From a friend’s Google Buzz feed; edited only for clarity and to correct both of our typos.
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B: Link: The Vindication of Dick Cheney – Glenn Greenwald – Salon. “Obama has won the War on Terror debate — for the American Right. And they’re quite appreciative.”
Me: This isn’t entirely fair. In a lot of cases — indefinite detention — Obama walked into the Oval to find his hands tied to the wheel. He can’t release some of the prisoners, and he can’t try them, because Bush made that impossible through torture. The ripple effect of some of Bush’s errors bars Obama from their redress. Similarly, if he hasn’t won the debate yet, or brought the plan to consummation, Obama has carried water for the notion that terrorists can and should be tried in courts, not in military commissions. Where Congress has tried to stop him from doing the same, he’s erased such intrusions into executive power, which can be used for good, by signing statements.
That said, material distinctions between actually enacted policies abound. The end of torture and blacksites/rendition erases two of the very worst abuses of the Bush years. The Terror Surveillance Program operates, in a watered down form, now by statute or with Congressional consent. The distinction between the substantive programs may be minimal, but the distinction in manner of execution is vast, material, and rolls back the notion of the imperial presidency.
The list goes on. And targeted killing is justified. There, I said it.
J: <Gasp> Of American citizens?! Without trial?!
Me: That’s deeply troubling and there’s no denying it. But the one situation that I know you’re referring to is excused by the battlefield nature of the execution. The wartime paradigm doesn’t always apply — and again, Obama, unlike Bush, has not insisted that it does — but in some cases, it’s quite apt. As it is here.
Take it by analogy. You’re a sniper in World War II. Approaching Berlin, you see your old neighbor, a citizen, at the table with Hitler, planning the invasion of England. What do you do? You take the shot. You don’t commit an entire battalion to killing Hitler, but taking your neighbor alive for a trial whose outcome is a foregone conclusion. Obviously if the question is a predator strike against a citizen driving down the Merritt Parkway, different analysis. Or a citizen hanging out at a cafe in Kabul.
J: Actually, it’s far away from the battlefield. And Anwar al-Awlaki, while preaching death to Americans, hasn’t been proved to actually have killed anyone. And as for assassinating Hitler, see Executive Order 11905 5(g) “Prohibition on Assassination. No employee of the United States Government shall engage in, or conspire to engage in, political assassination” updated to Executive Order 12333 2.11 “Prohibition on Assassination. No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”
If the President wants to change the rules, he should draft a new executive order.
Me: Eh. Those executive orders have for a long time been subordinated to the sovereign, UN-recognized right of self-defense. There are ancient OLC memos I can pull if you really want it, but basically, since about the time the order was drafted, the US has construed these orders so as to preserve assassination in the name of self defense. That’s to say, it’s not original to Obama, or Bush, or Clinton, or the earlier Bush, or Reagan… and unreasonable to think he’d change it.
J: Everything I can find says our ban on assassination remains in effect today. The official line on bombing the palaces of Qaddafi and Saddam are that we were targeting command and control centers, not the actual leaders.
Me: You have to understand the way the executive branch works, in its own twilight world of quasi-law. And, the Parks memo [construing killing for self-defense as not assassination, and therefore not banned. –Ed.]
J: The right to issue executive orders isn’t explicitly granted in the Constitution, so I’m guessing your argument is that the President can do whatever he pleases, regardless of what executive orders are already “in effect”? I mean, all he has to do is issue another one.
Me: The lack of a textual basis for executive orders is irrelevant; but it stems from the vesting clause (“The executive Power shall be vested in a President of the United States of America”) and the take-care clause (“he shall take Care that the Laws be faithfully executed”), and is the way the President states a policy preference for his officers, appointees, and the executive branch, as he’s entitled to do. The Parks memorandum is a construction of the executive order, not a supercession of the same, one upon which the President is entitled to rely, making repeal unnecessary.
J: So Hitler is an okay target because he wears a uniform, and Anwar al-Awlaki is okay because he’s a terrorist. But al-Awlaki is still an American citizen.
