War on Terror

I Could Kill You, But Then I'd Have to Keep It a Secret


On Friday the Center for Constitutional Rights and the American Civil Liberties Union, which are challenging President Obama's claim that he can order the killing of anyone he unilaterally identifies as an enemy of the United States, responded to the Justice Department's arguments for dismissing the lawsuit. The government argues that Obama's policy of "targeted killings" is a "political question" unsuited for judicial review and that allowing the case to proceed would risk revealing "state secrets." Hence Obama is not only claiming a license to kill; he is asserting that the license can never be revoked, suspended, or even examined by the courts. ACLU Deputy Legal Director Jameel Jaffer sums up the situation:

If the government's arguments were accepted, the current administration and every future administration would have unreviewable authority to carry out targeted killings of Americans deemed to be enemies of the state. While that power would be limited to contexts of armed conflict, the government has argued that the armed conflict against al Qaeda extends everywhere, indefinitely. This is an extraordinary and unprecedented claim, and one that we urge the courts to reject unequivocally. The courts have a crucial role to play in ensuring that the government's counterterrorism policies are consistent with the Constitution.

Glenn Greenwald notes that even David Rivkin, a Bush I administration lawyer who routinely defends executive power in the service of the War on Terror, thinks Obama is going too far by claiming his summary executions must remain secret. "I'm a huge fan of executive power," Rivkin told The New York Times last month, "but if someone came up to you and said the government wants to target you and you can't even talk about it in court to try to stop it, that's too harsh even for me."

The government's motion to dismiss is here (PDF). The CCR/ACLU reply brief is here (PDF). Last week David Harsanyi criticized Obama's use of the state secrets privilege to bar litigation over targeted killings. Last month I discussed Obama's use of the privilege to block lawsuits by torture victims.

NEXT: The Most Highly Improbable Lawsuit Threat of All?

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  1. What good is being president if can’t have your enemies killed?

    1. What good is being Commander-in-Chief in war if you can’t have your enemies killed.

      1. Why don’t we wait for a Declaration of War to have that conversation, hmmmm.

        1. Well thanks to the part of government that makes the rules regarding the military, the President no longer needs to.

    2. Right on! You can’t spell “executive” without “execute.”

    3. What good is being president if can’t have your enemies American citizens killed without anything resembling due process?

      1. Oh wait, I think he considers many American citizens to be his enemies.

        1. And a lot of them return the favor.

  2. It’s sort of interesting to think, given recent precedents regarding eminent domain seizures, the government’s Commerce Clause authority, ability to keep cases out of court in order to protect state secrets, and various decisions regarding the President’s ability to prosecute the War on Terror – which apply, as pointed out in the post, everywhere and always – that the machinery of totalitarian dictatorship is already substantially in place in this nation.

    If the stool of a free Republic stands on the legs of property rights, the right to trial by jury, and free speech rights, two of the three legs have already been lopped off, and the third easily could be by a revival of some sort of ‘fairness doctrine’. The only thing we can really rely on to protect us is the good will of our rulers, and the hope that no one ever rises to power who would use these powers to their fullest extent. Shame is the primary thing holding tyranny at bay, and since most politicians are shameless, that doesn’t make me feel confident.

    1. Well, I take comfort in the fact that our economic system is so fragile that it couldn’t possibly survive a transition to dictatorship.

      1. That’s so, but if things fall apart, the odds that something better will replace our current system seem low. Of course, I’m just a pessimist, so who knows?

        1. I was joking. We’re fucked one way or the other.

  3. The original SCOTUS ruling about state secrets was about hiding a flaw in piece of military equipment to keep it out of court. No? Once you set the bar that low, it’s not surpising that any President would envoke it for what they see as more important issues.

  4. “I’m a huge fan of executive power…up my butt.”

    1. “… in bed.”

  5. The only thing we can really rely on to protect us is the good will of our rulers, and the hope that no one ever rises to power who would use these powers to their fullest extent.

    So, basically, you’re saying, “We’re DOOOOOOOOOOOOMED.”

  6. It’s my country and I’ll kill if I want to,
    It’s my country and I’ll kill if I want to,
    You would kill to,
    If it happened to you!

