You Want to Kill Bad Guys? Prove That They’re Bad.

Last week, I took a break from my regularly scheduled gender beat to be grieved, as a citizen, about the Obama administration’s newly announced policy that asserted, as Charlie Savage reported in the New York Times:

… that it is lawful for the government to kill American citizens if officials deem them to be operational leaders of Al Qaeda who are planning attacks on the United States and if capturing them alive is not feasible.

A friend called me to argue with me about my recoil, saying that surely I had misunderstood. There is a process, my friend argued, a very reasonable one: Administration officials define someone as a terrorist who’s an imminent threat to the U.S., and are reviewed by a Congressional committee. So I went back and checked. That’s not what Holder said. He outlined some possible scenarios that would justify extrajudicial assassinations of American citizens, but he did not limit the President’s power to those scenarios. And he said that the administration would brief Congressional leaders, but not that it was required to brief them. In other words, the policy is the same as it was under George W. Bush: Trust us. We know what we’re doing. Glenn Greenwald explains it this way:

When Obama officials (like Bush officials before them) refer to someone “who is a senior operational leader of Al Qaeda or associated forces,” what they mean is this: someone the President has accused and then decreed in secret to be a Terrorist without ever proving it with evidence. The “process” used by the Obama administration to target Americans for execution-by-CIA is, as reported last October by Reuters, as follows:

“American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions . . . There is no public record of the operations or decisions of the panel, which is a subset of the White House’s National Security Council . . . Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.”

As Leon Panetta recently confirmed, the President makes the ultimate decision as to whether the American will be killed: “[The] President of the United States obviously reviews these cases, reviews the legal justification, and in the end says, go or no go.”

… the President and his underlings are your accuser, your judge, your jury and your executioner all wrapped up in one, acting in total secrecy and without your even knowing that he’s accused you and sentenced you to death, and you have no opportunity even to know about, let alone confront and address, his accusations; is that not enough due process for you? At Esquire, Charles Pierce, writing about Holder’s speech, described this best: “a monumental pile of crap that should embarrass every Democrat who ever said an unkind word about John Yoo.”

The New York Times editorial board weighed in on it this way:

President Obama, who came to office promising transparency and adherence to the rule of law, has become the first president to claim the legal authority to order an American citizen killed without judicial involvement, real oversight or public accountability.

If you’re reading this at The American Prospect, you may trust the Obama administration to only kill genuine evildoers. I don’t; personally, I don’t trust any powerful entity that does not have to have its evidence and reasoning examined by some other entity, beyond its orbit. The desire to please one’s boss, to be thought a team player, is just too powerful. But even if you do trust Obama, consider: Any policy enacted by this administration exists also for every following administration. How will you feel when you don’t trust the President or the President’s advisors?

The Obama administration hasn’t even shown the memo from the Office of Legal Counsel (i.e., the equivalent of the John Yoo authorization letter) that outlines the underlying legal justification for this policy. In what circumstances can the legal policy itself be so classified that it bears no public review? Here’s the New York Times’ editorial board’s comment:

[The administration] has even refused to acknowledge the existence of a Justice Department memo providing legal justification for killing American citizens, even though that memo has been reported by The Times and others. It is beyond credibility that Mr. Obama ordered the Awlaki killing without getting an opinion from the department’s Office of Legal Counsel. Even President George W. Bush took the trouble to have lawyers in that office cook up a memo justifying torture….

We have said that a decision to kill an American citizen should have judicial review, perhaps by a special court like the Foreign Intelligence Surveillance Court, which authorizes eavesdropping on Americans’ communications.

Mr. Holder said that could slow a strike on a terrorist. But the FISA court works with great speed and rarely rejects a warrant request, partly because the executive branch knows the rules and does not present frivolous or badly argued cases.

That’s the point: Force any administration to reveal its reasoning and have it examined against the rules. That makes people more careful. When people do not have to explain their reasons, those reasons can get sloppy. Self-justification sets in. Do we really want the President of the United States, one of the most powerful people in the world to begin with, to have the power to assassinate American citizens without even checking in with a secret court?

This is how the rule of law dies and a president becomes an emperor: in silence, with no outcry.

I remain shocked and grieved that my country has come to this.

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