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October 03, 2011 11:30 AM Checks and balances

By Steve Benen

I had a lengthy chat yesterday with a good friend who’s involved with the ACLU. The topic at hand: the strike on al Qaeda’s Anwar al-Awlaki late last week.

As one might assume, my friend, who’s generally quite sympathetic to the Obama presidency, wasn’t at all pleased with the developments — when the American government knowingly kills an American citizen without due process, there’s a problem. I noted some contextual details — Awlaki left the country, became an al Qaeda leader, allegedly played some role in several terrorist plots, and practical considerations apparently made apprehension impossible — which might make the picture slightly murkier. Might. Maybe. I think.

But of all the concerns raised about the U.S. killing Awlaki, the one that struck me as most persuasive has to do with checks and balances: this kind of power shouldn’t rest in the hands of one person sitting in the Oval Office. There must always be checks and balances, layers of oversight and accountability.

Kevin Drum had a good item on this over the weekend.

As it happens, I don’t think the Awlaki precedent means that President Obama is going to go hog wild and start mowing down Americans overseas. I don’t think that President Rick Perry would, either. But there are good and sound reasons that presidents are constrained in their ability to unilaterally kill U.S. citizens, regardless of where they live, and we allow these bright lines to be dimmed at our peril.

Unfortunately, the war on terror has made poltroons out of every branch of government. The president hides behind the post-9/11 AUMF, using it as a shield to justify any action as long as it’s plausibly targeted at al-Qaeda or something al-Qaeda-ish. Congress, which ought to pass a law that specifically spells out due process in cases like this, cowers in its chambers and declines to assert itself. And the courts, as usual, throw up their hands whenever they hear the talismanic word “war” and declare themselves to have no responsibility.

I realize that when it comes to national security and the use of military force, there’s one commander in chief, and a variety of weighty decisions will rest on his or her judgment. But there are, and should be, limits. There must be.

I can’t speak with any authority as to whether the Awlaki killing falls outside those limits. Glenn Greenwald and others made a strong case on Friday that it does, and they may well be right.

What I’d like to see is the legislative branch do what it’s supposed to do: draw clear lines. In this case, the executive branch presented a rather bold proposition: it saw the evidence, it saw the intelligence, and it made a judgment call about a military strike. It’s not inconceivable to me that the strike was justified based on limited national security options.

But when there are questions about the scope of presidential power, our system works best when they’re answered, not ignored. In this case, as a political matter, I imagine many in Congress will be pleased that the administration killed a prominent figure in al Qaeda, but many in Congress should at least be prepared to explore what transpired, and consider whether this much power should rest in the hands of one individual.

If the legislative branch lets this go without so much as a hearing, the scope of presidential power will grow in unhealthy ways. It’s never surprising when the executive claims expansive authority over national security — administrations have been doing this for generations — but it is surprising when Congress simply washes its hands of the subject.

If President Obama blurred the lines last week — and by all indications, he did — it’s up to lawmakers to make them clearer. They have a responsibility to do so quickly.

Steve Benen is a contributing writer to the Washington Monthly, joining the publication in August, 2008 as chief blogger for the Washington Monthly blog, Political Animal.

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  • Okie on October 03, 2011 11:38 AM:

    Does it really make THAT much difference whether or not he target happens to be an American citizen? Killing (assassinating?) a foreign national is still an act of war - or murder, if you prefer that interpretation.

    I approve of taking out these bad guys, but I also agree that you ask a tough question. In cases such as this, I can't imagine a suitable checks-and-balances method. A Congressional Intelligence Committee - run by Republicans?

  • Wapiti on October 03, 2011 11:42 AM:

    The previous administration lied their asses off to take us to war in Iraq.

    The DoD and Intelligence agencies have not noticeably been changed since that event.

    Are you sure that everything you've heard about this case is the truth? Why?

    I want judges involved before the Executive Branch executes people.

