November 23, 2010
More on Assassination
Andrew McCarthy has responded to Kevin Williamson's argument against President Obama's approval of assassinating al Qaeda figure and American citizen Anwar al-Awlaki, which I mentioned here. As he typically does, McCarthy makes a strong argument, but I think the sides in the dispute might be circling around the ground that might lead to accord.
One point that McCarthy makes is that the President is constrained by political balances:
Could a president abuse his powers? Of course. All power can be abused — including legislative and judicial power. But the basic check against that possibility is political, not legal. Mr. Williamson implausibly argues that "political limits" are inadequate against the president and must be supplemented by "legal limits." Courts, however, have no power to enforce their injunctions — for that, they must rely on the executive branch, and an executive branch that maintains a list of citizens it plans to assassinate will be unlikely to enforce injunctions against itself. By contrast, a president who really did the horrific things Mr. Williamson imagines President Obama doing would find his war authorization rescinded, his military and intelligence services defunded, and himself impeached. A president guilty of less heinous excesses might not be impeached, but he would find his popular support dramatically eroded. As Mr. Obama is finding, that has political consequences — among them electoral ones — that curtail the presidential capacity for malfeasance. This is the genius of the system.
Put aside the question of how explicitly and repeatedly a president would have to assassinate American citizens before the picture had become sufficiently clear for Congress to defund an entire military operation. McCarthy elides, in this paragraph, the relevant point: The degree to which American citizens insist that the executive branch treat assassination (especially of citizens) as a special case — requiring judicial oversight and Congressional input — factors into the political calculation that the President makes. That is, if a judge declines to bless a particular assassination order, the President may not have to listen, ultimately, but the political cost of doing so would add an exponent to the backlash against the order in the first place.
Politics also play in a tangential point of McCarthy's:
That's all the assassination authorization for Awlaki is: legal cover if circumstances arise under which killing him is the best military option. And here we arrive at the central absurdity in Mr. Williamson's argument. Though minimizing him, Mr. Williamson concedes Awlaki is a bad actor and has no objection to his being killed on the battlefield. Since Mr. Williamson doesn't see that as problematic, he can't fathom why our armed forces would want insurance — though it is they, not he, who would be hauled into court by Awlaki's family. But the authorization to assassinate Awlaki does not mean the administration would have him killed if it encountered him coming off a plane in Chicago, à la José Padilla — a U.S. citizen captured, not killed, by the Bush administration. Nor does it mean our forces would kill Awlaki if they could apprehend him in a foreign country under circumstances in which detention was the more practical option, à la U.S. citizen Yaser Hamdi and al-Qaeda bigwig Khalid Sheikh Mohammed.
As I've already suggested, assassinating U.S. citizens ought to be such a sticky matter that those who undertake it should have to think it so important as to risk legal repercussions. If a particular target justifies the decision's being made at the highest levels, then let the President seek the cover of Congressional or judicial approval.
Ultimately, the Williamson-McCarthy dispute comes down to what process must be followed to determine that an assassination is legitimate. One side believes there must be maximum oversight, and perhaps understanding that the process of gaining specific oversight would make the result politically untenable, the other side is content with the general oversight of politics writ large.
"ssassinating U.S. citizens ought to be such a sticky matter that those who undertake it should have to think it so important as to risk legal repercussions. If a particular target justifies the decision's being made at the highest levels, then let the President seek the cover of Congressional or judicial approval."
I feel the same way about torture. You should have to put your career on the line if you're 'that sure' about killing or torturing someone.
Posted by: mangeek at November 23, 2010 11:15 AMWhat's the difference between assassination and putting someone to death for treason? In the latter, they get a trial? Great, put the guy on trial, and if he doesn't show up, he loses by default, and his sentence is to be put to death by firing squad.
Posted by: Patrick at November 23, 2010 12:47 PMHe is a citizen and has certain rights. Among them is the right to a speedy trial. "Trial in abstentia", I don't konow if that is possible under American law.
Assassination by executive order seems like very slippery slope.
Posted by: Warrington Faust at November 23, 2010 1:20 PMWarrington-usually I just read your intellectual dissertations here.Often they make a great deal of sense.Obviously you're a lawyer.
