Senate Republicans on Tuesday ruled out placing armed drone strikes under the authority of a special court, arguing the move would be a dangerous intrusion on presidential power.
Sen. Dianne Feinstein (D-Calif.) last week raised the idea of creating a new oversight court for drones that would be patterned after the checks and balances that govern surveillance.
But senior Republicans in the Senate dismissed that plan as unrealistic, and warned it would undermine critical counterterrorism efforts.
“I think it is a terrible idea,” Sen. Lindsey Graham (R-S.C.) told The Hill.
A new court would be “the biggest intrusion … in the history of [this] country” on the president’s authority as commander in chief, Graham said.
Except for a brief period in the 70’s the government has always had the power to legally kill you in cold blood and with premeditation and malice. It’s called the death penalty. Death is the ultimate sanction, but we reserve it for the most heinous of crimes. Because it is such a harsh penalty we make the government jump through all kinds of hoops before it can be used. We call those hoops “due process”.
The Fifth Amendment states:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
“No person shall be … deprived of life … without due process of law.” That’s pretty straightforward. (Notice that it says “person” and not “citizen”.)
Typically “due process” includes a criminal trial where the defendant is represented by an attorney and has the opportunity to contest the accusations against him in front of a judge and jury as well as a legal appeals process. These days a lot of people would agree that the law provides defendants with too much due process. (Those people have never been charged with a crime.)
But government agents can also kill you without due process in certain exigent circumstances – what we call “justifiable homicide”. This includes the use of deadly force in self-defense, overcoming resistance to a lawful arrest or to stop a fleeing felon. In order to be justified the killing must be both reasonable and necessary under the circumstances.
The determination of whether such a killing was reasonable is subject to review via criminal and civil legal proceedings. Believe it or not cops are occasionally prosecuted for shooting people and sometimes they are even convicted!
The final category of lawful killings is those made in wartime. But once again there is a legal process that is supposed to take place, beginning with Congressional approval of the use of force. During wartime only enemy combatants may be targeted for killing. The laws of war prohibit the intentional killing of civilians. We have never officially sanctioned the use of force against civilian leaders either.
But killing civilians may be deemed excusable if they are killed during an attack on a legitimate military target. This is what is referred to as “collateral damage”. During wartime collateral damage often exceeds military casualties. This is part of the reason that “making war” ostensibly requires congressional approval.
Generally speaking, “war” is a conflict between two or more governmental groups involving deadly force. They may be separate nations fighting each other or in the case of a civil war the groups may be vying for control of a single nation. Conflicts between a government and individuals or non-governmental groups are usually treated as criminal matters.
The “War on Terror” doesn’t quite fit into any recognized category. Our enemy is not a government. They do not wear uniforms. Our enemies are not of any particular nationality nor do they occupy any particular territory. They do not form a clearly defined organizational structure. There are numerous individuals and small groups operating under a loose umbrella.
Sometime back in the 80’s this Saudi Arabian guy named Osama bin Laden formed the shadowy group of radical Muslims that we now call “al-Qaeda”. It grew out of the mujahideen fighters in Afghanistan but it was a multi-national organization. Its basic purpose to was wage a holy war or “jihad” against non-Muslim nations. They were classified as terrorists.
They didn’t do much at first. After the Soviets pulled out of Afghanistan bin Laden returned to Saudi Arabia. When Saddam Hussein ordered the Iraqi invasion of Kuwait, bin Laden offered to use his mujahideen fighters to defend Saudi Arabia, but King Fahd got a better offer from George H. W. Bush.
This pissed of bin Laden, and he made such a stink that he was banished from his own country and had to flee to Sudan. He stayed there a few years and then moved back to Afghanistan where he joined forces with the Taliban, an fundamentalist Muslim Afghani group that eventually controlled most of the country. For a while bin Laden enjoyed almost quasi-legitimate status.
During the 90’s al-Qaeda became involved in various conflicts around the world and was responsible for several terrorist attacks against the United States, including the bombing of the USS Cole and the Khobar Towers. (Although Khalid Sheikh Mohammed masterminded the 1993 WTC bombing, he was not yet associated with al-Qaeda at that time.) The Clinton administration made several efforts to “get” bin Laden but they were unsuccessful.
