On the Claimed 'War Exception' to the Constitution

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 https://www.washingtontimes.com/news/2010/feb/04/permission-need

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:

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. . . .

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 Preisdent, 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.

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?
Noting Scott Brown's campaign to deny accused Terrorists access to lawyers and a real trial, Adam Serwer wrote:

is the new normal for Republicans: You can be denied rights not through
due process of law but merely based on the nature of the crime you are suspected of committing.

absolutely true, but that also perfectly describes this assassination
program -- as well as a whole host of other now-Democratic policies,
from indefinite detention to denial of civilian trials.

* * * * *

severe dangers of vesting assassination powers in the President are so
glaring that even GOP Rep. Pete Hoekstra is able to see them (at least
he is now that there's a Democratic President). At yesterday's
hearing, Hoekstra asked Adm. Blair about the threat that the President
might order Americans killed due to their Constitutionally protected
political speech rather than because they were actually engaged in
Terrorism. This concern is not an abstract one. The current
controversy has been triggered by the Obama administration's attempt to
kill U.S. citizen Anwar al-Awlaki in Yemen. But al-Awalki has not been
accused (let alone convicted) of trying to attack Americans. Instead,
he's accused of being a so-called "radical cleric" who supports Al
Qeada and now provides "encouragement" to others to engage in attacks
-- a charge al-Awalki's familyvehemently denies (al-Awalki himself is in hiding due to fear that his own Government will assassinate him).

question of where First Amendment-protected radical advocacy ends and
criminality begins is exactly the sort of question with which courts
have long grappled. In the 1969 case of Brandenburg v. Ohio,
the Supreme Court unanimously reversed a criminal conviction of a
Ku Klux Klan leader who -- surrounded by hooded indivduals holding
weapons -- gave a speech threatening "revengeance" against any
government official who "continues to suppress the white, Caucasian
race." The Court held that the First Amendment protects advocacy of
violence and revolution, and that the State is barred from punishing
citizens for the expression of such views. The Brandenberg
Court pointed to a long history of precedent protecting the First
Amendment rights of Communists to call for revolution -- even violent
revolution -- inside the U.S., and explained that the Government can
punish someone for violent actions but not for speech that merely advocates or justifies violence (emphasis added):

As we [395 U.S. 444, 448] said in Noto v. United States, 367 U.S. 290, 297 -298 (1961), "the
mere abstract teaching . . . of the moral propriety or even moral
necessity for a resort to force and violence, is not the same as
preparing a group for violent action and steeling it to such action.
See also Herndon v. Lowry, 301 U.S. 242, 259 -261 (1937); Bond v.
Floyd, 385 U.S. 116, 134 (1966). A statute which fails to draw this
distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.

all appearances, al-Awalki seems to believe that violence by Muslims
against the U.S. is justified in retaliation for the violence the U.S.
has long brought (and continues to bring) to the Muslim world. But as
an American citizen, he has the absolute Constitutional right to
express those views and not be punished for them (let alone killed) no
matter where he is in the world; it's far from clear that he has
transgressed the advocacy line into violent action. Obviously, there
are those who justify such assassination powers on the ground that
radical Islam is a grave threat, but that is what is always said to
justify Constitutional abrigements (it was obviously said of Communists
and war critics during World War I). Indeed, in light of episodes like
the Timothy McVeigh bombing and the various attacks on abortion
clinics, shouldn't those who want the President to be able to
assassinate American "radical clerics" without a trial also support
the President's targeting of Americans who advocate extremism or
violence from a far right or extremist Christian perspective? What's
the principle that allows one but not the other?

response to these concerns, Admiral Blair said yesterday: "We don't
target people for free speech. We target them for taking action that
threatens Americans or has resulted in it." But the U.S. Government --
like all governments -- has a long history of viewing "free speech" as
a violent threat or even Terrorism. That's why this is exactly the
type of question that is typically -- and is intended to be -- resolved
by courts, according the citizen due process, not by
the President acting alone. That's especially true if the death
penalty is to be imposed.

But Obama's presidential
assassination policy completely short-circuits that process. It
literally makes Barack Obama the judge, jury and executioner even of
American citizens. Beyond its specific application, it is yet another
step -- a rather major one -- towards abandoning our basic system of
checks and balances in the name of Terrorism and War.