  • j on October 03, 2011 11:43 AM:

    Over the weekend a suspect in a killing in NC apparently was in California, where he was hunted and gunned down and killed - this happens all the time in this country, why are the police allowed to use guns against people who at times are not armed and no one pays any attention.
    Sometimes there are a dozen police against one man, this one was shot 7 times.

  • Stuart Shiffman on October 03, 2011 11:43 AM:

    The problem is not the target, the problem comes from the dynamic of defining "war." In World war II there were Americans who returned to Germany to fight for "the Fatherland." Does anyone argue that they should have been treated as American when they were captured. Of course not.

    If we are at war, the difficulty is defing who we are at war with and the scope of that war. For me these decisions must be made on a case by case basis. I am comfortable with what was done here. making iron clad rules in the War on terror is impossible. Introducing partisanship to the debate makes it even more difficult.

  • Lifelong Dem on October 03, 2011 11:49 AM:

    If memory serves, the legislative branch ceded this type of authority to the executive in the reauthorization of the PATRIOT Act. Again, I'm working from memory, but I believe that reauthorization included a provision allowing the President to declare a US citizen to be an enemy combatant. No legislative or judicial review was necessary. Once that declaration is made, the enemy combatant loses all rights of citizenship.

    Our national leaders, including Congress, went full-tilt crazy after 9/11.

  • Mike on October 03, 2011 11:51 AM:

    I think the other question to ask is: If an American citizen leaves the country, raises an army, and attacks the US, is it okay to kill him?

    I'm sure that Obama would much rather captured al-Awlaki, tried him, and locked him up for the rest of his life, but, as you point out, was likely not possible.

    The question you should probably be debating is at what point does a person become so dangerous an enemy that he loses his right to due process?

  • Danp on October 03, 2011 11:51 AM:

    What I’d like to see is the legislative branch do what it’s supposed to do: draw clear lines.

    I disagree. Assume that assasinating al-Awlaki was illegal. Obama broke the law. If he had the concensus of the intelligence community, the agreement of the Congressional leaders, and a sincere belief that taking this action will prevent many more deaths, then he should do it. The absolute last thing in the world we should be asking for is for this disfunctional congress to outline every single exception to the rule.

    There is such a thing as prosecutorial discretion, and I wish people would have made this argument about waterboarding. Where was that ticking time bomb scenario you keep talking about? Did you learn anything that was confirmable and extensively lifesaving? Did you have enough reason to think you did?

    To those who would interpret my opinion as "the ends justifies the means", I would add this. Speeding and jay walking are illegal, but we don't prosecute people who do these things to rescue someone who appear to be in peril, even if it turns out they are only having anxiety attacks.

  • Ben on October 03, 2011 11:53 AM:

    WTF folks? These people killed more than 3,000 innocent civilians, and we're discussing if taking them out is unconstitutional. You gotta be kiddin'.

  • Anonymous on October 03, 2011 11:58 AM:

    I've always been of the opinion that assassination, targeted or not, is immoral. But on legal grounds, I wonder if this is an assassination in that sense, a term usually reserved for those killed as politicians or heads of state, like JFK and Anwar Sadat.

    Matt Yglesias has this rundown:

    Section 349 of the Immigration and Nationality Act (8 U.S.C. 1481), as amended, states that U.S. citizens are subject to loss of citizenship if they perform certain specified acts voluntarily and with the intention to relinquish U.S. citizenship. Briefly stated, these acts include:

    1. Obtaining naturalization in a foreign state (Sec. 349 (a) (1) INA);
    2. Taking an oath, affirmation or other formal declaration to a foreign state or its political subdivisions (Sec. 349 (a) (2) INA);
    3. Entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S. or serving as a commissioned or non-commissioned officer in the armed forces of a foreign state (Sec. 349 (a) (3) INA);
    4. Accepting employment with a foreign government if (a) one has the nationality of that foreign state or (b) an oath or declaration of allegiance is required in accepting the position (Sec. 349 (a) (4) INA);
    5. Formally renouncing U.S. citizenship before a U.S. diplomatic or consular officer outside the United States (sec. 349 (a) (5) INA);
    6. Formally renouncing U.S. citizenship within the U.S. (but only under strict, narrow statutory conditions) (Sec. 349 (a) (6) INA);
    7. Conviction for an act of treason (Sec. 349 (a) (7) INA).