Then came September 11th, 2001. Fifteen Saudis and four other radical Muslims hijacked some planes and turned them into guided missiles. All nineteen were members of bin Laden’s al-Qaeda.
The United States responded:
The Authorization for Use of Military Force  is a joint resolution passed by the United States Congress on September 14, 2001, authorizing the use of United States Armed Forces against those responsible for the attacks on September 11, 2001. The authorization granted the President the authority to use all “necessary and appropriate force” against those whom he determined “planned, authorized, committed or aided” the September 11th attacks, or who harbored said persons or groups. The AUMF was signed by President George W. Bush on September 18, 2001.
This is the legal authority for the War on Terror.
It is now 12 years later. Osama bin Laden is dead. his lieutenants are dead or in hiding. His organization was smashed. The Taliban no longer controls Afghanistan. The War on Terror continues.
On October 14, 2011, Barack Obama ordered a drone strike on Abdulrahman Anwar al-Awlaki, a sixteen year old U.S. citizen who was only 6 years old when the Twin Towers fell. His father (also a U.S. citizen) was assassinated two week earlier. When Abdulrahman Anwar al-Awlaki was killed he was seated in an outdoor restaurant in Yemen, far from any battlefield.
Barack Obama has asserted that he has the power to order targeted killings – otherwise known as “assassinations” – where there has been no legal due process nor exigent circumstances. Although the War on Terror is frequently cited to justify such killings, Obama apparently believes the AUMFOT does not limit his authority because that power is inherent in his role as commander in chief of our armed forces.
So how do we reconcile due process and assassination?
The core freedom most under attack by the War on Terror is the Fifth Amendment’s guarantee of due process. It provides that “no person shall be . . . deprived of life . . . without due process of law”. Like putting people in cages for life on island prisons with no trial, claiming that the president has the right to assassinate US citizens far from any battlefield without any charges or trial is the supreme evisceration of this right.
The memo pays lip service to the right it is destroying: “Under the traditional due process balancing analysis . . . . we recognize that there is no private interest more weighty than a person’s interest in his life.” But it nonetheless argues that a “balancing test” is necessary to determine the extent of the process that is due before the president can deprive someone of their life, and further argues that, as the New York Times put it when this theory was first unveiled: “while the Fifth Amendment’s guarantee of due process applied, it could be satisfied by internal deliberations in the executive branch.”
For the sake of argument I will stipulate that there are circumstances when the premeditated, cold-blooded killing of a person (citizen or not) without the usual due process of law could be justified. Osama bin Laden is probably the best example.
What do you do with a serial killer who is living somewhere beyond the reach of the law? Once again for the sake of argument let’s stipulate that bin Laden was in fact guilty of numerous crimes including the 9-11 attacks. There was a warrant for his arrest. He was placed on the FBI’s “most wanted” list even before 9-11 and there was a large outstanding reward offered for information leading to his capture. We even invaded Afghanistan to look for him. All to no avail.
The Clinton administration came up with the concept of “extraordinary rendition”. Ideally, if a wanted criminal is located in another country we simply ask that country to arrest him and turn him over to us. This is called extradition and is governed by treaties.
But some countries won’t cooperate. The original idea behind extraordinary rendition was to send agents into foreign countries to kidnap/arrest wanted terrorists and bring them back to the United States for prosecution. (The Bush administration added the wrinkle of taking the suspects to places outside of the U.S. where they could be tortured.)
Using the original concept, Osama bin Laden could have been kidnapped from Pakistan and brought back to face murder charges. Had that happened (and assuming he was found guilty and sentenced to death) we then could have executed bin Laden. The fact that he was captured in Pakistan and brought here against his will would not provide a defense to the charges. Once he was on U.S. soil the circumstances of his arrival would not be a legal issue. At best it would be a diplomatic issue between the two nations.
