The Obama administration now claims the authority to kill American citizens without a trial, without notice, and without any chance for targets to legally object. The “targeted killing” program of George W. Bush’s administration has been radically expanded to include Americans far from any war zone. Director of National Intelligence Dennis Blair testified last year that the targeting-to-kill decision depends on “whether that American is involved in a group that is trying to attack us.” But that is a very vague standard, especially for use in capital punishment. And the list of officially designated terrorist groups has little or nothing to do with whether organizations actually pose significant danger to the United States.
The poster boy for the targeted-killing program is Anwar al-Awlaki, an American-born Muslim cleric who is reported to be in Yemen. The Obama administration touts allegations that Awlaki helped spark the slaughter at Ford Hood, Texas, that he inspired the attempt to destroy a jetliner on Christmas Day, and that he has done other dastardly things that the government has not yet disclosed (for our own good, of course). Awlaki might well be a four-star bastard, but government press releases and background briefings have not previously been sufficient to justify capital punishment.
The American Civil Liberties Union sued to compel the government “to disclose the legal standard it uses to place U.S. citizens on government kill lists.” The Obama administration responded by invoking the doctrine of state secrets, effectively claiming that national security demanded that its policies be kept hidden. By invoking the “state secrets” doctrine, the feds don’t even have to explain why the law doesn’t apply to their actions.
In oral arguments in federal court in November 2010, Justice Department attorney Douglas Letter asserted that no judge has legal authority to be “looking over the shoulder” of the Obama administration’s targeted-killing program. Letter declared that the program involves “the very core powers of the president as commander in chief.” When Obama campaigned for the presidency in 2008, entitling the president to kill Americans without a trial was not one of the reforms he promised. (A federal judge derailed the ACLU lawsuit.)
The main difference between the Bush administration and the Obama administration is that the Obama team publicly claims the authority to do what Bush’s lawyers claimed behind closed doors. Steven Bradbury, head of the Justice Department’s Office of Legal Counsel, told a closed session of the Senate Intelligence Committee in early 2006 that Bush could order killings of suspected terrorists within the United States. When Newsweek contacted the Justice Department to verify this novel legal doctrine, spokeswoman Tasia Scolinos stressed that Bradbury’s comments occurred during an “off-the-record briefing.” Newsweek’s revelation generated no media stir. Apparently, unless the government disclosed that it had actually begun assassinations within the United States, it was a nonstory. In an open Senate hearing later that year, Bradbury declared, “Under the law of war, the president is always right.” That legal/moral standard simplifies matters immensely, especially when the commander in chief is killing American citizens.
The Obama administration has been as power-hungry as the Bush team. A New York Times article late last year noted, “There is widespread agreement among the administration’s legal team that it is lawful for President Obama to authorize the killing of someone like Mr. Awlaki.” It is comforting to know that top political appointees concur that some “law” gives them the authority to kill Americans. But that is the same “legal” standard the Bush team used to justify torture. Since Bush’s lawyers told him that waterboarding wasn’t torture (despite a hundred years of U.S. court decisions to the contrary), the president was blameless.
There are other ominous parallels with the worst abuses of the Bush administration. When Bush decreed in November 2001 that he had the authority to perpetually detain anyone as an enemy combatant, solely on the basis of his own assertion, administration defenders rushed to assure the media that the new policy did not apply to Americans or inside the United States. Seven months later, after Jose Padilla was arrested in Chicago and labeled an enemy combatant, the administration acted as if only fools would believe the president would not use his boundless power any way he could.
Similarly, Obama’s power grab has not spurred much opposition, perhaps in part because it is assumed to apply only to killing Americans abroad (hopefully farther away than Niagara Falls, Canada). But the basis of the policy is that the entire world is a battlefield, and thus that the president has unlimited “commander in chief” powers everywhere.
Unfortunately, some of the suggested “reforms” for the targeted-killing program are as harebrained as the policy itself. A New York Times editorial piously declared, “Dealing out death requires additional oversight outside the administration. Particularly in the case of American citizens … the government needs to employ some due process before depriving someone of life.”
And what is the Times’s standard for sufficient “due process” before government hit squads snuff Americans? The feds should “establish a court like the Foreign Intelligence Surveillance Court, which authorizes wiretaps on foreign agents inside the United States.” The FISA court is one of the biggest farces in Washington. The court rubber-stamps more than 99 percent of all wiretap requests; the judges hear only the government’s side, since government targets are never permitted to dispute official assertions. And the FISA court completely failed to prevent the proliferation of other illegal wiretaps of Americans by the U.S. government. But the New York Times — which has done some of the best work exposing this power grab — apparently believes that a mere sham of oversight should be sufficient to sanctify government killing.
Blank checks for killing enemies of the state is the same recipe for domestic tranquility that most dictatorships have used throughout history. Unfortunately, it is a standard that many Americans might embrace. Consider the enthusiasm by some conservative commentators for the proposed assassination of WikiLeaks founder Julian Assange. If Assange were killed, it would only fuel demands for broader target lists of enemies.
The Obama administration’s position “would allow the executive unreviewable authority to target and kill any U.S. citizen it deems a suspect of terrorism anywhere,” according to Center for Constitutional Rights attorney Pardiss Kebriaei. But the feds have a long history of making false terrorism accusations. Bush declared in 2005 that “federal terrorism investigations have resulted in charges against more than 400 suspects, and more than half of those charged have been convicted.” But only 39 people were convicted on crimes tied to terrorism or national security between 2001 and 2005, as a Washington Post analysis found.
Obama’s doctrine of “targeted killing” of American citizens is at least as much an assassination of the Constitution as anything George W. Bush did. Yet, most of the media have ignored the issue or treated it like an arcane legal dispute of interest only to people in desert hideaways 6,000 miles away.
One consequence of the hubbub over whether Obama needs court permission to kill American citizens is that the notion that the U.S. government is entitled to kill foreigners on a whim is no longer even disputed. WikiLeaks and other sources have documented the killings of many innocent Iraqis, and other sources have confirmed that many of the Pakistanis killed by U.S. drones were hapless bystanders. Such fatalities are almost always ignored in Washington. Or, at most, they are treated as blunders, not crimes — mistakes that could make it more difficult for the U.S. government to extend its sway or achieve foreign-policy goals. That is the same mindset that permeated Washington from the mid 1960s onwards as the Pentagon relied on carpet-bombing in both South and North Vietnam. The Washington Post reported in 1965 that American pilots “are given a square marked on a map and told to hit every hamlet within the area. The pilots know that they sometimes are bombing women and children.” And policymakers could not be blamed for the deaths of the cartographically damned. Harvard historian Sahr Conway-Lanz, the author of Collateral Damage, noted, “The U.S. armed forces deemed large parcels of the South Vietnamese countryside to be ‘enemy base areas’ or ‘enemy supply areas.’… Within this territory … any building, vehicle, or person could be targeted.” U.S. bombing killed between one and two million civilians between 1965 and 1973.
Do Americans have any rights that the government is still obliged to respect? Perhaps the only right that Americans would still possess is the First Amendment’s forgotten right of petition. If the government tries to kill you and fails, you can write a letter complaining to your congressman. If the government succeeds, members of your family can write that letter. Except that protesting might get them added to the hit list.
This article originally appeared in the october 2011 edition of Freedom Daily. Subscribe to the print or email version of Freedom Daily.