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The actual legal reasoning the Department of Justice used to kill an American? It is a secret.

Months ago, the Obama Administration revealed that it would target al-Awlaki. It even managed to wriggle out of a lawsuit filed by his father to prevent the assassination. But the actual legal reasoning the Department of Justice used to authorize the strike? It’s secret. Classified. Information that the public isn’t permitted to read, mull over, or challenge.

Why? What justification can there be for President Obama and his lawyers to keep secret what they’re asserting is a matter of sound law? This isn’t a military secret. It isn’t an instance of protecting CIA field assets, or shielding a domestic vulnerability to terrorism from public view. This is an analysis of the power that the Constitution and Congress’ post September 11 authorization of military force gives the executive branch. This is a president exploiting official secrecy so that he can claim legal justification for his actions without having to expose his specific reasoning to scrutiny. As the Post put it, “The administration officials refused to disclose the exact legal analysis used to authorize targeting Aulaqi, or how they considered any Fifth Amendment right to due process.”

The rest Here.

 

Many see this as killing a bad guy and so who cares. But “who cares?” denies basic rule-of-law. Either the constitution matters or it doesn’t. We assume ALL criminals are bad guys. They still get a fair trial by a jury of their peers.

No matter where their criminal acts occur, we give them a fair trial. al-Awlaki could have been tried in-absentia and sentenced to death and this wouldn’t be an issue. He wasn’t killed on an actual battlefield or anywhere near one.

Since we don’t even have the faintest idea as to the legal reasoning behind this decision, it is a classified secret, we don’t know if this same “reasoning” could be used to justify killing an American citizen in Britain or even Cleveland. We also don’t know if it means American citizens can be killed by executive fiat for alleged crimes like rape, grand theft or shop lifting in foreign nations or again right here at home. What is the legal logic? It’s a secret.

In fact, given what we think we know concerning al-Awlaki, did he commit a death penalty offense assuming he were tried and convicted right here in the US? What exactly was he accused of? Was he a bad guy? Undeniably. What sets him apart from a thousand or a million bad guys across the nation? Is every accused American now subject to Predator strikes? For which crimes might we expect holy hell to rain down upon us? It is a Secret.

This ties in quite closely to an article in the Telegraph.

Russia ‘gave agents licence to kill’ enemies of the state

The Russian secret service authorised the “elimination” of individuals living overseas who were judged to be enemies of the state and ordered the creation of special units to conduct such operations, according to a document passed to The Daily Telegraph.

Are we giving the executive branch a license to kill? Clearly Obama did not pull this trigger. Are we not only giving him a right to kill but to issue licenses to sub-ordinates to kill as well? Does he only get to kill muslims? Will he be able to pull the trigger on any dissident or tax evader? Given the current humanistic religion in Washington will Christians someday make the list? Does the legal reasoning restrict the President’s new license in anyway? Did he have to take a practical skills test? A vision test? Are there any limits at all on this new executive privilege? We don’t know.

It is a secret.

 

Amendment 5

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.

Roguehttp://sago.com
A father of eight, manager of a small business, concerned American.

17 COMMENTS

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17 COMMENTS

  1. Hard questions and good points Rogue. If Bush had done this I think we know what we’d be hearing now from the liberal media. Being it was their Anointed One who authorized it all we hear are congratulations. “Oh look, he’s so hard on terror! He’s defending the Country!” I would gladly have pulled the trigger on that POS myself but that doesn’t make it right and it doesn’t level the slippery slope we are sliding down.

  2. My second career as a newspaper columnist was launched soon after 911 when my first Champion (Decatur, Ga) newspaper column re exec war powers was picked up by many newspapers across the country. For that reason, I have researched this area of the law/war law on most of the issues re enemy combatants and Executive war power for the past decade. I can’t go into detail just now and will try and locate prior columns that address this issue, most of which cite Congressional acts since 911, BUT

    I would also contend that yes, in one sense we are always at war in the sense that our enemies could always be levying war against us. One of the main reasons we gave up the Articles of Confederation for the US Constitution was to empower a unitary executive to wage war at any time so that our enemies would not have a strategic advantage. The check on that power was with Congress to impeach or deny war funds after the fact.

