online today from the January issue of American Conservative –
Obama’s “don’t ask, don’t tell” test for killing Americans.
By James Bovard
How much evidence should the U.S. government be obliged to show before it kills you?
None, according to the Obama administration.
And how much evidence of your wrongdoing should the government be obliged to possess before officially targeting you for killing?
That’s a secret, according to the president’s team. If judges force the government to answer that question, the terrorists will win.
The Obama administration now claims a right to kill American citizens without trial, without notice, and without any chance for the marked men or women to object legally. The Bush administration’s “targeted killing” program has been radically expanded to include Americans far from any war zone. Director of National Intelligence Dennis Blair testified earlier this year that the targeting-to-kill decision depends only on “whether that American is involved in a group that is trying to attack us.”
As former CIA agent Phil Giraldi noted in this magazine last April, “involved” is one helluva vague standard. And the list of officially designated terrorist groups has little or nothing to do with whether those organizations actually pose significant danger to the United States.
The poster boy for the targeted killing program is Anwar al-Awlaki, an American-born Muslim cleric who is reportedly in Yemen. The Obama administration touts allegations that al-Awlaki helped spark the slaughter at Ford Hood, Texas, inspired the attempt to destroy a jetliner on Christmas Day 2009, and has done other dastardly things that the government has not yet disclosed (for our own good, of course). Al-Awlaki might well be a four-star bastard, but government press releases and background briefings have not previously been sufficient to justify capital punishment.
The American Civil Liberties Union is suing to compel Uncle Sam “to disclose the legal standard it uses to place U.S. citizens on government kill lists.” The Obama administration has responded by invoking the doctrine of state secrets, effectively claiming that national security demands that these policies be kept hidden. By hiding behind state secrets, the feds don’t even have to explain why the law doesn’t apply to their actions.
In oral arguments in federal court on Nov. 9, Justice Department attorney Douglas Letter asserted that no judge has authority to be “looking over the shoulder” of the Obama administration’s targeted-killing program. Letter declared that the program involves “the very core powers of the president as commander-in-chief.” When Obama campaigned for the presidency in 2008, entitling the president to kill Americans without trial was not one of the reforms he promised.
The main difference between the Bush administration and the Obama administration is that the Obama team publicly claims a right to do what Bush’s lawyers authorized behind closed doors. Steven Bradbury, head of the Justice Department’s Office of Legal Counsel, told the Senate Intelligence Committee in early 2006 that Bush could order killings of suspected terrorists within the United States. When Newsweek contacted the Justice Department to verify this novel legal doctrine, spokeswoman Tasia Scolinos stressed that Bradbury’s comments occurred during an “off-the-record briefing.” Newsweek’s report generated no media stir. Apparently, unless the government disclosed that it had actually begun assassinations within the United States, it was a non-story.
An article by Charlie Savage in the New York Times in mid-September noted that “There is widespread agreement among the administration’s legal team that it is lawful for President Obama to authorize the killing of someone like Mr. Awlaki.”
It is comforting to know that top political appointees concur that some “law” gives them the right to assassinate Americans. But this is the same “legal” standard the Bush team used to justify torture. Since Bush’s lawyers told him that waterboarding wasn’t torture—despite a hundred years of U.S. court decisions to the contrary—the president was blameless, or so he recently claimed to NBC’s Matt Lauer.
There are other ominous parallels with the worst abuses of the Bush administration. When Bush decreed in November 2001 that he had the authority perpetually to detain anyone as an enemy combatant, based solely on his own assertion, administration defenders rushed to assure the media that the new policy did not apply to Americans or inside the United States. Seven months later, after José Padilla was arrested in Chicago and labeled an enemy combatant, the administration acted as if only fools would believe the president would not use his boundless power any way he could.
Similarly, Obama’s power grab has not spurred much opposition, perhaps in part because it is assumed to apply only to killing Americans abroad. (Hopefully farther away than Niagara Falls, Canada.) But the basis of the policy is that the entire world is a battlefield, thus the president has unlimited “commander in chief” powers everywhere.
