With the ordered killing of U.S. citizen Anwar al-Awlaki, Obama has run roughshod over the checks on his executive power.
As we now know all too well, a certain U.S. president once asked for, and received, secret legal advice from his government attorneys on how he could treat terrorists. And we know that that president’s attorneys secretly told him that the U.S. Constitution did not restrain him from taking unusually harsh action against terrorists.
We know that, based on that advice, that president secretly designated certain persons as terrorists and secretly moved full force against them. And we know that, when those alleged terrorists sued in U.S. courts to stop the president, the president sought to dismiss those cases, arguing, among other things, that these cases were – you know it – secret.
But what we didn’t know until recently is this: That certain U.S. president was President Barack Obama.
We have only learned this in the last few weeks, after the government announced that it killed Anwar al-Awlaki, a U.S. citizen living in Yemen, whom the government targeted as a radical Muslim cleric and a terrorist. We learned that President Obama received secret legal advice from his attorneys that said that he could kill al-Awlaki if he couldn’t take him alive, even without formal due process, and even in the face of U.S. and international law restricting such targeted killings. We learned that President Obama then convened a secret panel of government officials, without specific legal authorization (and leaving no public record of its proceedings), to designate al-Awlaki for targeted killing. We learned that the administration sought to dismiss a case to stop the killing brought by al-Awlaki’s father, arguing, among other things, that al-Awlaki’s designation as a terrorist was not appropriate for judicial review. And we learned, most recently, that the government succeeded in killing al-Awlaki.
How could this be? After all, there’s a legal ban on targeted killings under a long-standing executive order. Moreover, international law bans the “treacherous” killing of enemies, and U.S. domestic law has interpreted that ban to cover assassinations. And, most importantly, the Due Process Clause of the United States Constitution says that government cannot take life, liberty, or property without due process of law. Ironically, some of the very same proponents of the authority to kill al-Awlaki argued vociferously that former U.S. president George W. Bush lacked unilateral authority to torture, to render, to detain indefinitely, and to eavesdrop on alleged terrorists when those actions violated U.S. and international law. So how could U.S. and international law permit targeted killing, even as they forbid these other heinous, but lesser, acts? How could the government justify its killing of al-Awlaki?
The problem is that we don’t know. The Obama administration has shielded this whole episode behind a veil of secrecy. It has inexplicably refused to release the legal memorandum justifying the killing, even in the wake of requests by members of its own party in Congress. It has kept quiet about the secret government panel that designated al-Awlaki for the hit list. It has declined to release any hard evidence that al-Awlaki is, in fact, a terrorist. (Based on what it has said, that evidence seems quite thin.) And it successfully quashed the case brought by al-Awlaki’s father.
And now it has done it again, this time killing al-Awlaki’s 16-year-old son. Again, the administration has refused to say why, except to suggest that he was in the company of alleged terrorists.
The best we can tell, thanks to Charlie Savage’s excellent reporting in The New York Times, is that the president’s lawyers told him that he had authority to kill al-Awlaki under the Authorization for Use of Military Force, a U.S. law that was enacted soon after the 9/11 attacks, which gives the president authority to take military action against al-Qaeda and its collaborators.
But the AUMF didn’t override U.S. and international law banning assassinations. And it certainly didn’t override the Due Process Clause in the U.S. Constitution. And if it did, or if it somehow navigated those authorities, for whatever viable or non-viable reasons, the president has refused to tell us.
Through secrecy, the president effectively consolidated all power – executive, legislative, and judicial – and gave himself the extraordinary unchecked authority to take the life of a U.S. citizen. The administration secretly and unilaterally interpreted U.S. and international law, convened the secret panel, and concluded that al-Alwaki was a terrorist. And then it killed him. It did all of this while bypassing constitutional checks from the other branches of government.
This is exactly the kind of secrecy and abuse of power that Obama rightly railed against when he first ran for office. It’s exactly the kind of secrecy and abuse that our constitutional separation-of-powers is designed to prevent.
Origin
Source: the Mark
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