Actual Death Panels in the Obama Administration
In my latest piece at The Daily Beast, I excoriate the Obama Administration for its contention that it possesses the power to kill American citizens if they are determined by unknown persons in the executive branch to be imminent threats to the United States or its interests. The whole piece can be found here, and it includes links to pieces by Dana Priest, Eli Lake, and Glenn Greenwald, three talented journalists to whom I’m indebted on this story.
Frankly, I am flabbergasted that the practice is as uncontroversial as it seems to be. Over the weekend, I Tweeted back and forth on the subject with Jon Henke, a razor sharp libertarian whose thinking and writing I am always eager to consume. He argued that this is an inherently difficult subject because there are a lot of “problems, subjective judgments and gray areas” at play. I agree to a point. Obviously I don’t think that an American citizen squaring off against the United States Marines on a battlefield need be arrested. So does a heavily armed terrorist cell holed up in a Baghdad apartment occupy a war zone? What if they’re holed up in a Hamburg apartment? An apartment in Charleston, South Carolina?
But I cannot believe that blurring lines makes it constitutionally permissible to assassinate citizens who aren’t on a battlefield, or sitting armed in an apartment that serves as the equivalent.
As Mr. Greenwald puts it:
The people on this “hit list” are likely to be killed while at home, sleeping in their bed, driving in a car with friends or family, or engaged in a whole array of other activities. More critically still, the Obama administration — like the Bush administration before it — defines the “battlefield” as the entire world. So the President claims the power to order U.S. citizens killed anywhere in the world, while engaged even in the most benign activities carried out far away from any actual battlefield, based solely on his say-so and with no judicial oversight or other checks. That’s quite a power for an American President to claim for himself.
In my piece in The Daily Beast, I argue the following: “That this power helps us to eliminate a few dangerous men in the short term hardly justifies the imprudent folly of indulging an unchecked power so extreme it can only end in corruption.” I stand by this position. How many Americans can there possibly be who are a) terrorists who pose an imminent threat; b) impervious to being captured alive; c) capable of being killed.
But even if you believe that our situation is so dire that American citizens must be killed without having been charged, tried and convicted of anything, shouldn’t you at the very least want this extraordinary, unprecedented power checked by someone in another branch of government? What is the counterargument against that added safety? If these killings are actually free from abuses, surely the president possesses ample evidence that the person targeted actually is a terrorist who poses a grave threat. Is it too much to ask that a three judge panel agrees? And that Congress reviews all killings periodically? Shouldn’t the folks at The Claremont Institute, who champion the wisdom of the Founding Fathers, be arguing that those men would’ve made sure to build checks against such a significant power into other branches of the government?
The balance of my piece is here. As always, I’m eager to hear critiques, and especially curious to hear the argument against oversight from those who insist that this is a necessary practice. Takeaway lesson: no one who rises to the presidency can be trusted to limit himself to powers afforded his office by the Constitution properly understood.
When people like myself call constantly for limited government, we’re accused of being out-of-touch with the realities of modern society. Is your piece an attempt to show hypocrisy, or are you truly calling for limitations on all aspects of government? If it’s the latter, then, amen. Once limitations are lifted, this is what you get, and it gets worse. They now have a commercial showing Green Police going around harrassing and arresting everyone in violation of Green laws — it’s supposed to be promoting environmentalism — it’s promoting a police state. A president shouldn’t have the powers that have been assumed through the years, period. Then everyone becomes numb to the violations — the media hasn’t reported on this, and although I knew the power exists and have fought against these violations of power, this is the first I’ve heard of the arrogant statements that proudly explain the power.
You are right, this should be reported as a big deal, just like all the other presidential violations of power, but let’s not limit our outrage to one particular violation — not saying you are, but many do practice selective outrage according to the particular violation and whether it offends their political philosophy. You can’t have selective limitations — you either limit government or you don’t. What you have written about is one violation among many others and a main reason why libertarians believe government should be limited with no qualifications. Hopefully more fence-sitters will join the libertarian effort to make these limitations a reality.
— mike farmer · Feb 8, 02:31 PM · #
So what are non-Americans, chopped liver? If the US government is
free to assassinate and wiretap my own compatriots, then I think
American citizens deserve the same the treatment.
— M. Gregoire · Feb 8, 03:06 PM · #
At this point I’m hoping that they don’t close the borders before my wife and I can expatriate. America has become a place where, regardless of elections, conservative authoritarianism has become the only tenable political philosophy, regardless of its destructive results on the economy, on security, and on civil liberties.
