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Jewish World Review March 19 , 2012/ 25 Adar, 5772 Obama can kill you. So? By Jack Kelly
http://www.JewishWorldReview.com |
Attorney General Eric Holder gave a speech at Northwestern University Law School March 5 that was remarkable both for what he had to say and for how little attention it received. He said the president has the right to order the killing of an American citizen living abroad without any judicial review, hearing or trial, provided three criteria are met. Mr. Holder: "First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles." The poster boy for the new policy is Anwar al-Awlaki, an al-Qaida leader born in New Mexico. He was killed in a drone attack in Yemen last September. Few doubt Mr. Awlaki posed "an imminent threat of violent attack." But it's hard to square Mr. Holder's claim that the president alone has the right to make that determination given the Fifth Amendment to the Constitution, which declares no person can "be deprived of life, liberty, or property, without due process of law." It would be impractical to involve judges in operations that require "real time decisions," Mr. Holder said. But that contradicts his criterion that a "thorough and careful review" be conducted before the president can order the assassination of a citizen. Judicial review need be neither prolonged nor public. It's required before a wiretap can be placed on the phones of suspected terrorists -- even in emergent situations. In the absence of judicial review, the administration's self-imposed limits are "meaningless," said Jonathan Turley, who teaches constitutional law at George Washington University. Mr. Holder cited no provision of the Constitution and no decision by the Supreme Court that would justify the new policy. "We're being asked to take the wisdom of the president and his national security apparatus for granted," wrote Emily Bazelon in Slate. "When the federal government takes a bold and new step like this, testing the boundaries of the Constitution, it's crucial for Holder and his lawyers to explain how and why," she said. But the attorney general "didn't explain how the administration arrived at the conclusion that due process within the executive branch is enough," and has refused to make public memoranda from the Office of Legal Counsel which might shed light on its reasoning. FBI Director Robert Mueller said he wasn't sure whether the policy wouldn't also apply within the United States. Mr. Mueller's uncertainty is understandable ... and alarming, Prof. Turley said. "If the president cannot order the killing of a citizen in the United States, Holder can simply say so," Mr. Turley said. But he hasn't. The attorney general's evasiveness, coupled with administration assertions that the war on terror is being fought all over the world, including on U.S. soil, led Prof. Turley to conclude: "President Obama has just stated a policy that he can have any American citizen killed without any charge, without any review except his own. If he's satisfied that you are a terrorist, he says that he can kill you anywhere in the world, including in the United States." No president ever before has made such a breathtaking assertion of executive power. Not even King George III asserted the right to order the killing of citizens who have not been indicted or otherwise formally accused of a crime, noted JWR contributor Judge Andrew Napolitano,. President George W. Bush had no authority to tap the phones of foreign terrorists, Mr. Obama and Mr. Holder asserted in 2008. They said terrorism is a crime (not an act of war, as Mr. Bush maintained), so even foreign terrorists captured abroad should be tried in U.S. courts, with all the legal protections afforded American citizens. Their hypocrisy is stunning. But they're not the only hypocrites. "The reaction to what could be termed warrantless killing was a far cry from the sky-is-falling, apocalyptic rhetoric unleashed at Bush and his appointees a few years back over efforts merely to listen in on the communications of suspected terrorists through the warrantless wiretapping program," noted Josh Gerstein in Politico. Foremost among Mr. Bush's critics were liberal journalists, especially on the broadcast and cable television networks. But now that a president actually is asserting dictatorial powers, you can hear the crickets chirp. Every weekday JewishWorldReview.com publishes what many in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.
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JWR contributor Jack Kelly, a former Marine and Green Beret, was a deputy assistant secretary of the Air Force in the Reagan administration.
© 2011, Jack Kelly |
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