But that’s not what happened. So there was Osama bin Hidin’ hanging out in a compound in Abbottabad. He was wanted for his previous crimes but he was not believed to be actively involved in al Qaida’s operations. (That was probably the deal he made with Pakistan – they would let him hide out there as long as he retired from blowing shit up.) So there is no exigency – he was no longer an immediate threat.
We sent SEAL Team Six in to get him. Supposedly they were gonna try to arrest him but when he resisted they shot him. But the question is would we have been justified in killing him whether he resisted or not? The method is irrelevant – we could have had a sniper shoot him, sent a missile to blow his ass up or had someone poison his tea. Would the killing be legally justified?
I believe so under some circumstances.
If bin Laden had surrendered he would be entitled to due process. We would have given him a fair trial and then a fair hanging. But nobody raised much of a stink over the fact that he was shot. Under the circumstances nobody was gonna question to closely the necessity of shooting him even if they had shot him in his sleep.
But what if the SEALs couldn’t get into his house? What if the best they could do was get a sniper in position? We’re assuming here that we have good information that he’s in there. No question, it’s Osama and he’s there. Can we legally tell the sniper to shoot him?
The answer seems pretty obvious in Osama’s case. Bang-bang, Osama bin Bye-Bye.
But what about Anwar al-Awlaki and/or his son Abdulrahman Anwar al-Awlaki? What does a person have to do to make it on the kill list? How do we distinguish the yeses from the noes? More importantly, how do we keep this power from being abused?
That is what due process is for. So what would this assassination due process look like?
First of all, we need to publish a list of offenses that could put you on the list. Those offenses should all be ones punishable by death, but not all of them. If we’re gonna go killing people in foreign countries they should be more than just garden-variety murderers.
In criminal law you cannot execute someone for attempted murder or conspiracy to commit murder. Merely talking about murder is not even a crime. Somewhere between talking and attempting is planning. None of those deserve death. So in order to make the death list the person should have already committed at least one murder.
For obvious reasons the process will be ex parte. But this is not without precedent. The issuance of search warrants is done ex parte. To get a search warrant the cops must request one from a judge and show probable cause. That probable cause consists of evidence. (I would hope that one would need more than probable cause to bust a cap in someone’s ass.)
Let me stop here for a second and discuss the topic of national security. Much of the evidence we gather against terrorists is gonna be classified. But that’s a red herring. We can try spies without compromising state secrets. However the process by which we authorize assassination will probably not be fully open to the public.
Imagine a special 3-judge panel to review assassination requests. The administration gathers it’s evidence and presents it to the panel. The judges all have top security clearances. They review the evidence and where appropriate ask questions. Then they make a finding.
I would want that finding to state that the judges agreed that there was clear and convincing evidence that the person targeted was actively involved in the commission of one or more specific death penalty offenses, that an arrest warrant had previously been issued and publicly announced, and that the person was a fugitive from justice living outside of any nation or territory with an extradition treaty with the United States.
In other words, the administration would have to convince the panel that the target was a very bad person and no other reasonable means of dealing with them existed.
If the panel made those finding they would then issue a “writ of outlawry“:
In historical legal systems, an outlaw is declared as outside the protection of the law. In pre-modern societies, this takes the burden of active prosecution of a criminal from the authorities. Instead, the criminal is withdrawn all legal protection, so that anyone is legally empowered to persecute or kill them. Outlawry was thus one of the harshest penalties in the legal system. In early Germanic law, the death penalty is conspicuously absent, and outlawing is the most extreme punishment, presumably amounting to a death sentence in practice.
Such writs would be extremely rare. I would require that the government publicly post them at least 30 days prior to taking any action. The target would then have the opportunity to turn themselves in and face prosecution. After that it’s open season.
Would that be a perfect system? Hell no! But it would certainly be better than what we have now (secrecy, no review or accountability, no due process at all).
Sorry about rambling on. I woke up with a cold so I drank a bunch of cough syrup. Then I wrote this in one long stream of semi-consciousness. If it doesn’t make any sense blame it on the Vicks 44.
I’m going back to bed.