    1. ‘Cause now it’s Sarah’s tun to kill
      Sarah’s tun to kill
      Sarah’s tun to kill
      ‘Cause POTUS came back to me.

      1. Well, we’ll see if the typical liberal terrorist is smarter than an Alaskan wolf.

  7. “I don’t understand why you libertarians are so paranoid, it is not like they are going to lock people up without a trial.”

    “I don’t understand why you libertarians are so paranoid, they are only locking up known terrorists without a trial.”

    “I don’t understand why you libertarians are so paranoid, they are only assassinating known terrorists.”

    “I don’t understand why you libertarians are so paranoid…”

    1. We only execute enemies of the state. Only enemies of the state have something to fear.

      1. Therefore, if you fear this plan, you are an enemy of the state.

        The logic is solid.

        1. “”The logic is solid.””

          It’s worked for over 2000 years.

      2. Jeezeus TrickyVictorPerlo, if you love the executive sooooo much, then why don’t you marry it?

        1. Sooooo many tyrants, so little time.

  8. Wow. A baby-boomer with power proceeding on the assumption that the rules don’t apply to them. That’s unheard of…

    1. The concept of the executive being a seperate entity which Congress can’t control existed before the term baby-boomer.

      1. Google “Steel Siezure Case”. Find the SCOTUS opinion and read it.

        1. I’m not saying it’s so. I’m saying the concept of such existed prior to the term baby-boomer.

    2. It kinda makes me long for the days when boomers used that privilege just to get Oval Office blowjobs.

  9. Meanwhile, Chinese communist elders are calling for more freedom of speech.

  10. So when Biden finds Obama’s Kenyan birth certificate, can he have Barry’s ticket punched as an active terrorist?

  11. I’m so relieved to see that the Obama administration is reversing all those horrific and unconstitutional policies and practices of the Bush administration!

    1. No – see.. uh.. he’s showing us how badly the executive branch can abuse its authority. That way the American people will pressure congress to keep the executive in-check and prevent such abuses in the future…

      It’s like the GOP starving the beast. He’s trying to starve the executive of privileges… 🙂

    2. They actually are. Bush never whacked American citizens. Now there is change you can believe in.

      1. Bush never whacked American citizens.

        Oh yes he did!!

      2. “”Bush never whacked American citizens.””

        How do you know?

        I’m not saying he did. But being that such an order would be top secret, we have no real knowledge if he did or didn’t.

    3. The sad part is I think most Obama supporters and self-described liberals believe this. They just stopped paying attention after Bush was gone. “Everything is fixed, right?”

      1. I think the standard responses are: (a) he’s betraying us progressives, which we had absolutely no warning that he would do, or (b) the conservatives are forcing him to act conservative, because if he didn’t the Republicans would win the next election, and you don’t want *that,* do you?

  12. I could almost buy into the idea of who we whack and do not whack being a political question. Military decisions have always been left up to the military. But if it is a political question, how then is it also a “state secret”? Aren’t political questions supposed to be settled by the body politic? Isn’t that what makes them “political”? You can’t very well settle a political question politically if no one knows what it is. If anything, the state secret assertion augers for judicial review. Since we can’t debate this stuff in public and thus are not subject to public oversight, we submit it to judicial oversight out of the public eye.

    1. Also, “enemy of the state” is a nebulous term.

      Are ratbaggers enemies of the state?

      1. It is a very nebulous term. You could imagine settling this politically. The President and the military would make a collective decision about whether someone had gone to the other side and give out the message like that scene from Animal House; “Neidermeyer Dead”. Then we could have a debate about it. And if people didn’t like it, they could vote against President or Congress could step in. That wouldn’t be a perfect system. But it would be a system that would provide at least some kind of oversight. But if you make it both a political question and a state secret, then no one ever knows who is killed or why or even if anyone is killed and thus can’t very well object even if they wanted to. That is no system beyond “trust us”.

        1. Even in the best of situations, people who cede power to a governmental body should never trust that body, let alone allow it to tell them to trust it.

          Have we learned nothing?

          1. “”Have we learned nothing?””

            Yes. We learn nothing, in the long term anyway. I think every generation gets a lesson plan, then the next generation throws it out the window.

        2. How about we roll with a “clear and present danger” theme.

          Maybe have limits on how long the killings can remain classified, as well.

