The 9/14 Presidency: Obama Places U.S. Citizen On Death List

By Steve hynd

Anwar al-Awlaki is a radical Islamist cleric currently residing in Yemen. From there, he has posted fiery speeches which are aimed at, and have succeeded in, inspiring Muslims to make terror attacks on the United States. But he has never set a bomb or handled a gun himself. Oh yeah - and he's a U.S. citizen.

So now, the Obama administration has authorized the CIA to kill him, after he's been on JSOC special forces hit list for months.

The right are, obviously, cock-a-hoop, with both Ed Morrissey and Andy McCarthy crowing that it exposes the illogic of the left's position "on treatment of the enemy" as if Obama were actually representative of the Left. For both, just talking has become "operations of war" and Ex parte Quirin has become a justification for killing people, even US citizens, instead of an explicit endorsement of full military trials for unlawful combatants. And they think we're confused!

Morrissey figures most progressives will stay quiet out of support for Obama:

Had the Bush administration made this announcement, the Left would be screaming from the high heavens about abuses of power.  Some of the more intellectually consistent on the Left may still, particularly Glenn Greenwald and a few others.  However, the main reaction to this obviously correct decision will probably be deafening silence; the Right will agree, and most of the Left will hesitate to criticize Obama.   It should be an interesting test for those who have been especially vocal about trying terrorists like Khalid Sheikh Mohammed in federal court rather than in military tribunals, for it will put them in the position of demanding a Constitutional approach to foreign terrorists while tacitly approving a military/intelligence assassination for an American citizen.

But so far, at least, progressives seem to be more intellectually consistent than he gives them credit for. Even White House and Pentagon national security cheerleaders like Spencer Ackerman are leery of the legality of Obama's actions, pointing out that if one US citizen in Yemen can be put on a hit list just for talking, then the killing of other US citizens who only incite violence rather than being violent themselves, even ones still living in the US, can doubtless be given the same legal justification.

So "progressives": is it right that anyone should be put on a murder list for just talking, even or especially a US citizen? I asked that question on Twitter today, and noted that there's no penalty of death without a trial for any crime under US law, even for treason. In my opinion, there should at least be a trail in absentia first - if someone gives up their legal rights, including that of habeas corpus, by not answering a summons to that trial, then that would be their lookout and entirely legal. Here are the responses so far:

Marc Lynch: " Obama can't simultaneously declare US commitment to rule of law + carry out hits on declared terrorists outside of rule of law."

Sean Paul Kelley: "easy answers to easy questions: no! Next question please."

Bernard Finel: "Um, not without some process."

Gregg Carlstrom: "Agreed w/@SteveHynd; set up a mechanism to try him in absentia; present evidence, secure a verdict, then kill him. That's fine."

And both Marc Lynch and I noted today that even neocon Eli Lake can be right sometimes. I urge every reader to read Lake's piece for Reason today: The 9/14 Presidency.

When it comes to the legal framework for confronting terrorism, President Obama is acting in no meaningful sense any different than President Bush after 2006, when the Supreme Court overturned the view that the president�s war time powers were effectively unlimited. As the Obama administration itself is quick to point out, the Bush administration also tried terrorists apprehended on U.S. soil in criminal courts, most notably �20th hijacker� Zacarias Moussaoui and shoe bomber Richard Reid. More important, President Obama has embraced and at times defended the same expansive view of a global war against Al Qaeda as President Bush.

The U.S. still reserves the right to hold suspected terrorists indefinitely without charge, try them via military tribunal, keep them imprisoned even if they are acquitted, and kill them in foreign countries with which America is not formally at war (including Yemen, Somalia, and Pakistan). When Obama closed the secret CIA prisons known as �black sites,� he specifically allowed for temporary detention facilities where a suspect could be taken before being sent to a foreign or domestic prison, a practice known as �rendition.� And even where the Obama White House has made a show of how it has broken with the Bush administration, such as outlawing enhanced interrogation techniques, it has done so through executive order, which can be reversed at any time by the sitting president.