    I would contend that even in the absence of a declaration of war, which is what the acts authorizing force in Iraq and Afghanistan were, which act dubbed AUMF after 911 would arguably cover this action against an al qaeda operative, the President’s grant of “executive” power and status as commander in chief allows him to legally kill those that are waging war against us.

    This broad power is why we should much more carefully choose Presidents than legislators. The remedy for abuse of this power is impeachment or purse strings and/or the people voting against him for re-election or voting his party out. Attempts to prevent such action would also tie the hands of Presidents to act quickly to save the nation for attack.

    There is no easy answer to this question. There is not law that will prevent an evil man from abusing the power but not put the nation at peril that outweighs the danger of such power.

    Such is the state of the world since Eve bit the apple.

    • I’ll throw out for the record; I don’t feel sorry for the guy.

      I agree generally with the idea that the President has the power to wage war. I fall into the area where it needs to at least resemble an emergency or eminent threat or he should go to congress first. Else why bother granting congress the power to declare war? It becomes a meaningless addition. I don’t think they put meaningless things in.

      I agree with you that it highlights the importance of choosing wisely our Presidents. If we always did, no constitution would be necessary. It was written to throw up encumbrances when we choose poorly as the founders knew would happen from time to time.
      They also knew an after the fact vote by the people was a poor check on bad government.

      Madison Federalist 51 “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

      This was obviously written before the 5th Amendment, yet the 5th is clearly the type of auxiliary precaution referred to by Madison. Congress is supposed to look at the 5th and say to the President, “you can’t do that.” You’re right in the sense that they should impeach. He absolutely violated the constitution. This should be their, “you can’t do that” moment.

      In times of peace the constitution is important, in war doubly so. It is in war that rights are most likely to be trampled.

      A Bill of Attainder passed by the VA Assembly in 1778 in the middle of the Revolutionary War was one of the reasons the 5th was created. Patrick Henry asked for it, Thomas Jefferson passed it, Josiah Phillips was the target of it. Now if they thought a marauding US Citizen in the middle of the Revolution should have had the protection of the 5th how can we pretend this circumstance is so different as to set the 5th aside today?

      To my knowledge the US has never put out a hit list for American citizens. Throughout our history we have killed multitudes of Americans on the battle field yet no President before now has done this. Meaning up till now they have all recognized they lacked the power to do it. Always before, you shoot the guy who is shooting at you and no need to check his citizenship.
      From Benedict Arnold to Iva Ikuko Toguri D’Aquin (ako, Tokyo Rose, aka Orphan Ann) to Jane Fonda we have never targeted individual Americans, treasonous or not, for death without trial. Given Lincoln’s excesses during the Civil War he never put Jeff Davis or Robert Lee on a hit list. (I know we may not agree on whether Lincoln had excesses.)

      We can’t seriously argue that somehow this enemy presents a different and more powerful threat than what we have faced in the past. Yet this type of Presidential extreme has never been needed to achieve victory. And it is impossible to argue that by this act Obama has moved the ball toward victory in any meaningful way.

      Why is it we have no problem as the people, or as the congress, second guessing the President on ObamaCare, yet get all hesitant on an excess related to the military? This is not the fault of some soldier with a remote control, the President ordered it. We have to call him out on it.

      We need to at least be able to look at this action, as we look at ObamaCare and say, “Hey good intentions or not that was unconstitutional.” If we don’t call this what it is today, tomorrow we will be killing run of the mill political dissidents or tax evaders living in Ireland. Instead of Predator drones it will be polonium.

      A President of the US using “classified” legal logic to justify targeting and killing a specific American citizen without trial or even indictment.

      This is what the top of a slippery slope looks like.

  3. You know whats funny about this? I couldn’t be happier the SOB is dead but the hypocrisy of Obama and the left on waterboarding which I would suggest is a lot more humane then a hellfire missile up your rearend is sickening. I watched those jackasses for 5 years attack Bush day after day and to watch them do whatever they want in Libya and Yemen and any other Country they want is just maddening!

    • Very true. How many American citizens has Obama assassinated? How many American citizens were waterboarded? Americans have constitutional privileges because of their status.

      This wouldn’t be necessary if the left weren’t such huge, wobbly, idiotic hypocrites about war and granting constitutional protections to enemy aliens at war with the US. Waterboarding is scary as can be but no more physically damaging in the long term than one night of sleep apnea, a syndrome that 30% of men have every single night. To my mind, torture requires that something produce permanent physical damage.

