When a person takes the office of the presidency, does that endow him with special God-like abilities that help him distinguish between good and evil, or right from wrong? Do presidents automatically become infallible upon taking the oath of office?
Then why is the Department of Justice (doj) trying to give the current president autocratic, kingly powers—powers that require divine, God-given wisdom to execute in a righteous and just manner?
On February 4, nbc revealed a leaked Justice Department white paper justifying what President Obama has already been doing—suspending constitutional protections and executing Americans without formal charges or trial.
Democratic Rep. Barbara Lee says this doj paper “should shake the American people to the core.”
Harvard law professor Noah Feldman calls the policy a repudiation of the Magna Carta, that fundamental law that took power away from the monarch and gave it to the people and their representatives.
doj lawyers (appointed by President Obama)—whose job it is to ensure that the administration obeys the law—assert in their paper that it is lawful to kill American citizens without due process as long as three conditions are met. One: “an informed, high-level official” has determined that the citizen poses an imminent threat of violence against the United States. Two: Capture is infeasible. Three: The killing is conducted in a manner consistent with applicable principles of the laws of war.
According to the white paper, as long as a high-level official thinks you’re a threat, it’s hard to capture you, and he does it relatively “cleanly,” he can kill you. Doesn’t matter if you are in an active war zone or not. Doesn’t matter if you are a member of al Qaeda or not.
It might seem like good policy to strike bad guys before they can act. Many conservatives thought “enhanced interrogation” and Guantanamo were okay during the Bush administration. Now many liberals are okay with killing people like an autocrat—as long as it’s President Obama doing it.
But politics aside, disregarding the Constitution has set a dangerous precedent.
Former New Jersey Superior Court Judge Andrew Napolitano says the white paper should shock every American. The Justice Department’s “logic is flawed, its premises are bereft of any appreciation for the values of the Declaration of Independence and the supremacy of the Constitution, and its rationale could be used to justify any breaking of any law by any ‘informed, high-level official of the U.S. government,’” he warns (emphasis added).
Napolitano says the “lawful” power to suspend universal constitutional protections guaranteed to all persons—and kill them without any due process whatsoever—should be repugnant to Americans. “This is the power claimed by kings and tyrants,” he writes. “It is the power we have arguably fought countless wars to prevent .… Now … it is here.”
The president and various unnamed “high-level officials” have taken it upon themselves to act as accuser, prosecutor, judge, jury and executioner, with no legislative or judicial oversight.
For more than a year, the Obama Justice Department fought to hide the secret legal research it used to justify the president’s killing of U.S. citizens overseas using drones. It claimed the complicated research was so sensitive it could not be revealed to the public.
Judge Colleen McMahon didn’t like that explanation at all. But there was nothing she could do to force the administration to explain how its actions weren’t violating the Constitution that gave it its power in the first place.
“I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusions secret,” she wrote.
The government not only is hiding its legal “justification” for depriving a U.S. citizen of his constitutional protections—and his life—it is also fighting to stop the legislative and judicial branches from supervising or regulating the strikes.
“The paper’s sweeping claims of executive power are audacious,” University of Notre Dame law professor Mary Ellen O’Connell said. “The paper denies Congress and the federal courts a role in authorizing the killings—or even reviewing them afterwards.”
What does the legislative branch say about the executive branch’s massive power grab? For her part, House Minority Leader Nanci Pelosi says she’s fine with it. She said President Obama doesn’t necessarily need to reveal when American citizens are targeted and killed.
As scary as it is that the president and “informed, high-level officials” are playing God with Predator drones and Hellfire missiles, if you examine the Justice Department white paper in detail, the implications are even more terrifying.
The document’s language is so vague, convoluted and contradictory that it could mean whatever the president’s high-level men want it to mean.
For example, the white paper says an “informed” official must think the target poses an “imminent” threat to American lives or interests before being executed. Not only does the document contain no definition of what qualifies an official as being “informed,” it completely redefines the concept of “imminence.” The government does not have to have information about an imminent attack—or even a specific plot or attack—officials just have to suspect that a person is engaging in an effort to harm Americans. The targets don’t even have to be part of al Qaeda or any other “terrorist” organization that America is officially at war with. They can be people who are associating with known al Qaeda operatives.