The font of this extraordinary authority is a congressional resolution passed just three days after the 9/11 attacks. It says, �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.�

Just as President Bush said the 9/14 resolution gave him the wartime powers to detain, interrogate, capture, and kill terrorists all over the world, so too does President Obama. On March 13, 2009 Justice Department lawyers said in a Habeas brief before the D.C. Federal Court that this resolution,  known as the AUMF, or authorization of the use of military force, granted the administration detention authority.

It�s true that the Obama administration has rejected the early Bush administration�s assertion of an almost supreme wartime executive, or that the president�s wartime authorities can overrule laws passed by Congress. Also President Obama asserts that the powers granted by the 9/14 resolution must cohere to international laws of war. But these differences are less significant than one might imagine.

A speech last month from Harold Koh, the State Department�s legal adviser, acknowledged that the international laws of war have not properly contemplated a war against a global terror network. �Those laws of war were designed primarily for traditional armed conflicts among states,� Koh said. �Not conflicts against a diffuse, difficult-to-identify terrorist enemy, therefore construing what is �necessary and appropriate� under the AUMF requires some �translation,� or analogizing principles from the laws of war governing traditional international conflicts.�

As long as the AUMF remains the law of the land, any change in the legal conduct of our open-ended, undeclared war will be, at most, cosmetic. While it�s true that President Obama appears more reluctant to use these extraordinary powers than his predecessor, he is nonetheless asserting, enthusiastically at times, that he has such powers. And because so much of the American war on terror is conducted in secret, it is difficult to know what Obama is and is not doing to wage it.

Some of us warned about this during the Bush years and again during the Democratic primaries when it became obvious that Obama and Clinton, the two frontrunners, were mostly interchangeable establishment figures. The likelihood that any president will voluntarily give up power established by the precedent of previous incumbents is vanishingly small - and thus presidential power grabs always perpetuate into the next administration, and the ones after that. We warned the Right that they might not like where Bush's power grabs ended up and there are worrying signs of where that is, now.  We warned the Left's ostriches that neither Obama nor Clinton would give up Bush's law-bending ways and thus it has proven. How many on the Left would be comfortable contemplating where a Republican president might take the precedent now afforded him by Obama? Hit lists for tea partiers or environmentalists, anyone? Obama seems to have put together a precedent to do just that, to me.

Update Glenn Greenwald:

 in Barack Obama's America, the way guilt is determined for American citizens -- and a death penalty imposed -- is that the President, like the King he thinks he is, secretly decrees someone's guilt as a Terrorist.  He then dispatches his aides to run to America's newspapers -- cowardly hiding behind the shield of anonymity which they're granted -- to proclaim that the Guilty One shall be killed on sight because the Leader has decreed him to be a Terrorist.  It is simply asserted that Awlaki has converted from a cleric who expresses anti-American views and advocates attacks on American military targets (advocacy which happens to be Constitutionally protected) to Actual Terrorist "involved in plots."  These newspapers then print this Executive Verdict with no questioning, no opposition, no investigation, no refutation as to its truth.  And the punishment is thus decreed:  this American citizen will now be murdered by the CIA because Barack Obama has ordered that it be done.  What kind of person could possibly justify this or think that this is a legitimate government power?

...When Obama was seeking the Democratic nomination, the Constitutional Law Scholar answered a questionnaire about executive power distributed by The Boston Globe's Charlie Savage, and this was one of his answers:

5. Does the Constitution permit a president to detain US citizens without charges as unlawful enemy combatants?

[Obama]:  No. I reject the Bush Administration's claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.

So back then, Obama said the President lacks the power merely to detain U.S. citizens without charges.  Now, as President, he claims the power to assassinate them without charges.  Could even his hardest-core loyalists try to reconcile that with a straight face?

Some will try, unfortunately.