* * * * *

That last point is the most important one here. Atrios wrote
the other day that a central prong in the Washington consensus is that
"all it takes to nullify the constitution is to call someone a
terraist." That's absolutely true, but a close corollary is that
merely uttering the word "war" justifies the same thing. That's
particularly dangerous given that, by all accounts, this is a
so-called "war" that will not end for a generation, if ever. To
justify the abridgment or even suspension of the Constitution on the
ground of "war" is to advocate serious alterations to our
Constitutional framework that are more or less permanent. Several
points about that "war" excuse:

First, there's no "war exception" in the Constitution. Even with real wars -- i.e.,
those involving combat between opposing armies -- the Constitution
actually continues to constrain what government officials can do, most
stringently as it concerns U.S. citizens. Second,
strictly speaking, we're not really "at war," as Congress has merely
authorized the use of military force but has not formally or
Constitutionally declared war. Even the Bush administration conceded
that this is a vital difference when it comes to legal rights. In
2006, the Bush DOJ insisted
that the wartime provision of FISA -- allowing the Government to
eavesdrop for up to 15 days without a warrant -- didn't apply because
Congress only enacted an AUMF, not a declaration of war (click image to enlarge):

Bush DOJ went on to explain that declarations of war trigger a whole
variety of legal effects (such as terminating diplomatic relations and
abrogating or suspending treaty obligations) which AUMFs do not
trigger (see p. 27). To authorize military force is not to declare
war. Finally, the U.S. is fighting numerous
undeclared wars, including ones involving military action: given that
our "War on Drugs" continues to rage, should the U.S. Government be
able to target accused "drug kingpins" for assassination without a
trial, the way we attempted to do in Afghanistan?
After all, Terrorists blow up airplanes but Drug Kingpins kill our
kids!!! The mindset that cheers for unlimited Presidential powers in
the name of "war" invariably leads to exactly these sorts of expansions.

beyond the specific injustices of assassinating Americans without
trials, the real significance, the real danger, is that we continue to
be frightened into radically altering our system of government. In Slate yesterday, Dahlia Lithwick encapsulated this problem perfectly; her whole article should be read, but this excerpt is superb:

has slid back again into its own special brand of terrorism-derangement
syndrome. Each time this condition recurs, it presents with more acute
and puzzling symptoms. . . .

Moreover, each time Republicans
go to their terrorism crazy-place, they go just a little bit farther
than they did the last time, so that things that made us feel safe last
year make us feel vulnerable today. . . . In short, what was once tough
on terror is now soft on terror. And each time the Republicans move
their own crazy-place goal posts, the Obama administration moves right
along with them. . . .

We're terrified when a terror attack
happens, and we're also terrified when it's thwarted. We're terrified
when we give terrorists trials, and we're terrified when we warehouse
them at Guantanamo without trials. If a terrorist cooperates without
being tortured we complain about how much more he would have cooperated
if he hadn't been read his rights. No matter how tough we've been on terror, we will never feel safe enough to ask for fewer safeguards. . . .

here's the paradox: It's not a terrorist's time bomb that's ticking.
It's us. Since 9/11, we have become ever more willing to suspend basic
protections and more contemptuous of American traditions and
institutions. The failed Christmas bombing and its political aftermath
have revealed that the terrorists have changed very little in the
eight-plus years since the World Trade Center fell. What's changing --
what's slowly ticking its way down to zero -- is our own certainty that
we can never be safe enough and our own confidence in the rule of law.

descent has certainly not reversed itself -- it has not really even
slowed -- with the election of a President who repeatedly vowed to
reject this mentality. Just consider what Al Gore said in his truly
excellent 2006 speech decrying the "Constitutional crisis" under the Bush presdiency:

Can it be true that any president really has such powers under our Constitution?

the answer is yes, then under the theory by which these acts are
committed, are there any acts that can on their face be prohibited?

the president has the inherent authority to eavesdrop on American
citizens without a warrant, imprison American citizens on his own
declaration, kidnap and torture, then what can't he do?

we are, almost four years later with a new party in power, and
the President's top intelligence official announces -- without any real
controversy -- that the President claims the power to assassinate
American citizens with no charges, no trials, no judicial oversight of
any kind. The claimed power isn't "inherent" -- it's based on alleged
Congressional approval -- but it's safeguard-free and due-process-free
just the same. As Gore asked of less severe policies in 2006, if the
President can do that, "then what can't he do?" As
long as we stay petrified of the Terrorists and wholly submissive
whenever the word "war" is uttered, the answer will continue to
be: "nothing." We'll have Presidents now and then who are marginally
more restrained than others -- as the current President is marginally
more restrained than the prior one -- but what Lithwick calls our
"willingness to suspend basic protections and become more contemptuous
of American traditions and institutions" will continue unabated.

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