          Even with these in place the continued expansion of executive power makes me extremely nervous. This is, I feel, is getting as far away from the republic as intended as you can get.

          Any person who is vocally and consistently against state expansion, ans state intrusion should feel the same.

          Also, the “if you aren’t doing anything wrong, then you have nothing to fear” argument doesn’t hold water with me, not one bit. We have heard the same from drug warriors and petty prosecutors for 40 years. The result: decreased civil liberties for all, even the innocent.

          1. There has to be a short limit on how long it remains classified. The people who are in charge have to know that if they fuck up, someday it will come out and they will be held responsible.

            That is the other thing that really scares me. It used to be that we held people responsible for big fuckups. If you were MacArthur and you turned tanks lose on the bonus marchers, that was it, you were done. Only a World War was ever going to give you another position of authority. Now, you can be Tim Geittner and be in charge of the New York Fed during the biggest banking collapse since 1929 and move up to Treasury Secretary. You can be Janet Reno and burn a bunch of Americans to death on national TV and still be the longest serving AG in history. You can be Louis Freeh and have the worst terrorist attack in American history on your watch and still be reappointed to run the FBI.

            Power combined with a sense of invulnerability never ends well.

            1. There has to be a short limit on how long it remains classified.

              For sure. I was thinking seven years, and only allow C&P D killings.

              Regarding your second paragraph; I would say I agree. Just look at Neville Chamberlain*. Seems that those in government are given more and more power without the corresponding increase in accountability.

              *Mentioning Neville Chamberlain reminds me that The Last Lion Vol III is supposed to be coming out next year. If you haven’t read the first two I would recommend them.

            2. You can be a SWAT member kill a few dogs and couple of innocent people, and become a Chief of Police somewhere.

    2. Why is this even being discussed? Just kill someone and as long as you keep it a secret, there’s nothing to discuss because nobody knows about it. If you can’t keep a secret, that’s your problem.

  13. What good is being president if can’t have _____________ killed without anything resembling due process?

    your enemies
    American citizens
    tax cheats
    the Chamber of Commerce
    barking dogs
    people who drive too slowly in the left lane
    kids who don’t pull their damn pants up
    anybody who files a FOIA lawsuit

    Man, I want to be President.

    1. Being an attorney who has dealt with administrative agencies for about 20 years now and having seen what government agencies will do, I most definitely would not include “anyone who files a FOIA lawsuit” in that list. Much of the time they are individuals doing very good work at exposing some pretty shitty acts to sanitizing sunlight.

      Yeah, just like just about anything else, FOIA requests can be misused and abused, but FOIA is quite often used for the right and intended purpose.

  14. Ecoterrorists must be dealt with in secret.

    1. echolocators must be dealt with in the dark

  15. Hence Obama is not only claiming a license to kill; he is asserting that the license can never be revoked, suspended, or even examined by the courts.

    And yet the Oathtakers are supposed to be the crazy ones . . .

    1. Obama did take an oath.

      Funny how people who actually take oaths, have a problem with a group called Oathtakers.

  16. It’s important that anything bad and/or illegal that the president does be kept secret. Important to the president and the people who know about the activity, that is.

  17. “Cueing Tony with a spirited Team Blue defense in 3…2…1…*

    1. Nope, not defending Obama on this one. Not even playing devil’s advocate.

      1. You could end up on the enemies list if you keep this up.

    2. Having health insurance paid for by some evil rich dude outweighs democide in the Liberal calculus.

  18. A guy runs around the streets of Moscow screaming, “Khruschev is an idiot!” (Khruschev = Soviet leader at the time of the joke)

    The guy is arrested by the KGB and gets 10 years in the Gulag for “revealing state secrets.”

    1. You know what the tallest point in Moscow is? The basement of the Lubyanka. You can see all the way to Siberia from there.

  19. Because the responsibility of having a NOBEL PEACE PRIZE means that you must KILLLLLLLLLLL

  20. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    A presidential order is not “due process of law”.


  21. lol. I can almost hear the Liberal argument now. “You object to a BLACK president killing you. You’re a RACIST!”

  22. One of the worst things we can blame on Bush: Barack Obama.

  23. Funny isn’t it, that all tyrants go through life thinking they are invinceable!

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