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Thu Feb 7, 2013, 09:21 AM

5 Practical Ideas To Rein In The Presidential Power To Kill Americans

First, the ACLU statement on release of the legal basis.

Obama to Give DOJ Targeted Killing Memo to Congressional Intel Committees

WASHINGTON – President Obama has reportedly ordered the Justice Department to give the House and Senate intelligence committees the secret legal opinion justifying the extrajudicial killing of American citizens suspected of being a threat to the United States.

“While this is a small step in the right direction, democratic transparency requires President Obama to make the full memo available to the public. The United States is not a nation of secret laws, and a memo authorizing the killing of American citizens is too important to keep from the American people,” ACLU Senior Legislative Counsel Christopher Anders said. “Everyone – not just select members of Congress – has a right to know when the government believes it can kill American citizens. This concession has taken far too long and falls far short of President Obama's commitment to transparency he pledged to abide by since becoming president.”

http://www.aclu.org/national-security/obama-give-doj-targeted-killing-memo-congressional-intel-committees


5 Practical Ideas To Rein In The Presidential Power To Kill Americans

By Ian Millhiser and Zack Beauchamp

<...>

The Constitution provides that no person may be “deprived of life, liberty, or property, without due process of law,” but it gives no further guidance on exactly how much or what kind of process is “due” to a U.S. citizen who becomes a senior leader of our enemies. Normally, Americans look to the judiciary to provide procedural rights, but federal judges are ill-suited for the kind of swift decision within a narrow window of opportunity that is required in this context. The only circumstances in which the targeted killing of a U.S. citizen could ever hypothetically be justified are ones where the citizen is directly engaging in hostilities against the United States — and there’s a reason judges don’t review generals’ targeting decisions before they’re made. Judges specialize in thoughtful, languid decision-making of the kind that often takes months to consider all arguments on both sides of a dispute....But if judicial pre-approval of military orders isn’t a realistic means of regulating targeted killings, DOJ’s framework calls for the other extreme — leaving the decision to kill a senior enemy combatant in the hands of “high-level” executive branch officials who are ultimately responsible to the President. This framework ensures both that decisions can be made swiftly and by officials with a broad understanding of both the details of a particular operation and of the laws governing war. But it also means that there is little external check on an executive branch eager to use its power irresponsibly. And even if you trust President Obama to not abuse a power to order targeted killings, there is no guarantee that the next president can also be trusted.

Between the two extremes, DOJ is probably right as a matter of law that the administration can act without independent oversight. Regardless of the wisdom of the broadly worded Authorization for Use of Military Force against Al-Qaeda and related terrorist forces, the AUMF is a duly-enacted Act of Congress, and the President’s wartime power is at its apex when he acts “pursuant to an express or implied authorization of Congress.”

But the current state of affairs is dangerous at best, and it does not have to be the only way. Since at least as far back as the Supreme Court’s 1804 decision in Little v. Barreme, Congress has had the power to prevent the president from waging war in certain ways. Without endorsing any particular proposal, here are five ways Congress could step into the breach:

  • Public Disclosure The first and simplest corrective is greater public oversight. An impartial, independently supported reviewer or review panel could be given full access to classified information, and then convey its opinion on the facts and justification of any strike, and the general Administration procedure, to the American public. The United Kingdom pioneered this model as a means of providing oversight for expanded police powers during the conflict with the Irish Republican Army in Northern Ireland, with some success. However, this procedure could at best only provide the public with more information about any individual strike after it happened rather than formally restrain any abuse of power by the President — and its record on the latter score in Northern Ireland is hardly spotless.

  • Mandatory Consultation: Congress could also require a formalized, publicly understood executive or executive-legislative review process. This legislation would require consultation with and approval from some group (the National Security Council, the Cabinet, or a group of legislators) for any strike targeting American citizens, telling the public who, exactly, was making life-and-death decisions. There appears to already be something like this in place — according to Sen. Dianne Feinstein, the white paper released Monday night was a summary of the executive decision process for Congress’ consumption. However, until this procedure is public, there’s no guarantee that it provides real oversight. And even then, it’d be hard to know — as scholar Daniel Byman notes, Israel has a well-known consultation procedure for targeted killing, but one that’s bedeviled by controversy in part because there’s little independent legal oversight outside of the government itself.

