Thursday, May 31, 2012
The leader of the government regularly sits down with his
senior generals and spies and advisers and reviews a list of the people they
want him to authorize their agents to kill. They do this every Tuesday morning
when the leader is in town. The leader once condemned any practice even close
to this, but now relishes the killing because he has convinced himself that it
is a sane and sterile way to keep his country safe and himself in power. The
leader, who is running for re-election, even invited his campaign manager to
join the group that decides whom to kill.
This is not from a work of fiction, and it is not
describing a series of events in the Kremlin or Beijing or Pyongyang. It is a
fair summary of a 6,000-word investigative report in The New York Times earlier
this week about the White House of Barack Obama. Two Times journalists, Jo
Becker and Scott Shane, painstakingly and chillingly reported that the former
lecturer in constitutional law and liberal senator who railed against torture
and Gitmo now weekly reviews a secret kill list, personally decides who should
be killed and then dispatches killers all over the world -- and some of his
killers have killed Americans.
We have known for some time that President Obama is
waging a private war. By that I mean he is using the CIA on his own -- and not
the military after congressional authorization -- to fire drones at thousands
of persons in foreign lands, usually while they are riding in a car or a truck.
He has done this both with the consent and over the objection of the
governments of the countries in which he has killed. He doesn't want to talk
about this, but he doesn't deny it. How chilling is it that David Axelrod -- the
president's campaign manager -- has periodically seen the secret kill list?
Might this be to keep the killings politically correct?
Can the president legally do this? In a word: No.
The president cannot lawfully order the killing of
anyone, except according to the Constitution and federal law. Under the
Constitution, he can only order killing using the military when the U.S. has
been attacked, or when an attack is so imminent and certain that delay would
cost innocent American lives, or in pursuit of a congressional declaration of
war. Under federal law, he can only order killing using civilians when a person
has been sentenced lawfully to death by a federal court and the jury verdict
and the death sentence have been upheld on appeal. If he uses the military to
kill, federal law requires public reports of its use to Congress and
congressional approval after 180 days.
The U.S. has not declared war since World War II. If the
president knows that an attack on our shores is imminent, he'd be hard-pressed
to argue convincingly that a guy in a truck in a desert 10,000 miles from here
-- no matter his intentions -- poses a threat to the U.S. so imminent and
certain that he needs to be killed on the spot in order to save the lives of
Americans who would surely die during the time it would take to declare war on
the country that harbors him, or during the time it would take to arrest him.
Under no circumstances may he use civilian agents for non-judicial killing.
Surely, CIA agents can use deadly force to protect themselves, but they may not
use it offensively. Federal laws against murder apply to the president and to
all federal agents and personnel, wherever they go on the planet.
Since 9/11, the United States government has set up
national security systems that function not under the Constitution, not under
the Geneva Conventions, not under the rule of law, not under the rules of war,
not under federal law, but under a new secret system crafted by the Bush
administration and personally directed by Obama, the same Obama who condemned
these rules as senator and then extended them as president. In the name of
fighting demons in pick-up trucks and wars that Congress has never declared,
the government shreds our rights, taps our cellphones, reads our emails, kills innocents
abroad, strip searches 87-year-old grandmothers in wheelchairs and 3-year-old
babies in their mothers' arms, and offers secrecy when the law requires
accountability.
Obama has argued that his careful consideration of each
person he orders killed and the narrow use of deadly force are an adequate and
constitutional substitute for due process. The Constitution provides for no
such thing. He has also argued that the use of drones to do his killing is
humane since they are "surgical" and only kill their targets. We know
that is incorrect. And he has argued that these killings are consistent with
our values. What is he talking about? The essence of our values is the rule of
law, not the rule of presidents.
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