Me: Sure. But his designation as an agent of a foreign power, working against the United States, was ratified by the National Security Council, the President, the Treasury, and buttressed by foreign decisions, making him a military enemy whose execution may be carried out in line with the 2001 AUMF.
I’m not saying it’s an ideal situation. Just that there’s literally no other way to handle it. Did you see the West Wing season 4 episodes about the Shareef assassination?
J: Yeah, that’s exactly what I was thinking about, and it was decided that bumping off Shareef was illegal (mostly) but in the interest of the greater good, and so was kept secret.
Still, it’s pretty chilling that our government could designate any of us terrorists and then direct our killing (provided we were overseas) without judge, jury, or trial.
Me: Oh, it’s probably illegal under international law (which I think was the conclusion), no doubt :). I think it’s square and good under U.S. law, and in any event, no-one but Al-Awlaki has standing to challenge it.
But yeah, not a great thing, and a sad commentary on the world, but it’s the least bad solution. I’m comfortable that the Obama administration has minimized rather than maximized (like Bush) these circumstances where, really, we have to place our complete trust in the executive.
J: Well, not even Bush authorized assassinating American citizens. And Obama has dramatically increased drone attacks in Pakistan (though, with the private tacit permission by the Pakistani government, which continues to publicly condemn them).
What’s an example of the current administration minimizing circumstances where we have to place complete trust in the executive?
Me: To be fair, nor did Bush ever have cause to seek assassination of citizens. He didn’t confront someone like Al-Awliki. This is a unique problem. And, I have no problem with Pakistani Predator strikes, either. Especially with Pakistan’s consent, that IS the battlefield.
Well, for an example, most clearly, look to the Terror Surveillance Program. Kicking the issue to Congressional oversight is a big move, and a big rebuke to Bush.
J: He did confront al-Awliki under Bush, and the FBI decided he wasn’t actually a threat.
Me: Threats change! This one has. And refusal to re-start the secret side of the program, as preferred by Bush = letting it remain with Congress.
B: An executive order to kill an american citizen without due process makes us no better than Iran or North Korea. In spite of your insistence otherwise, this is not in the context of the battlefield–an executive order would hardly be necessary for that.
I’m saddened you’re going to back Obama on this one. As for the Pakistani Predator strikes, they have been without Pakistani consent, which has been the point.
Obama is certainly an improvement over Bush, but in the area of civil rights it’s such a small fraction of what was promised which was itself a small fraction of what should happen. Unless I see a serious change on these issues I will not be voting for Obama in the future.
Of course, Senator Obama basically voted for the Terror Surveillance Program once he’d wrapped up the Democratic nomination, and the President’s administration has continued Bush’s defense of it in the courts.
I must have missed with Obama kicked the issue to Congress…when was that?
A: I’m not backing Obama. I’m backing the way the rule of law has built up around national security structures, in its least bad and most tenable form. It’s ugly, sure, but what is the alternative?
B: I’m not interested in whether it’s legal or not. It seems like a blatant due process violation to me, but that’s not the point. The alternative is that the Obama administration not issue such despicable orders.
A: B, of course, “not issue such … orders” is not an answer to the larger question. That’s the point. This is ugly, but the other plan is, “wait and see.” That might work with Al-Awliki. But will it always work?
B: Yes, it will always work. I would much rather die in a terrorist attack from an American citizen than to live in a world where said citizen was pre-emptively murdered by his government without due process.
Apparently a lot of you have no idea what it means to live in a free country.
N: Says the guy that wants free government managed healthcare. [This guy is promptly ignored, thankfully. – Ed.]
A: And you may have no idea what it means to live in the 21st century :-/. There is no freedom to, by cover of citizenship, defect, support foreign enemies, and then expect continued safety.
B: There is a freedom to not be executed by your government without due process.
A: The former subsumes the latter; or, rather, the two are not in conflict, and Al-Awliki’s case is controlled only by my principle.