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March 07, 2013 1:30 PM Does the President Claim the Power to Take You Out?

By Mark Kleiman

I’ve been known to ask a snarky question from time to time, but right now I’d like to ask a completely serious question: What extraordinary power is Eric Holder supposed to have claimed for the President?

Surely it’s not extraordinary to claim that an official may kill a citizen on American soil without a warrant or an indictment: an FBI sniper can certainly shoot a hostage-taker if it seems the best way to save the life of the hostage. Is there any controversy about that? Or about the authority of that person’s supervisors, up to the President, to give the orders under which that is done?

Nor is extraordinary to claim that military force can – in extreme circumstances – be used against citizens on American soil: cf. Washington personally leading an army to suppress the Whiskey Rebellion, Lincoln ordering the attack at Bull Run, and Eisenhower sending the 101st Airborne to Little Rock. No indictments, no warrants: just the use of the military to assert government control against unlawful combinations.

Is it the combination of the specificity of a sniper going after a hostage-taker with the use of the military? If the Union Army had possessed drones, would it have been “assassination” to use one to kill Lee or Jackson – or Jefferson Davis – even away from an active battlefield? And yet that would have been the targeted killing of an American citizen on U.S. soil without any process of law.

If in fact Anwar al-Awlaki was waging war on the United States from Yemen, then I don’t see why his citizen status should have protected him from being killed, any more than citizenship would have protected an American who enlisted in the German army in one of the World Wars.

Now imagine that al-Awlaki’s base of operations had been Yonkers rather than Yemen. How would that have changed things? It would have made it much more likely that he could be captured rather than killed without undue cost. If he were walking down the street, so that he could be arrested (for murder or conspiracy or treason) or captured (as an enemy combatant), then the decision to kill him rather than giving him a chance to surrender would be unjustifiable. (Surely the mere difficulty of conducting a trial couldn’t justify it.)

If instead he were in a fortified place, or surrounded by armed men, or in a position to throw a switch setting off an explosion when the arrest attempt was made, then the practical situation would have been more like his actual situation in Yemen: killing him might have been possible at acceptable cost, capturing him perhaps not.

The demand for some sort of transparent accountability for such actions – now sadly lacking – seems to me sound, though the notion that having a judge sign a warrant would make everything better doesn’t. But to claim that killing al-Awlaki was “assassination” rather than warfare seems to me a mere rhetorical flourish unsupported by convincing argument, unless someone wants to argue that al-Awlaki was not waging war on the United States.

If Holder were claiming for the President the authority to decide, in non-exigent circumstances where arrest is practicable, that some citizen is merely better dead, that would be an outrage. (Though I’ve got a little list … .) But can someone point me to where Holder has made such a claim?

So I’m trying to figure out the jump from “people – even citizens – making war on the United States may lawfully be killed by military means, even inside the country” to “The President claims the right to kill anyone he dislikes.”

What am I missing?

[Originally posted at The Reality-based Community]

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Mark Kleiman is a professor of public policy at the University of California Los Angeles.
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Comments

  • Crissa on March 07, 2013 7:45 PM:

    As someone whose parent was killed by an officer who believed he had such authority - and the court while it agreed there was in hindsight no need did not penalize him because they decided he did have authority... I rather find this whole thing insulting.

    Today, we don't record the actual outcomes of use of force for statistics. We don't have an independent criminal court to oversee the use of force. And we don't have a court given enough jurisdiction to countermand or indict a sitting President for issuing such an order.

    Only Congress can.

    Which is why Ran Paul's filibuster was such meaningless grandstanding. Why does this restriction apply to the President, only now, and not the dozens of times a year an innocent American is killed by the police? Or the hundreds of times non-citizens are killed by American forces each year outside the US?