      As to the late and unlamented dead, Awlaki and Samir should have been publicly charged with treason and rebellion against the US and their citizenship revoked years ago. And since they continued to wage war against the US they were fair targets, if you ask me.

        • I think when you saw that it meant at minimum they had been indicted, often already tried and convicted and busted out of jail.
          Also as Clint Eastwood would have said, “You’re worth $500 to me dead or alive, your choice.”

          In other words it wasn’t a hit list it was capture or kill. You present them an opportunity to come along peacefully.

          This would be no different today with a police officer serving a warrant for arrest. Resist and he is liable to plug ya.
          We may use softer language but the meaning is still there.

          The key is a warrant, based on evidence presented, has been issued.
          Even without a warrant a cop can still kill you if he can show active commission of a crime, resisting arrest with deadly force, in some states fleeing felon, etc.

          That is really the problem with the al-Awlaki case. No warrant, no evidence other than what has been delivered by FOX and CNN, no judge or grand jury. Just a death sentence handed down by a president based on classified legal logic. I don’t mean classified evidence either. Nothing was presented to a judge or grand jury with every body sworn to secrecy.

          Instead it is like Obama passed a secret law that allows him to kill US citizens by executive order. We aren’t even allowed to know why it is that in some cases, some Americans, can be popped off without indictment or trial.

          If this guy were a foreign national, it would be different, but a US citizen? I just can’t go along.

  4. Our killing Americans on the battlefield is not uncommon.Thousands of Germans and nisei-sansei Japanese wore the former homeland’s uniform.

    But the official targeting of an American, even a high-value one, found “on the battlefield” raises questions, but alas, academic ones.

  5. It’s about trust. Let’s see, Holder wrote a secret finding, Obama says he saw it, then we must trust Obama it’s OK for him to off a US citizen. First thing we the public know, the guy’s already dead. My first impression?….no there’s something wrong about this ohe.

  6. I assume this “hidden reason” is to protect themselves from the Left, as it contradicts their more public statements.

    I have no problem with the sanction, but as every public official knows, you don’t have to make it public, and in some cases, shouldn’t. Had al Ahwaki simply disappeared off the map, no one would have been the wiser.

    If we could goad the Left to ask these tough questions, it would be better.

    • Hi VB. But if he simply disappeared, how could the administration brag about it? It’s always about their street cred. Remember how popping OBL was the most courageous decision any President made, evah?

      • I think you are dead right here mriggio. It’s about bragging rights.

        You’re right to VB. I don’t doubt it has happened. In dark of night during the cold war. I doubt the decision was always even kicked up to the White House. If you’re playing spy and you see one of your own sleeping with the enemy it may have been an easy decision.

        Difference here is having a President publicly proclaim his right to order the execution of an American citizen without trial.

        Why not at least get an indictment from a grand jury, issue a warrant and go from there?

        • Yes, Bragging rights trumped good sense, hence the cover-up of the “finding”. They want their cake and to eat it too.

          In fact, their legal finding would be filled with holes which even a 2nd Year Con Law could drive a truck thru.

  7. Good post, Rogue. We have to defend the Constitution and its protections, even when bad guys get some benefits from it. No President should be allowed to order hits on American citizens without due process.

    OTOH, if a Marine catches one of the suckers shooting at him from behind a burka, we oughta make him leak like a sieve.

    • Exactly.
      No argument that being found gun in hand or within arms reach on a battlefield leaves a wide open question mark on your resume and getting sent to the ultimate unemployment line by the nearest US Soldier to be expected.
      Whatever your passport might say.

  1. Hard questions and good points Rogue. If Bush had done this I think we know what we’d be hearing now from the liberal media. Being it was their Anointed One who authorized it all we hear are congratulations. “Oh look, he’s so hard on terror! He’s defending the Country!” I would gladly have pulled the trigger on that POS myself but that doesn’t make it right and it doesn’t level the slippery slope we are sliding down.

