Wielding The Power Of Life And Death

Plenty of people, myself included, got upset when the Bush Administration reserved for itself the right to unilaterally engage in a warrantless wiretap.  I thought it was an affront to the Constitution that the President, acting on his authority alone, could violate an individual's right to privacy and not even so much as retroactively seek judicial concurrence.

Plenty of people were also upset that the Bush Administration reserved the right to arrest and detain anyone, even a U.S. citizen in U.S. territory, without the issuance of an arrest warrant or the explanation to anyone outside of military or intelligence chains of command whether there was any probable cause to arrest and detain them.  I got particularly upset at the idea that the detention thus resulting would be indefinite, denying the detainee the right to an arraignment.

But like Chris Hallquist, I'm surprised that very few people seem upset at this.  I am not in their ranks. 

The director of national intelligence affirmed rather bluntly today that the U.S. intelligence community has authority to target American citizens for assassination if they present a direct terrorist threat to the United States. Information gained from the Christmas Day bomber has officials on high alert.

"We take direct actions against terrorists in the intelligence community; if … we think that direct action will involve killing an American, we get specific permission to do that," Director of National Intelligence Dennis Blair told the House Intelligence Committee.

... According to U.S. officials, only a handful of Americans would be eligible for targeting by U.S. intelligence or military operations. The legal guidance is determined by the National Security Council and the Justice Department.

If George W. Bush thought you were a terrorist, he was going to read your e-mail, listen to your phone calls, and hold you in a dungeon until he figured it was safe to let you out. But Barack H. Obama? He'll effin' kill you, man!

From a macro-level Constitutional perspective, the issue is the same. The Executive branch reserves the right to act unilaterally, without judicial or Congressional oversight, to deprive an American citizen of a right protected by the Fifth Amendment. Due process falls by the wayside because the Executive branch chooses to label you a "terrorist."

From a moral level, it's obviously a whole lot worse to be assassinated than to be eavesdropped on or even arrested.

Now, when I was outraged at the Bushmen for this, I did give them the benefit of the doubt that they wouldn't actually do this unless they had some really good reason.  I didn't think for a second that they would arbitrarily eavesdrop on and arrest people just because they didn't like them.  And I don't think the Obamamen are going to assassinate just anyone, either.  NSA Blair went to some pains in his testimony before Congress to claim that the number of people targeted under this policy are very small and that high-level, case-by-case reviews within the CIA and DOJ take place before an assassination is attempted.

But I have two big concerns and I would hope that Readers of all political stripes would share them.  The first is the unilateral wielding of the power of life and death against a U.S. citizen by his own government against him, without any kind of a Constitutional check and balance.  I don't oppose the death penalty (the Constitution specifically authorizes it in certain cases, after all) and I hardly suggest that there are no U.S. citizens out there in the world somewhere who are not dangerous.  But it would be nice if a government headed by a man who used to teach Constitutional law might pay a decent respect to that Constitution and derive some kind of a minimal check against abuse and dangerous accumulation of power in the executive.

Second, why are we talking about assassination policy in public Congressional hearings in the first place?  Why is the National Security Advisor bluntly, candidly, and publicly saying to the world that we do, in fact, assassinate specific individual bad guys?  Shouldn't the public line be something like this:

"Our priorities are to first thwart terrorist activities from harming Americans, second to neutralize terrorist groups, and third to deny terrorist groups the ability to act.  This does mean taking direct action against them and yes, sometimes people are killed when that happens.  But our preference is to take them captive, because terrorists, once captured, stop being threats and start being intelligence assets."

Instead, we've got a guy who reports directly to the President saying, "Yeah, sometimes we just decide to take some of these m-f'ers out.   But no worries, the Big Guy gives us the A-OK when we do that, so it's all good in the hood.  What's your next question, Congressman?"

If we're going to have an overt policy authorizing assassinations -- and I can see that there are some good arguments for why we should -- then we should do what we can to make that policy conform to our Constitutional ideals.  We already have a legal framework for the establishment of a "National Security Court" and a working court that already reviews secret applications for wiretaps and other would-be violations of citizens' Constitutional rights to make these actions conform to the Fifth Amendment.  If the President or his delegate determines that an assassination is necessary in the interests of national security, maybe that's the right call.

And if that process already requires high-level review before the order to kill is given, then that means we aren't dealing with a "ticking time-bomb" situation anyway and there is time for review and contemplation.   Other procedures exist for expedited review of time-sensitive matters; the FISC often reviews matters submitted within 48 hours of the field-level identification of need for action.

So let the Administration present a request for a death warrant to an independent Article III court.  There are plenty of procedures in place to seal up records from public review if they involve confidential or sensitive information already.

If no existing court can accommodate these kinds of actions, then Congress can create one; Article III specifically gives Congress the power to create "inferior Courts," meaning courts subordinate to the Supreme Court.

But please, let us not shrug off the President's arrogation to himself the unilateral power to literally kill a U.S. citizen, just because we're pretty sure that the only ones he's going to kill are bad guys.  Our Founding Fathers would weep long and hard to think that we would fritter away the legacy they left us in such a manner.