No matter how many elections they lose, we’re still ruled by conservativism. It’s really sick.
— Chet · Feb 8, 05:48 PM · #
Jesus, Conor. Do you ever research more than your deeply felt feelings? SSCI ring a bell? HPSCI?
Yours is a powerful moral intuition in search of Constitutional cover. I get that, I really do. Hell, it might even be a legit way to do business in The Daily Beast or wherever. But it’s also a deeply superficial analysis of the Constitutional (legal) issues surrounding Targeted. Killings. Abroad. Even the ACLU isn’t entirely sure whether it’s illegal. Did you even read any scholarly stuff, or were you simply content with your initial squirt of indignation? All evidence points to the latter.
And that sucks. There is a good discussion to be had here. You just haven’t contributed to it.
And in the spirit of being your friendly neighborhood editor, the following sentence is really not-so-good.
Imprudent folly? And ‘corruption’ is imprecise. You’re looking for ‘abuse’, methinks. And the thought the sentence expresses is pablum. Happy Monday!
— Kristoffer V. Sargent · Feb 8, 06:08 PM · #
Obama has been a disappointment on issues such as these, unfortunately. The problem with a centrist (and he is one, IMO), is that we are by nature tinkerers. “Change” sounds better than “tinker around the edges” in a campaign, of course.
Btw, Mike Farmer: you realize that the “Green Police” commercial was an ad for Volkswagons, right? Not a public service announcement? It was not advocating a police state. It was advocating buying a certain type of car, so people will think you’re good ‘n green. It rubbed me the wrong way too (and I wonder if VW will come to regret that commercial), but damn.
As for your larger point, people do have an unfortunate tendency to only object to “big government” when said big government does stuff they don’t like. I think that’s something that all of us have to fight against, because the tendency is natural.
Also, it seems to me that those who advocate for more limited government need to made good arguments as to how XYZ function presently done by the government can/will be picked up via non-government actors (corporations, charities, etc). Or, if the function will simply cease, how that’s good (or at least acceptable). It’s well and good to say big government is bad. It’s another thing to discuss how axing Medicare (just as an example) will play out in the real world.
— Rob in CT · Feb 8, 07:08 PM · #
“Btw, Mike Farmer: you realize that the “Green Police” commercial was an ad for Volkswagons, right? Not a public service announcement? It was not advocating a police state. It was advocating buying a certain type of car, so people will think you’re good ‘n green. It rubbed me the wrong way too (and I wonder if VW will come to regret that commercial), but damn.”
Yes, I realize that — I was just commenting on society’s acceptance of such — if there is an outcry against the commerical, I will feel better.
— mike farmer · Feb 8, 07:59 PM · #
That commercial was creepy. It seemed to suggest that life will be just dandy in the police state as long as you do as you’re told. Very German, I guess.
It would have been a funny satirical thing if its purpose hadn’t been to sell the car that represents capitulation to the authoritarians.
— andrew · Feb 8, 08:34 PM · #
Presidents don’t give up a power exercised unchecked by a predecessor. And Sargent makes a good point: Due process of law isn’t necessarily a product of legislation or judicial hearing. Executives are granted latitude to plan policy in a number of ways. A power, granted explicitly or implicitly, will be exercised, and unless legislation or judicial decision proscribes its implementation in certain ways, it is entirely legal for the executive to decide how it will be used. While the above situation is morally fraught and certainly open to discussion on those grounds, I’m pretty sure its legality is on fairly firm footing.
Oh, and M. Gregoire? Yes, when it comes to national security, you and your compatriots are, legally, chopped liver. Well, not liver. But not exactly entitled to ALL the rigamarole. This isn’t exactly unsettled law. Even the original FISA, for example, allowed for wiretaps on calls originating from or going to someone in another country. Calls, even between American citizens, that took place entirely outside American borders are completely fair game. That’s been uncontroversial law for over thirty years. Likewise the use of information that private citizens or other governments might obtain in violation of Constitutional rights, but without operating at the behest of the U.S. government.
— Erik Vanderhoff · Feb 8, 09:27 PM · #
It seems as though some commenters are construing the president’s war powers in an effectively boundless way — that is to say, The position of the Obama Administration is that it could take out an American citizen sitting in his Paris apartment eating dinner with his kids so long as he is deemed an imminent threat to our interests. If the power to kill in declared wars goes this far it is basically unlimited — there are no geographic bounds, and all that is needed to define a combatant is the word of the president.