When the memo says execution is permitted when capture is infeasible, the document later redefines “infeasible” to mean any situation where there is “undue risk” to U.S. personnel. The document doesn’t define what constitutes “undue risk.” It does say that in such infeasible situations targeted killings (supposedly by drones or air strikes) are acceptable if a foreign country refuses to turn over suspects or grant permission for an on-land operation.
But if we let the doj white paper supersede the Constitution of the United States of America, does it matter if the high-level officials are targeting someone in a foreign country, or could they also kill Americans here at home? Lawmakers asked this question to John Brennan, the president’s nominee for cia director, during his confirmation hearings: Has the government given itself the authority to kill American citizens on American soil without any due process of law? Brennan refused to answer. He equivocated and demurred. Then he admitted that he thinks there are no geographic limits to where Americans can be targeted and killed as part of America’s war on terror.
In a February 14 interview, the president was asked the same question: Can the government override the Constitution and kill Americans on U.S. soil without due process?
Again, no dogmatic yes or no answer. The best the president could manage was that he doesn’t intend to do this because the situation in America is different. It all rides on what the president intends.
Why isn’t the media all over this? Why isn’t every congressman and senator all over this? This is exactly the kind of government overreach that President Obama campaigned on ending. He made shutting down extrajudicial imprisonment of foreign combatants in Guantanamo a major plank of his election campaign. Now he is talking about—no, committing—extrajudicial killing of American citizens. And he might even bring it home to America.
Jennifer Granholm, the former Democrat governor of Michigan, explains, “If this was Bush, I think that we would all be more up in arms .…” But this is President Obama we are talking about—and “we trust the president,” she said.
msnbc’s Chris Matthews admitted he was uncomfortable with the program, but he decided it is justifiable because current cia Director Leon Panetta clearly agonizes over his decisions and thus can be trusted to make good decisions about who to kill. “I think Leon is a conscientious guy,” he said. “He goes to church every day. I think sometimes you have to do things that are not nice.”
Republican Sen. Lindsey Graham thinks the kill program is a good idea too. He said he is planning on introducing a resolution to praise Obama for the assassination program. “Every member of Congress needs to get on board,” Graham said.
Even Fox News backed President Obama’s constitutional overreach. Erick Erickson wrote, “We must trust that the president and his advisers, when they see a gathering of al Qaeda from the watchful eye of a drone, are going to make the right call and use appropriate restraint and appropriate force to keep us safe.”
America is putting a lot of trust in a few “informed, high-level officials.”
America has turned down a dangerous road. It is letting presidents and “high-level officials” administer powers of life and death. It is admitting that there is basically one thing that will keep the government from abusing this lethal power: its trust in the intentions of the president and his men. Worst of all, America is not only allowing its administration to commit these actions, it is showing that it does not care if it trashes the Constitution to do so.
Six thousand years of human history show that men cannot be trusted. President Obama is not the first leader to ask for trust in exchange for assurances. Once men gain that kind of power, it never ends well.
As John Adams warned in 1792, “There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public.”
The Constitution is designed to prevent any president from ever becoming a tyrant. It is designed to protect Americans’ freedom from the intentions of a high-level man. The framers of the Constitution had a deep understanding of human nature. They knew it had to be restrained by a supreme law of the land. They had seen what happened when an authoritarian abused his subjects.
Without that supreme law, eventually all that is left is every man doing what is right in his own eyes.
Following World War ii, the Allies tracked down fleeing Nazis and brought them to justice. Nazis were taken to court, charged with their crimes, and only then were some of them executed. These Nazis had already committed criminal acts against the Allies, and they were not even citizens of the Allied nations.
The whole reason the Allies went through this extended process was to protect the rule of law. Unfortunately, America’s supreme law—the Constitution—is being pushed aside. Ostensibly, this is to make us safer. Ironically, without law, the only two options are anarchy and tyranny. ▪