    Yglesias comments: "What Awlaki’s done is basically in the spirit of items 1-4 on the list. But it doesn’t count, because al Qaeda’s not a foreign government. The correct way out of this seems to me to amend the relevant section of the Immigration and Nationality Act such that swearing allegiance to al Qaeda can count as an expatriating act in the same way that defecting to North Korea would. Then you would need a quasi-judicial process through which an evidentiary determination could be made that someone has, in fact, expatriated himself. It’s less fun than ad hoc determinations by the DOD and the White House staff, but it would sit a heck of a lot easier with me."

  • c u n d gulag on October 03, 2011 11:58 AM:

    Revenge isn't justice, it's just revenge.

  • stevio on October 03, 2011 12:04 PM:

    If Bushit can kill a million Iraqis and the Justice Dept. let him off Scott-free what makes anyone think Obama shouldn't be let off the hook too? Traitors lose their citizenship rights when they join terror groups and try to kill fellow Americans.

    Trial by a jury of his peers means Anwar al-Awlaki's jury would have to consist of traitors...

    I know that's far flung but traitors deserve what they bargain for. Either change the name of the struggle from a war on terror, or eliminate the culprits one by one.

  • zandru on October 03, 2011 12:08 PM:

    "These people killed more than 3,000 innocent civilians", according to Ben.

    Which people are these? The folks who killed the civilians (and Pentagon staff) in the 9-11 are DEAD. Are you using "these people" in a collective guilt sense?

    If so, then by implication, all Americans are responsible for the killing of literally hundreds of thousands of Iraqis and tens of thousands of Afghans - etc. So any of us can legitimately be targeted and killed on sight, right?

    The thing about the traditional American justice system is that it attempts to determine and assign responsibility to individuals. We cannot get sloppy and just say "all those people" are guilty, so let's just assassinate all the suspects.

    And calling the program to stop terrorists a "war" doesn't make it one, any more than calling a tail a leg does (per A. Lincoln). It's a police-style problem.

  • Josef K on October 03, 2011 12:09 PM:

    If President Obama blurred the lines last week — and by all indications, he did — it’s up to lawmakers to make them clearer. They have a responsibility to do so quickly.

    Agreed. My main objection to this has always been the underlying policy, not the target or the reasons he was targeted. I just don't hold much hope that this Congress can or will do anything of the sort; Speaker Boehner has no control over his caucus, who no doubt think this was a good thing.

  • DS on October 03, 2011 12:12 PM:

    I'm curious about your argument that the ability to issue orders like this should not rest solely in the hands of the President. So who else should be involved? The Vice-President? Secretary of State? The Joint Chiefs? I can tell you that as someone who grew up around military officers that they usually like to use military force whenever possible and shoot first and ask questions later. This would perhaps lead to more - not less - extra-judicial killings. You can't have a committee that demonstrates the slightest bit of dissent when issuing orders like this. The President is the Commander in Chief and as a result he has to face the consequences of his actions.

  • Gus on October 03, 2011 12:41 PM:

    Given the unhealthy state of political power in this country, how do you suppose anything of value is going to come of Congressional hearings into what Obama did, does or proposes to do?

  • anandine on October 03, 2011 12:45 PM:

    Just imagine Dick Cheney having that authority.

  • Old Uncle Dave on October 03, 2011 12:45 PM:

    Picture a President Bachmann as the Red Queen,shouting "Off with his head!" and "First the sentence, then the verdict!"
    The US has gone down the rabbit hole and may never find its way out.

