. Call me wrong, if you wish.

  • At 11:32 PM, Blogger ricksahm said…

    Gordon, I intend to post the reply I wrote to yours. I appreciate that you wrote your Reply, which I take to be serious, well-grounded and well-reasoned - and respectfully written. I would like to post your Reply, because some of my readers receive my blog automatically and may never log on - and therefore may not have read your Reply (or mine to you). May I have your permission to post your Reply, exactly as you wrote it? It seems worthwhile to me for my readers to see both posts. It may promote discussion. (I hope so.)
    Thank you for your consideration.

  • At 2:35 PM, Anonymous Gordon said…

    You have my permission Rick the Blogger. I do not think you and I are really that dissimilar, its just that I have become discouraged and resigned to a lot of evil that you still rage against.


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