Also, Kristopher seems to think that this power is already sufficiently checked by other branches via Congressional oversight of the CIA. But I am talking about checking the power of te executive branch to unilaterally declare these folks guilty and approved targets for killings without any independent review or warrant or fact finding or ability to say, “no, not that guy.”
— Conor friedersdorf · Feb 8, 09:51 PM · #
We are so used to a nice orderly system of government with peaceful transfers of power, and a presumption that the president will act in the nation’s best interest and that the generals will follow their commander in chief. We take it entirely for granted, because that’s pretty much how it’s always been here. But there is no way to guarantee it will always be that way.
As a practical matter, the president’s war power is unchecked. When we elected him, we gave him the power to create nuclear winter, for cryin’ out loud. He has the power to kill billions. He has absolute power to pardon anyone (including, possibly, himself), for any alleged crime.
So yes, he has the power to kill individuals. It is indeed a scary power, checked only by the power of Congress to impeach the president, and by the power of the people to turn him out of office.
In theory you could try to stop the president from having someone killed by making a claim of violation of due process. How would that work, in practice? In theory you could attempt to prosecute the president for the murder of a citizen. How would that work, in practice?
Congress could pass a law saying the president can’t kill American citizens overseas. How would that be enforced?
You’d think a president who is bumping off an unacceptable number of his fellow citizens would be impeached, but we never know, do we?
We hand the keys to the kingdom to every president we elect. Whether we want to or not, we implicitly place our trust in him not to misuse the power we have granted him. Once we have placed that power in his hands, if he is intent on misusing it, there is little we can do to stop him.
We like to believe this isn’t so. Checks and balances and all that. But the cold reality is that a president who turns on his own people would be very hard to stop. Impossible to stop, I’d say, if he had the support of the military. A president who had truly gone to the dark side could order the execution of his political opponents. Only the disobedience of his generals would stop him.
Our common cultural beliefs in the Constitution and the right to life liberty and the pursuit of happiness are perhaps the strongest protection we have against our system devolving into something unrecognizably monstrous.
Vote carefully.
— andrew · Feb 8, 11:13 PM · #
Yes, we don’t know everything about the procedure for determining who gets put on the list. We do, however, know some things.
We know these procedures — your “due process” — are subject to bicameral oversight. We know the policy of targeted killings has passed muster with two successive administrations. We know that authorization to kill must come from the very top of the executive. We know that the targets must be abroad, and capture must be impracticable. We know that, before including him on the list, a high level determination must be made that the target is directly involved in hostilities against the US — i.e., this bad mammajamma will have defined himself, through his actions and associations, and not just through his speech, as a real and present danger to USA national security.
We know that Congress authorized the use of “necessary and appropriate force”, invoking the right of self-defense against those who pose “an unusual and extraordinary threat to the national security” of the US — i.e., Al’Qaeda beasties. We know Congress in the very same resolution acknowledged that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism” — an uncontroversial statement. We know that the revolving-door theory has been rejected. This is the idea that terrorists can be killed only when directly engaged in terrorist activity and that otherwise they are as protected as non-enemy civilians. This is the theory you seem to be fumbling at in all your talk of killed at mealtime, watching soaps, etc). Humanize them to your heart’s content, so long as they materially contribute to Al’Qaeda, they can be killed while making ice cream and kissing puppies.
We know the Supreme Court has roundly rejected extraterritorial application of the Bill of Rights. We know the critics of targeted killings regularly demure on questions of legality, for good reason, and instead choose to focus on its wisdom and morality (lack thereof). We know a scholarly consensus has been built since 9/11 that targeted killings of Al Qaeda big-wigs are legal under both domestic and international law.
And now we have an American in the game. Should we be concerned? Given all the above, I say no: I have no problem with suddenly splashing his troublesome head against a Hellfire missile. Anybody else wants to play, same thing.
— Kristoffer V. Sargent · Feb 8, 11:41 PM · #
Why do you think we “know” any of those things, KvS? I would have agreed that we “knew” those things right up until a couple of years ago when it turned out that the President was illegally wiretapping US citizens without briefing Congress or even getting retroactive warrants from the courts (even the super-secret FISA court.)
It strikes me that there’s absolutely no reason to believe that there’s any of this oversight, except in so far Obama has graciously decided their should be. If the next Republican decides otherwise, there doesn’t seem to be any way to stop him. We’ve seemed to agree, as a nation, that elections are all the “accountability moments” we’re entitled to have.