  • theAmericanist on October 03, 2011 12:47 PM:

    Steve, not for the first time, you're fuzzy. You're not clear on what you object to, so you're not clear on what you want ... except more fuzz.

    1) The law is actually quite clear -- the President has the authority, even the obligation, to kill people whom he knows to be actively organizing attacks on Americans. If you have a problem with THAT law, say so. Cuz if you DO have a problem with the actual law involved, you're saying that the President does not have the authority to protect us against our enemies.

    You really believe that?

    2) It is hard to tell, because your opinion is based on jello (not to mention the ACLU guy, whose argument IS jello), but you MIGHT be trying to argue from facts, rather than the law. If that's the case, you should actually DO it.

    3) Al-Awlaki counseled several of the 9/11 guys -- whom he first met in San Diego, and who then prayed at his mosque in Falls Church. The FBI questioned him about it after 9/11, couldn't get anything useful -- and kept investigating it. THAT'S when -- and why -- he fled the country. Beginning before he left the US, and continuing while he was in Yemen (excepting while he was in jail there), he continued to counsel Major Nidal Hassan, who killed 13 Americans at Fort Hood, Umar Farouk Abdumuttalab (who tried to blow up an airliner), Faisal Shahzad (who tried to blow up Times Square), and Rajib Karim, convicted on four counts of planning a 'spectacular' terrorist attack on British Airways. In the first two cases, al-Awlaki's role was established IN COURT as probable cause, in the latter, his role was part of the evidence leading to conviction and sentencing.

    So it's a simple question: what is it that you want to see, which wasn't established to your satisfaction here?

    4) Answer those three, and you may be able to focus on whatever it is you think you're saying: everything you claim to want (Congressional authorization, adjudication of the facts by the judiciary, etc.) was already established in this case.

    So WTF are you complaining about?

  • DenverRight on October 03, 2011 12:52 PM:

    If President Obama blurred the lines last week - and by all indications, he did - it's up to lawmakers to make them clearer. They have a responsibility to do so quickly.

    I agree that the lines are blurred, but not that the legislature is the remedy.

    Every terrorist on the FBI's Most Wanted Terrorists list has been indicted by a federal grand jury in a US District Court for alleged crimes of terrorism. They are fugitives being sought by the government. Unfortunately, Anwar al-Awlaki was on the government's "kill list," apparently with standing orders to kill him when the opportunity presented. Not the Most Wanted Terrorists list.

    The simple solution would be to have standing indictments from an appropriate judicial body on the fugitives of the "kill list." This would force a review by a group outside the executive branch, but we only need to look back at history to realize this happened all the time. In the 19th century many warrants were hung on post office walls with the famous description, "Wanted: Dead or Alive."

    This simple process is already operating at the federal level, with the help of federal grand juries and courts ("Most Wanted Terrorists"). It's not a question of right or wrong - it's a question of due process.

  • theAmericanist on October 03, 2011 12:58 PM:

    Folks, this WAS adjudicated. Al-Awlaki's Dad (and the ACLU) tried to stop the kill or capture order in court. They lost.

    Here is one reason why: http://www.lawfareblog.com/wp-content/uploads/2010/09/Exhibit-1.pdf

  • SYSPROG on October 03, 2011 1:03 PM:

    If President Obama blurred the lines last week - and by all indications, he did - it's up to lawmakers to make them clearer. They have a responsibility to do so quickly.

    Fine. This is something that should be done and SHOULD HAVE BEEN done during BUSHCO. So now with the most politicized legislature in decades you want to DEFINE PRESIDENTIAL POWERS? REALLY? Aside from sucking up the oxygen in the Presidential campaign, it will be Dems being Dems. 'We're BETTER than the other guys, so we'll stop, review and lose'.

  • Three Words: on October 03, 2011 1:08 PM:

    The Civil War.

