Extrajudicial

Posted by Lex, on October 1, 2010

Back in the days before foreign policy got poisoned by partisanship (I jest), I was compelled at times to defend what other people chose to view as constitutional violations by President Obama’s predecessor. The salient issue at that juncture was whether normal congressional legislation requiring FISA oversight of executive branch exploitation of signals intelligence that might or might not have passed through US telecoms (and therefore potentially rendered US citizens liable to unwarranted snooping) could be safely disregarded by a Commander-in-Chief exercising his Article II powers in a time of war. In short, could President Bush authorize warrantless wiretaps on known terrorists overseas even if one end of their conversations terminated in or routed through US terrestrial architecture?

I argued yes: Congress could not through normal legislation restrict the constitutional powers of a co-equal branch of government. Others argued, “No, he’s shredding the Constitution, and that.” This over intercepted email and telephony data.

Where are they today, these constitutional purists, as our Commander-in-Chief avidly pursues the extrajudicial execution of an American citizen living overseas and denies judicial review?

That a government has the right to kill in certain defined circumstances cannot reasonably be denied, but it must be to protect itself or its citizens from imminent danger, and the protective measures must be proportionate to the nature of the danger. In Awlaki’s case, the suit seeks an order to stop the government from killing him unless he poses an immediate threat. An American citizen hiding in the chaotic state of Yemen poses no direct threat to the existence of the US government. Individuals like Awlaki pose a random threat to citizens of numerous countries, and that threat justifies governments taking protective measures.
Need for judicial oversight

But if the measure to be taken is assassination, there must be some judicial oversight. The troubling aspect of extrajudicial killings is that the executive branch acts as prosecutor, judge, and executioner. There are no checks and balances. No one knows what standard of proof it employs. Is it authorizing assassination on the basis of probable cause that a crime has been committed, or on evidence that shows it beyond a reasonable doubt?

While officials claim that an American in Yemen is advocating and perhaps participating in terrorist acts, they disclose no evidence. No independent party judges whether there is sufficient proof to justify killing. No one discloses what standard of proof the executive branch is using. Indeed, the plaintiffs in the Awlaki suit demand that the government make transparent the process used to determine whether a citizen can be executed without trial.

When government asserts an unreviewable power to kill its own citizens, it mocks the rule of law, and claims a power more familiar to tyrants than democracies.

Let me stipulate up front, Awlaki is a turd. He might also be a traitor, guilty of treason. Something he has a right, as an American citizen, to defend himself against in court.

Lex thinks he ought to die, and will shed no tears when it happens. In this case at least, President Obama appears to agree with Lex. I’m just not sure that between the two of us, Lex and Barack ought to get to make that call all by our lonesomes.

And I’m absolutely astonished at those who once manned the barricades over warrantless wiretaps passing off the matter of the US government plotting to assassinate a US citizen as a matter of cruel indifference.

“Where principle is at stake, be deaf to expediency.” — Matthew Fontaine Maury, Oceanographer of the US Navy

Back To The Index