— Chet · Feb 8, 11:59 PM · #
Sorry, three successive administrations. Clinton’s was the first.
— Kristoffer V. Sargent · Feb 9, 12:04 AM · #
We’d find out the same way we found out about the wiretaps. Leaks — careerism, ambition, self-righteous self-interest, score-settling, ego, disgruntlement. You know, leaks.
Leaks are inevitable (read anybody ever). Plus, the wire-tapping thing was ethically subtle — not to you, maybe, but definitely to Us. “We” were already doing a lot of analogous surveillance. Bush just took one legal baby step too far. It wasn’t even that big a deal, ethically, as can be seen by the subsequent legalization of the Bush’s ‘illegal’ practice.
But abusing the power to kill Americans overseas? Not so ethically subtle. And from a political perspective (analytically the most important) it would be downright irrational.
Where’s the incentive to abuse? We’re talking finally arrived, self-loving, permanent-campaign politicians here. Venal, yes. Vindictive, sure. Buffoonish, most of the time. Pathological, though, not so much. Plus, you’d need a cabal you could trust. A few cabinet members, a few career bureaucrats. Methinks no way jose.
American government makes pettiness easy, and conspiracy hard. And to abuse the slaughter stuff you need a conspiracy.
— Kristoffer V. Sargent · Feb 9, 12:35 AM · #
Then we’d work with German authorities to have them arrested, or we would continue surveillance until they left the country. Hence the legal condition precedent to targeted killing, that capture be so difficult and dangerous as to be impracticable. Usually ungovernable shitholes and tribal areas where the state enjoys ein bisschen authority and even less legitimacy.
— Kristoffer V. Sargent · Feb 9, 01:10 AM · #
I agree with connor here. There seems to be congressional oversight but congress is, by it’s nature, not the kind of institution that can reliably make difficult, ethic-driven, interest-free judgements. That is process, but not due process.
I think assasination of an american citizen requires some kind of judicial proceeding at which real evidence is provided. And the proceedings of that court need to be made public after a certain (short) lenght of time, so that the court and the administration can be held accountable.
— cw · Feb 9, 02:26 AM · #
Except you don’t agree with Conor. He got all verklempt because there wasn’t any oversight at all. Remember?
I just pointed out that, yes, this “unprecedented” power is indeed checked by many someones “in another branch of government” — both branches, in fact. But no! — y’all still upset. Now it’s about preferences and levels of oversight. Goal posts, nicht va?
Look, there might be a moral case. But Conor wasn’t satisfied with a moral case. He wanted a legal case, a Constitutional case. But that’s, like, hard and shit to bone up on. So he whiffed from ignorance. Objectively like.
And no, no pity here. This is a dude who’s $70k in debt because he wanted to understand the law.
— Kristoffer V. Sargent · Feb 9, 03:46 AM · #
“I just pointed out that, yes, this “unprecedented” power is indeed checked by many someones “in another branch of government” — both branches, in fact.”
So there is judical oversite?
— cw · Feb 9, 04:36 AM · #
Not judicial oversight qua FICA or domestic warrants or whatever. It’s not active and rights-based like that. More like judicial notice of executive prerogative, coupled with realtime bicameral oversight of executive activity.
We can always amend, of course, and tinkering is not tottering, but what we have now is pretty airtight law-wise.
— Kristoffer V. Sargent · Feb 9, 06:57 AM · #
in other words, no. Congress has proven over and over again they are not adequate for this kind of job.
— cw · Feb 9, 08:17 PM · #
I kind of agree with you, cw, about Congressional oversight. In general. On this particular issue, though, I’m not worried: the dynamics just aren’t there for slippery slopes and sinister death panels and suspiciously murdered Americans abroad.
I tend to buy Kenneth Anderson’s take:
Room for improvement, but right (and legal) policy.
— Kristoffer V. Sargent · Feb 10, 12:19 AM · #
I don’t personally care much about whether the targets are American citizens.
If — and I’m not assuming that this is the desired policy outcome — if the US is willing to assassinate people we reasonably believe to be Al Quaida members in Yemen or Afganistan, then I don’t particularly think we have much moral ground to kill the British, Yemeni, and Saudi citizens but spare the US citizens.
That leads to the question of whether we can or should take assassination off the table in our conflict with Al Quada. I don’t know enough to answer that question, although I probably should.
— J Mann · Feb 16, 05:21 PM · #