  • Special Courts: Byman recommends a third option on top of formalized executive and Congressional review: a special independent court, with members appointed by the Supreme Court, that would approve or deny requests to conduct targeted killing. The model here is the Foreign Intelligence Surveillance Act (FISA) courts that approve the wiretapping of individuals suspect of being foreign agents. This has the virtue of providing legal oversight, but abuse of the FISA system that began under the Bush Administration and continues under Obama proves they’re not necessarily strong checks. There’s also something deeply troubling about creating a judicial system designed explicitly to authorize the use of military force against American citizens.

  • Lawsuits After-The-Fact: Congress could reform the byzantine laws surrounding state secrets to allow currently-existing courts to review the legality of any targeted killing after the fact. Currently, a legal thicket that one judge called a “catch-22″ allows the administration to legally hide its justification for striking American citizens, and has threatened to shoot down lawsuits that challenge this power using the “State Secrets” doctrine if they might expose “classified information.” Were Congress to reform the relevant laws, paving the way for lawsuits challenging the legality of a targeted killing after the fact, that might allow courts to set reasonable limitations on the practice by establishing clear precedents about the conditions under which a strike was justified. Of course, the courts could only review a strike after the fact, which means that in the event of a wrongful killing, the American citizen in question would still be dead.

  • An Outright Ban: Finally, Congress could simply ban the premeditated, targeted killing of American citizens. This law would allow for killing if either 1) troops attempting to apprehend the citizen are engaged by hostile forces or 2) if said citizen was part of a conventional military force actively engaged in combat with American forces rather than a terrorist organization. But if the government is right that sometimes, the only way to eliminate serious terrorist threats posed by citizens is a targeted killing, this could come at a serious cost in American lives.
- more -

http://thinkprogress.org/justice/2013/02/06/1541261/dojs-targeted-killing-document-is-probably-right-about-the-law-and-thats-a-serious-problem/

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Response to ProSense (Original post)

Thu Feb 7, 2013, 09:30 AM

1. I'll add a 6th - Sustained, intense public criticism of this unconstitutional policy. Keep it up!

Shame Obama and the Intel bureaucrats into reform.

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Response to leveymg (Reply #1)

Thu Feb 7, 2013, 09:48 AM

3. The question is

"Shame Obama and the Intel bureaucrats into reform."

...what kind of reform? The OP has five options.

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Response to ProSense (Reply #3)

Thu Feb 7, 2013, 10:08 AM

4. Executive Order immediately, followed by a legislative ban would be best.

Strange that the article doesn't mention the most obvious and quickest way to change the policy - an EO by Obama to supersede the one that created this mess.

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Response to leveymg (Reply #4)

Thu Feb 7, 2013, 10:20 AM

9. Remember that Obama is Situationally Powerless

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Response to bobduca (Reply #9)

Thu Feb 7, 2013, 10:27 AM

11. Only voluntarily.

I'll agree: Obama is Voluntarily Situationally Powerless. That's almost as good as Haldeman's Limited Modified Hangout.

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Response to leveymg (Reply #11)

Thu Feb 7, 2013, 10:32 AM

12. Yes its definitely intentional

I agree that Voluntarily Situationally Powerless is even more apt.

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Response to bobduca (Reply #12)

Thu Feb 7, 2013, 10:41 AM

13. Feigned Learned Helplessness is another way to phrase it.

FLH is the acronym. We should have been social scientists or government managers. They love this stuff.

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Response to leveymg (Reply #4)

Thu Feb 7, 2013, 10:43 AM

14. What would

"an EO by Obama to supersede the one that created this mess."

...the Executive Order be?

You're not stating a policy. Like I said, the issue is going to have to be addressed: http://www.democraticunderground.com/?com=view_post&forum=1002&pid=2328278

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Response to ProSense (Reply #3)

Thu Feb 7, 2013, 10:10 AM

5. Your (or, more properly, Milheiser's and Beauchamp's) 5 options seriously beg

 

the question, since they already presume that the American so targeted has indeed "taken up arms" against the United States. The entire point of due process and of an adversarial system is that only through the workings of those is the 'guilt' or 'innocence' of anyone, whether U.S. citizen or otherwise, determined. Here's one way to stop the killing of innocent people by drones . . . stop ordering drone attacks. Q.E.D.

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Response to coalition_unwilling (Reply #5)

Thu Feb 7, 2013, 10:15 AM

7. Ignoring the fact

"American so targeted has indeed "taken up arms" against the United States. The entire point of due process and of an adversarial system is that only through the workings of those is the 'guilt' or 'innocence' of anyone, whether U.S. citizen or otherwise, determined. Here's one way to stop the killing of innocent people by drones . . . stop ordering drone attacks. Q.E.D."