  2. My second career as a newspaper columnist was launched soon after 911 when my first Champion (Decatur, Ga) newspaper column re exec war powers was picked up by many newspapers across the country. For that reason, I have researched this area of the law/war law on most of the issues re enemy combatants and Executive war power for the past decade. I can’t go into detail just now and will try and locate prior columns that address this issue, most of which cite Congressional acts since 911, BUT

    I would also contend that yes, in one sense we are always at war in the sense that our enemies could always be levying war against us. One of the main reasons we gave up the Articles of Confederation for the US Constitution was to empower a unitary executive to wage war at any time so that our enemies would not have a strategic advantage. The check on that power was with Congress to impeach or deny war funds after the fact.

    I would contend that even in the absence of a declaration of war, which is what the acts authorizing force in Iraq and Afghanistan were, which act dubbed AUMF after 911 would arguably cover this action against an al qaeda operative, the President’s grant of “executive” power and status as commander in chief allows him to legally kill those that are waging war against us.

    This broad power is why we should much more carefully choose Presidents than legislators. The remedy for abuse of this power is impeachment or purse strings and/or the people voting against him for re-election or voting his party out. Attempts to prevent such action would also tie the hands of Presidents to act quickly to save the nation for attack.

    There is no easy answer to this question. There is not law that will prevent an evil man from abusing the power but not put the nation at peril that outweighs the danger of such power.

    Such is the state of the world since Eve bit the apple.

    • I’ll throw out for the record; I don’t feel sorry for the guy.

      I agree generally with the idea that the President has the power to wage war. I fall into the area where it needs to at least resemble an emergency or eminent threat or he should go to congress first. Else why bother granting congress the power to declare war? It becomes a meaningless addition. I don’t think they put meaningless things in.

      I agree with you that it highlights the importance of choosing wisely our Presidents. If we always did, no constitution would be necessary. It was written to throw up encumbrances when we choose poorly as the founders knew would happen from time to time.
      They also knew an after the fact vote by the people was a poor check on bad government.

      Madison Federalist 51 “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

      This was obviously written before the 5th Amendment, yet the 5th is clearly the type of auxiliary precaution referred to by Madison. Congress is supposed to look at the 5th and say to the President, “you can’t do that.” You’re right in the sense that they should impeach. He absolutely violated the constitution. This should be their, “you can’t do that” moment.

      In times of peace the constitution is important, in war doubly so. It is in war that rights are most likely to be trampled.

      A Bill of Attainder passed by the VA Assembly in 1778 in the middle of the Revolutionary War was one of the reasons the 5th was created. Patrick Henry asked for it, Thomas Jefferson passed it, Josiah Phillips was the target of it. Now if they thought a marauding US Citizen in the middle of the Revolution should have had the protection of the 5th how can we pretend this circumstance is so different as to set the 5th aside today?

      To my knowledge the US has never put out a hit list for American citizens. Throughout our history we have killed multitudes of Americans on the battle field yet no President before now has done this. Meaning up till now they have all recognized they lacked the power to do it. Always before, you shoot the guy who is shooting at you and no need to check his citizenship.
      From Benedict Arnold to Iva Ikuko Toguri D’Aquin (ako, Tokyo Rose, aka Orphan Ann) to Jane Fonda we have never targeted individual Americans, treasonous or not, for death without trial. Given Lincoln’s excesses during the Civil War he never put Jeff Davis or Robert Lee on a hit list. (I know we may not agree on whether Lincoln had excesses.)

      We can’t seriously argue that somehow this enemy presents a different and more powerful threat than what we have faced in the past. Yet this type of Presidential extreme has never been needed to achieve victory. And it is impossible to argue that by this act Obama has moved the ball toward victory in any meaningful way.

      Why is it we have no problem as the people, or as the congress, second guessing the President on ObamaCare, yet get all hesitant on an excess related to the military? This is not the fault of some soldier with a remote control, the President ordered it. We have to call him out on it.

      We need to at least be able to look at this action, as we look at ObamaCare and say, “Hey good intentions or not that was unconstitutional.” If we don’t call this what it is today, tomorrow we will be killing run of the mill political dissidents or tax evaders living in Ireland. Instead of Predator drones it will be polonium.

      A President of the US using “classified” legal logic to justify targeting and killing a specific American citizen without trial or even indictment.

      This is what the top of a slippery slope looks like.

