The Claimed "War Exception" to the Constitution

Glen Greenwald has written an excellent piece on the assassination of US citizens by executive order.

Last week, I wrote about a revelation buried in a Washington Post article by Dana Priest which described how the Obama administration has adopted the Bush policy of targeting selected American citizens for assassination if they are deemed (by the Executive Branch) to be Terrorists.  As The Washington Times‘ Eli Lake reports, Adm. Dennis Blair was asked about this program at a Congressional hearing yesterday and he acknowledged its existence:

The U.S. intelligence community policy on killing American citizens who have joined al Qaeda requires first obtaining high-level government approval, a senior official disclosed to Congress on Wednesday.

Director of National Intelligence Dennis C. Blair said in each case a decision to use lethal force against a U.S. citizen must get special permission. . . .

He also said there are criteria that must be met to authorize the killing of a U.S. citizen that include "whether that American is involved in a group that is trying to attack us, whether that American is a threat to other Americans. Those are the factors involved."

Although Blair emphasized that it requires "special permission" before an American citizen can be placed on the assassination list, consider from whom that "permission" is obtained:  the President, or someone else under his authority within the Executive Branch.  There are no outside checks or limits at all on how these "factors" are weighed.  In last week’s post, I wrote about all the reasons why it’s so dangerous — as well as both legally and Consitutionally dubious — to allow the President to kill American citizens not on an active battlefield during combat, but while they are sleeping, sitting with their families in their home, walking on the street, etc.  That’s basically giving the President the power to impose death sentences on his own citizens without any charges or trial.  Who could possibly support that?

But even if you’re someone who does want the President to have the power to order American citizens killed without a trial by decreeing that they are Terrorists (and it’s worth remembering that if you advocate that power, it’s going to be vested in all Presidents, not just the ones who are as Nice, Good, Kind-Hearted and Trustworthy as Barack Obama), shouldn’t there at least be some judicial approval required?  Do we really want the President to be able to make this decision unilaterally and without outside checks?  Remember when many Democrats were horrified (or at least when they purported to be) at the idea that Bush was merely eavesdropping on American citizens without judicial approval?  Shouldn’t we be at least as concerned about the President’s being able to assassinate Americans without judicial oversight?  That seems much more Draconian to me.

It would be perverse in the extreme, but wouldn’t it be preferable to at least require the President to demonstrate to a court that probable cause exists to warrant the assassination of an American citizen before the President should be allowed to order it?  That would basically mean that courts would issue "assassination warrants" or "murder warrants" — a repugnant idea given that they’re tantamount to imposing the death sentence without a trial — but isn’t that minimal safeguard preferable to allowing the President unchecked authority to do it on his own, the very power he has now claimed for himself?  And if the Fifth Amendment’s explicit guarantee — that one shall not be deprived of life without due process — does not prohibit the U.S. Government from assassinating you without any process, what exactly does it prohibit?… [emphasis added]

Inserted from <Salon.com>

In my opinion, to allow either the President or the Courts the power to legally authorize assassination, even during time of war, is unconscionable.  If a US citizen has joined AQ, he should be tried in US courts.  If the government has sufficient knowledge of his whereabouts and activities to assassinate him, they also have sufficient knowledge to kidnap him and render him to the US for trial.  This policy must be abandoned and outlawed.  Have we forgotten that nobody is immune from assassination by the powerful?  Remember JFK, RFK and MLK.