  • golack on October 03, 2011 1:23 PM:

    Bourne Identity
    The Star Chamber
    The Pelican Brief

  • MBunge on October 03, 2011 1:27 PM:

    "If President Obama blurred the lines last week — and by all indications, he did"


    As others have pointed out here and elsewhere, the President really didn't blur the lines in the military strike on al-Awlaki, no matter how much Greenwald and company catterwall about it to the contrary. One can imagine a case where the lines would be blurred, but it's not this one.

    Ever wonder why there are so many people in prison in the U.S.? A big factor are the mandatory minimums and other laws passed in reaction to liberals like Greenwald who seemed bound and determined to not only do nothing to confront soaring crime rates in the 1970s, 80s and early 90s, but actually seemed committed to helping the criminals get away with their misdeeds.

    Mike

  • Josef K on October 03, 2011 4:02 PM:

    From MBunge at 1:27 PM:

    As others have pointed out here and elsewhere, the President really didn't blur the lines in the military strike on al-Awlaki, no matter how much Greenwald and company catterwall about it to the contrary. One can imagine a case where the lines would be blurred, but it's not this one.

    Please cite the relevent provisions in the US Code that remove the need for trial prior to execution of US citizens. That's the line in question, not whether or not al-Awlaki deserved death.

    Ever wonder why there are so many people in prison in the U.S.? A big factor are the mandatory minimums and other laws passed in reaction to liberals like Greenwald who seemed bound and determined to not only do nothing to confront soaring crime rates in the 1970s, 80s and early 90s, but actually seemed committed to helping the criminals get away with their misdeeds.

    I'm trying to discern the connection between this non sequitor and the matter at hand, but am coming up empty. I can only conclude there isn't one and you're fine with execution-without-trial. It would save the rest of us headaches if you'd just say that and not try to demean Greenwald.

  • theAmericanist on October 03, 2011 4:54 PM:

    Public Law 107-40, 115. Stat. 224, Section 2, A:

    "That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

    How's that remedial reading class coming along, K?

  • Josef K on October 03, 2011 5:27 PM:

    From theAmericanist at 4:54 PM:

    Public Law 107-40, 115. Stat. 224, Section 2, A:

    "That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

    Bolding mine, which I read as limiting this AUMF's scope and scale to Bin Laden's immediate network. Let me anticipate the argument that the second bit about "in order to prevent any future acts of international terrorism" includes all of Al Qaeda, which is fair enough interpretation.

    But then again, as I stated in a previous thread, this is all of secondary concern to my original criticism.

    How's that remedial reading class coming along, K?

    Better than your reading comprehension, it seems. Again: the underlying policy that led to this action runs counter to our country's core values, irregardless of the legal authority behind it. It should not have been contemplated, never mind initiated, as it puts a dangerous precedent into place.

  • theAmericanist on October 03, 2011 5:57 PM:

    Again, your reading difficulties are compounded by your lack of knowledge about the facts: al-Awlaki met several of the 9/11 hijackers in San Diego months before the attack. When they came to the DC area, they prayed at his mosque.

    The FBI interviewed him immediately after 9/11, and couldn't get anything useful. (I interviewed him not long after that, and got crucial stuff -- but I wasn't trying to build a criminal case.) They kept his file WIDE open -- which is why he fled the US in 2002.

    So that you read the law as limited (which can get you a cup of coffee at Starbucks, if you bring $4, too) to bin Laden's "immediate network" simply brings you back to the facts that you know so little about.

    You keep insisting -- that is, when folks force you to be articulate about your stoooopidity -- that "the underlying policy ... runs counter to our country's core values."

    Um, no. It doesn't.

    Both the law and the facts are very clear that the President had the authority -- in fact, the obligation -- to kill this guy before he organized yet another attempt to kill Americans in large #s. Even under your own reading of the law, the facts establish that.

    Since killing al-Awlaki was an intelligent and courageous act, it may violate YOUR values, K: but America is made of sterner, smarter stuff.