  3. You know whats funny about this? I couldn’t be happier the SOB is dead but the hypocrisy of Obama and the left on waterboarding which I would suggest is a lot more humane then a hellfire missile up your rearend is sickening. I watched those jackasses for 5 years attack Bush day after day and to watch them do whatever they want in Libya and Yemen and any other Country they want is just maddening!

    • Very true. How many American citizens has Obama assassinated? How many American citizens were waterboarded? Americans have constitutional privileges because of their status.

      This wouldn’t be necessary if the left weren’t such huge, wobbly, idiotic hypocrites about war and granting constitutional protections to enemy aliens at war with the US. Waterboarding is scary as can be but no more physically damaging in the long term than one night of sleep apnea, a syndrome that 30% of men have every single night. To my mind, torture requires that something produce permanent physical damage.

      As to the late and unlamented dead, Awlaki and Samir should have been publicly charged with treason and rebellion against the US and their citizenship revoked years ago. And since they continued to wage war against the US they were fair targets, if you ask me.

        • I think when you saw that it meant at minimum they had been indicted, often already tried and convicted and busted out of jail.
          Also as Clint Eastwood would have said, “You’re worth $500 to me dead or alive, your choice.”

          In other words it wasn’t a hit list it was capture or kill. You present them an opportunity to come along peacefully.

          This would be no different today with a police officer serving a warrant for arrest. Resist and he is liable to plug ya.
          We may use softer language but the meaning is still there.

          The key is a warrant, based on evidence presented, has been issued.
          Even without a warrant a cop can still kill you if he can show active commission of a crime, resisting arrest with deadly force, in some states fleeing felon, etc.

          That is really the problem with the al-Awlaki case. No warrant, no evidence other than what has been delivered by FOX and CNN, no judge or grand jury. Just a death sentence handed down by a president based on classified legal logic. I don’t mean classified evidence either. Nothing was presented to a judge or grand jury with every body sworn to secrecy.

          Instead it is like Obama passed a secret law that allows him to kill US citizens by executive order. We aren’t even allowed to know why it is that in some cases, some Americans, can be popped off without indictment or trial.

          If this guy were a foreign national, it would be different, but a US citizen? I just can’t go along.

  4. Our killing Americans on the battlefield is not uncommon.Thousands of Germans and nisei-sansei Japanese wore the former homeland’s uniform.

    But the official targeting of an American, even a high-value one, found “on the battlefield” raises questions, but alas, academic ones.

  5. It’s about trust. Let’s see, Holder wrote a secret finding, Obama says he saw it, then we must trust Obama it’s OK for him to off a US citizen. First thing we the public know, the guy’s already dead. My first impression?….no there’s something wrong about this ohe.

  6. I assume this “hidden reason” is to protect themselves from the Left, as it contradicts their more public statements.

    I have no problem with the sanction, but as every public official knows, you don’t have to make it public, and in some cases, shouldn’t. Had al Ahwaki simply disappeared off the map, no one would have been the wiser.

    If we could goad the Left to ask these tough questions, it would be better.

    • Hi VB. But if he simply disappeared, how could the administration brag about it? It’s always about their street cred. Remember how popping OBL was the most courageous decision any President made, evah?

      • I think you are dead right here mriggio. It’s about bragging rights.

        You’re right to VB. I don’t doubt it has happened. In dark of night during the cold war. I doubt the decision was always even kicked up to the White House. If you’re playing spy and you see one of your own sleeping with the enemy it may have been an easy decision.

        Difference here is having a President publicly proclaim his right to order the execution of an American citizen without trial.

        Why not at least get an indictment from a grand jury, issue a warrant and go from there?

        • Yes, Bragging rights trumped good sense, hence the cover-up of the “finding”. They want their cake and to eat it too.

          In fact, their legal finding would be filled with holes which even a 2nd Year Con Law could drive a truck thru.

  7. Good post, Rogue. We have to defend the Constitution and its protections, even when bad guys get some benefits from it. No President should be allowed to order hits on American citizens without due process.

    OTOH, if a Marine catches one of the suckers shooting at him from behind a burka, we oughta make him leak like a sieve.

    • Exactly.
      No argument that being found gun in hand or within arms reach on a battlefield leaves a wide open question mark on your resume and getting sent to the ultimate unemployment line by the nearest US Soldier to be expected.
      Whatever your passport might say.

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