– Herbert W. Titus and William J. Olson
Exercising a power that no prior president ever thought he possessed — a power that no prior president is known to have exercised — President Obama admitted that he ordered the execution of American citizens, not on a battlefield, based on his belief that they were involved in terrorist activities. It is known that at least three U.S. citizens, including a 16-year old boy, were killed on the president’s order in drone strikes in Yemen in 2011.
As the worldwide drone program ramps up, there have been increasing calls for the president to reveal the basis for his claimed authority. Only a few weeks ago, U.S. District Court Judge Colleen McMahon denied both the ACLU’s and New York Times‘ requests under the Freedom of Information Act to obtain any and all legal documents prepared in support of the president’s claim of unilateral powers. While Judge McMahon was concerned that the documents “implicate serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States, and about whether we are indeed a nation of laws not of men,” she felt constrained by precedent to withhold them. Now, a bipartisan group of 11 senators has written a letter to president Obama asking for “any and all legal opinions” that describe the basis for his claimed authority to “deliberately kill American citizens.”
However, not until the Senate began gathering information for hearings on John Brennan’s confirmation as CIA director, to begin February 7, has public attention finally been focused on this remarkable presidential usurpation of power.
On the night of February 4, the walls of secrecy were breached when NBC News released a leaked U.S. Justice Department White Paper entitled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa’ida or An Associated Force.” Now we can see why the Department of Justice has been so reluctant to share the basis for its legal analysis. It is deeply flawed — based on a perverse view of the Fifth Amendment Due Process Clause. Additionally, the white paper completely ignores the procedural protections expressly provided in the Constitution’s Third Article — those specifically designed to prohibit the president from serving as prosecutor, judge, jury, and executioner.
The white paper does not seek to delimit the federal power to kill citizens, but simply sets out a category of “targeted killing” of American citizens off the battlefield on foreign soil which it deems to be clearly authorized. Moreover, this power is not vested exclusively in the president, or even the secretary of defense, or even officials within the Department of Defense — rather, it can be relied on by other senior officials of unspecified rank elsewhere in government.
According to the white paper, there are only three requirements to order a killing. First, “an informed high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States.” Second, capture is “infeasible.” And third, the ” operation would be conducted in a manner consistent with the applicable law of war principles.” Indeed, from the white paper, it is not clear why killings of U.S. citizens on American soil would be judged by a different standard.
Mimicking a judicial opinion, the White Paper employs pragmatic tests developed by the courts to supplant the plain meaning of the Fifth Amendment Due Process and Fourth Amendment Search and Seizure texts. Balancing away the constitutionally protected interests of the citizen in life, liberty, and property against the more important “‘realities’ of the conflict and the weight of the government’s interest in protecting its citizens from an imminent attack,” the Justice Department lawyers have produced a document worthy of the King Council’s Court of Star Chamber — concluding that the U.S. Constitution would not require the government to provide notice of charges, or a right to be heard, “before using lethal force” on a U.S. citizen suspected of terrorist activity against his country. How very convenient. The Obama administration lawyers appear to have forgotten that the Star Chamber was abolished by the English Parliament in 1641 in order to restore the rule of law adjudicated by an independent judiciary, terminating the rule of men administered by the king’s courtiers.
For more of the article go to: http://www.westernjournalism.com/assassin-in-chief/