  • MBunge on October 03, 2011 6:27 PM:

    "I'm trying to discern the connection between this non sequitor and the matter at hand, but am coming up empty."


    The connection is that, just as liberals empowered ridiculous conservative responses to crime by simply refusing to offer the public reasonable alternatives, liberals who tell the public that we can't kill self-professed terrorists who threaten America simply and entirely because those terrorists have U.S. birth certificates will be so spectacularly unpersuasive that those liberals will actually be opening the door to the very civil liberties abuses they supposedly care about.

    Mike

  • theAmericanist on October 03, 2011 6:35 PM:

    Amen.

    I

  • HMDK on October 03, 2011 9:15 PM:


    "The connection is that, just as liberals empowered ridiculous conservative responses to crime by simply refusing to offer the public reasonable alternatives, liberals who tell the public that we can't kill self-professed terrorists who threaten America simply and entirely because those terrorists have U.S. birth certificates will be so spectacularly unpersuasive that those liberals will actually be opening the door to the very civil liberties abuses they supposedly care about."

    You're absolutely right.
    Let's kill Pat Robertson at ONCE!

    You have a strong bigoted emotional response behind you, true. What you don't have is actual respect for democracy and the law.
    Once again we have idiots like you proclaiming that if we don't surrender what we should ACTUALLY be fighting for, you know, like DUE PROCESS, then the always shadowy enemy will win. And the enemy is always there. Because there always WILL be enemies, no matter what.
    But giving up the actual differences between us and them.. well, what's the point?

  • theAmericanist on October 03, 2011 10:24 PM:

    Um, HMDK, you're confusing actually having enemies with NOT having due process.

    Folks keep noting that there was a great deal of process in the al-Awlaki case, and that the law is not what you hallucinate it to be.

    It'd help if you, like, occasionally noticed.

    Take your notion of 'actual respect for democracy and the law..." It has three parts: respect, democracy, and the law.

    I quoted the relevant section of the law -- passed by Congress, signed by the President. When did that stop being democracy? Put another way, when did it cease to be worthy of YOUR respect?

    Note also that we're talking about the actual LAW -- which, as noted, is a democratic act that you don't respect. Nor is the law in this case an abstraction, a form of words, simply a question of what the Congress enacted, and the Executive carried out: there's that third branch, what's it called? The one that under the law establishes facts?

    Let's count 'em off: probable cause (sufficient under the law for 'kill or capture') of al-Awlaki's role was established in 1) Major Hassan's ongoing trial for killing 13 soldiers at Fort Hood, and 2) Umar Farouk Abdulmuttalab's ongoing trial for trying to blow up an airliner; then evidence of al-Awlaki's organizational role in active plots to kill large #s of Americans was entered into court, under the rules of evidence with the right of cross examination in 3) Faisal Shahzad's sentencing for trying to blow up Times Square, and 4) the 4-count conviction of Rajid Karim in the United Kingdom.


    And oh, yeah: there was also a Federal court that heard al-Awlaki's father and the ACLU's challenge to the kill or capture order -- and turned 'em down flat. That's FIVE -- count 'em, FIVE -- expressions of an independent judiciary, following on the Congress writing a law and the President signing it.

    Who in these threads respects democracy and the law -- you? I don't think so.

    Try looking at the facts, since your grasp of the law (much less democracy) is so shaky:

    I quoted al-Awlaki's emails to Karim. Ya wanna suggest any other explanation of 'em, except that the guy was actively organizing attacks on Americans?

    Since Yemen tried to arrest the guy last year and couldn't because his bodyguards were better armed (and motivated) than the Yemeni government forces, ya wanna explain how arresting this guy was an option?

    Al-Awlaki wasn't some random guy that shadowy forces (ooh, there will always be THOSE, huh? take off the tin foil hat, willya?) picked to be our enemy.

    He really WAS our enemy. You might usefully take note -- or, hell, for that matter, take yer shot, DISPUTE it -- cuz dat's da fact.

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