Now,that being said(in an entirely friendly way),here it is:The a**hole opted out of our(citizen)club when he declared war on us.All we need to do now is dump him.
By publicly acting as the enemy in a war, Awlaki has renounced any rights of a citizen and is a legitimate target of warfare. To me, this ceased being a legal matter when he went to Yemen and began inciting violence against his former country.
Posted by: BobN at November 23, 2010 10:08 PMJoe, BobN, you make a point but I cannot lose sight of "what can be done, will be done".
Yes, I am a lawyer (in the sense that there are no ex-Marines, only dead Marines). However, I have never had reason to think much about criminal, or constitutional law. I have been witness to governmental actions, and I do not trust them. Observe the current "scanning" and "pat downs" when a little sensible "profiling" would make more sense. Who in the government is saying "no"? I note the government has exempted itself from "scanning" and "pat downs". No one who has had the opportunity to observe government should be surprised.
As I understand it, he has not renounced citizenship in any formal way. Stripping a citizen of the "right to life" by executive order is, I think, a very dangerous precedent.
Since President Ford's executive order barring assasination, I thought we had the British do our "wet work" for us.
Posted by: Warrington Faust at November 24, 2010 1:21 AMHis actions(Awlaki's) speak for him.
It may be time to get rid of Ford's order.
It's a different world.
We're not fighting the North Vietnamese Army anymore.
Joe Bernstein: "His actions(Awlaki's) speak for him."
Let's see where this might lead, if it became common. Let's say you bought a car, it was a lemon, it let you down time after time. In a fit of peek, you put it in the street, smashed the windshield and took the plate off it.
Your actions have spoken pretty loud.
Would you think it was no longer yours? How about if someone, based on what they could observe (probably the govenrment) towed the car away? Easy to say "good riddence", but if you had any investment in the car I don't think you would feel that way.
Let's say Awlaki defended himself against an assasination squad and killed several of them. Is that murder? Is there such a crime as "resistng assasination"?
Too bad he isn't a member of the military (or, is he?) things would be so much clearer.
Whitey Bulger has killed 9 people, why isn't there an "assasination order" on him? Perhaps, as so often happens, when he is found, he will "resist arrest".
Sorry to disagree Joe, but on the theory of "What can happen, will happen", I am reluctant to simply hand out executive powers. Look who is in the White House.
Posted by: Warrington Faust at November 24, 2010 4:48 PMAwlaki is an enemy combatant-a soldier by current definition.Thus a legitimate target.
Whitey Bulger never declared war on the US-he's just a multiple murderer.That is what the criminal justice system deals with.
Awlaki has to dealt with by a Hellfire missile.
Joe writes:
"Awlaki is an enemy combatant-a soldier by current definition.Thus a legitimate target.
Whitey Bulger never declared war on the US-he's just a multiple murderer.That is what the criminal justice system deals with."
assuming Awlaki is a "soldier", there is no need for an "assasination order". It is just warfare.
How about Tim McVeigh, did he declare war against the US, or just the government. Why didn't we just strip him of citizenship, and order an assasination?
I might give tacit approval to such activity, by not protesting it. But, I can not get behind making it a recognized function of the executive. "Slippery slope", etc, etc.
Awlaki has to dealt with by a Hellfire missile.
Hellfire "For those who care enough to send the very best".
Posted by: Warrington Faust at November 25, 2010 9:05 PMWarrington-I'm always amazed how we are willing to incinerate peons on the opposing side without a second thought,but when it comes to movers and shakers like Awlaki we get all judicious and careful-what bullcrap-I think our leaders are just scared that maybe that would put them personally in the crosshairs instead of some kid from Kansas or New Jersey.Can't ahve thaat now,can we?"Leaders"-what a crock!!
Joe, there may be something what you say about civilian "leaders".
One does not expect to see Generals cowering because they are a "primary target". "Soldiers are paid to die for what others believe".
At the same time, huge sums are expended to protect "leaders". Do they truly believe that they are "above the fray".I have never known anyone in the Secret Service, and may be more willing than I should be to accept the image portrayed in song and story. I wonder about any group so willing, if not eager, to "take the bullet".
Posted by: Warrington Faust at November 26, 2010 9:56 PM