...that the Constitution affords the President to act accordingly, is not going to make the issue go away.

From the Center for Constitutional Rights (arguing against targeted killings, but citing the exceptions) :

<...>

Under the Constitution and international law, individuals must be afforded due process and convicted for a capital crime before they may be executed by the state. In extremely narrow circumstances, judicial process is not required if an individual poses an imminent threat of death or serious physical harm to others, and lethal force is a last resort to address the threat. A targeted killing policy in which names are added to kill lists after a bureaucratic process and remain on the lists for months is clearly not limited to addressing imminent threats or using lethal force as a last resort, and goes far beyond what the law permits. By substituting its own bureaucratic process for the due process required by the Constitution and international law, the executive is assuming the role of judge, jury, and executioner.

<...>

The executive process for authorizing these killings also plainly violates the legal requirements for the use of lethal force by the state. Outside of armed conflict, where the Constitution and peace-time international law apply, the United States can only take an individual’s life, no less the life of a U.S. citizen, after trial and conviction. The only exception to the rule is where the individual poses a grave threat of such imminence that judicial process is infeasible and lethal force is the only option that could reasonably address the threat. That individuals are added to kill lists after a bureaucratic process and left on the lists for months at a time flies in the face of the requirement that killing must be a last resort to address an imminent threat that leaves no time for process or deliberation.

http://ccrjustice.org/learn-more/faqs/kill-lists


Senator Wyden:

As I and ten other senators told the President yesterday, if individual Americans choose to take up arms against the United States, there will clearly be some circumstances in which the President has the authority to use lethal force against those Americans, just as President Lincoln had the authority to use force against the Confederate Army during the Civil War. At the same time, it is vitally important for Congress and the American public to have a full understanding of how the executive branch interprets this authority, so that Congress and the public can decide whether the President’s power to deliberately kill American citizens is subject to appropriate limitations and safeguards. Every American has the right to know when their government believes that it is allowed to kill them.


The Constitution does grant the President the authority to use lethal force against citizens who take up arms against the United States in armed conflict and in situations where the individual, as the CCR noted, "poses a grave threat of such imminence that judicial process is infeasible and lethal force is the only option."

The point is what that policy should look like.

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Response to ProSense (Reply #7)

Thu Feb 7, 2013, 10:19 AM

8. Ah, but there's the rub. Who decides who has taken up arms against the U.S.? That's what

 

an adversarial process should determine, not an unchecked executive branch offing people merely because some unnamed bureaucrat within the Executive Branch alleges that so-and-so is 'aligned' with Al Quaida (language of the current white paper Isikoff published).

ETA: Show me one iota of judicial review in this policy and I will gladly retract my criticism of it and of Obama.

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Response to coalition_unwilling (Reply #8)

Thu Feb 7, 2013, 10:23 AM

10. The options

"Ah, but there's the rub. Who decides who has taken up arms against the U.S.? That's what an adversarial process should determine, not an unchecked executive branch offing people merely because some unnamed bureaucrat within the Executive Branch alleges that so-and-so is 'aligned' with Al Quaida (language of the current white paper Isikoff published)."

...are in opposition to "unchecked executive branch offing people."

You're arguing using the current policy. Address the options, which mention an adversarial process.


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Response to ProSense (Original post)

Thu Feb 7, 2013, 09:31 AM

2. How about mandatory expatriation for anyone who takes up arms against the United States?

Or anyone who is a member of a known terrorist organisation?

That would seem to solve the whole "omg targeting Americans!" issue.

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Response to Spider Jerusalem (Reply #2)

Thu Feb 7, 2013, 10:11 AM

6. That was debated and rejected by the Framers. Your idea would have been RW in the 18th Century.

There's a good reason there's a bar to exile. The Confederacy could have legally exiled itself in 1860.

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Response to ProSense (Original post)

Thu Feb 7, 2013, 02:11 PM

15. Kick! n/t

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Response to ProSense (Original post)

Thu Feb 7, 2013, 02:19 PM

16. Hold a trial in absentia for the accused. A public, open, trial, complete with a defense team.

Then let a jury decide if the accused is to executed.

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Response to ProSense (Original post)

Thu Feb 7, 2013, 09:06 PM

17. Kick! n/t

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