Once the principle is accepted that the U.S. government can label Americans as enemies of the state and kill them without judicial nicety, the bureaucratic wish list of targets will continually expand. A similar metamorphosis occurred when the FBI decided to use illegal powers to target people who garnered official displeasure. Nixon White House aide Tom Charles Huston explained that the FBI’s COINTELPRO program continually stretched its target list “from the kid with a bomb to the kid with a picket sign, and from the kid with the picket sign to the kid with the bumper sticker of the opposing candidate. And you just keep going down the line.”
Blank checks for killing enemies of the state is the recipe for domestic tranquility that most dictatorships have used throughout history. And apparently this is a standard that many Americans might embrace. Some movement conservatives—such as columnist Jonah Goldberg—are already whooping for the U.S. government to assassinate people such as Wikileaks founder Julian Assange. Should the government be entitled to kill anyone who exposes its lies? Or should the standard be broader, permitting governments to kill anyone who is inconvenient?
The Obama administration’s position “would allow the executive unreviewable authority to target and kill any U.S. citizen it deems a suspect of terrorism anywhere,” according to Center for Constitutional Rights attorney Pardiss Kebriae. And the feds have a horrible batting average when it comes to accurately identifying terrorist suspects. In the six weeks after the 9/11 attacks, the U.S. government rounded up 1,200 people as suspected terrorists or terrorist supporters. None of the detainees proved to have links to the attacks. And as the ACLU noted earlier this year, “the government has failed to prove the lawfulness of imprisoning individual Guantanamo detainees in 34 of the 48 cases that have been reviewed by the federal courts thus far, even though the government had years to gather and analyze evidence for those cases and had itself determined that those prisoners were detainable.”
In fact, debacles over false charges against Gitmo detainees may have spurred the expansion of the targeted-killing program. Dead men file no appeals. Assassinations could be less embarrassing than trials because most of the American media will roll over and permit the government to blacken its victims however it pleases. As long as officials, speaking anonymously, assure reporters that the deceased were bad people, the story is closed.
The Food and Drug Administration recently proposed far more graphic warning labels for cigarette packages. But while the feds are demanding extraordinary measures to inform people about private risks, nothing is being done to warn people of the health risks of an unleashed Leviathan.
What sort of warning labels would be appropriate for Obama’s killing program? A picture of a sniper’s crosshairs on a mother holding a baby in her cabin door, à la Vicki Weaver? A picture of young demonstrators lying dead on the ground after a National Guard volley, à la Kent State? A picture of children lolling in the streets moments before they are obliterated, courtesy of the helicopter gun-sight video from the Wiki-Leaked “Collateral Murder” recording made by the U.S. military in Iraq?
If Obama gets away with this power-grab, the rhetoric for the 2012 race for the White House should be retuned. Instead of listening to candidates compete based on the number of new benefits they promise to lavish upon voters, prudent citizens will focus on which presidential candidate seems least likely to kill them or members or their family. We might hear campaign slogans like “Vote for Smith: he won’t have you killed unless all of his top advisers agree you deserve to die.” Unfortunately, as with other campaign promises, there will be no way for voters to compel politicians to honor their pledges.
Obama’s doctrine enabling the targeted killing of American citizens is at least as much an assassination of the Constitution as anything George W. Bush perpetrated. Yet most of the media has ignored the issue or treated it like an arcane legal dispute of interest only to people in desert hideaways 6,000 miles away. The more power the government has seized, the more craven the media has become.
Thanks to sovereign immunity and cowardly judges, it is unlikely that any Obama administration official will be held liable, regardless of whom the U.S. government slays. Americans have had plenty of warnings that the federal government is destroying the leashes the Founding Fathers created. Once it is accepted that the executive branch is entitled to kill Americans without a trial, only damn fools should expect Leviathan to limit its ravages here and abroad.
James Bovard is the author of Attention Deficit Democracy.