A Legal Way to Kill?

The Obama administration is probably right to fear the public reveal of its heretofore secret rationale for extra-judicial killing.


The White House/Instagram

When President Obama decided sometime during his first term that he wanted to be able to use unmanned aerial drones in foreign lands to kill people, including Americans, he instructed Attorney General Eric Holder to find a way to make it legal—despite the absolute prohibition on governmental extra-judicial killing in federal and state laws and in the Constitution itself.

"Judicial killing" connotes a lawful execution after an indictment, a jury trial, an appeal, and all of the due process protections that the Constitution guarantees defendants. "Extra-judicial killing" is a targeted killing of a victim by someone in the executive branch without due process. The president wanted the latter, and he wanted it in secret.

He must have hoped his killing would never come to light, because the Fifth Amendment to the Constitution could not be more direct: "No person shall be … deprived of life, liberty or property without due process of law."

Due process has a few prongs. The first is substantive, meaning the outcome must be fair. In a capital murder case, for example, the defendant must not only be found guilty by a jury, but he also must truly be guilty.

The second prong of due process is procedural. Thus, the defendant must be charged with a crime and tried before a neutral jury. He is entitled to a lawyer, to confront the witnesses against him, and to remain silent. The trial must be presided over by a neutral judge, and in the case of a conviction, the defendant is entitled to an appeal before a panel of three neutral judges.

The third prong of due process means that the defendant is entitled to the procedures "of law"—that is, in the federal system, as Congress has enacted. 

There are numerous additional aspects of due process, the basics of which emanate from the Constitution itself. Yet, the "of law" modifier of the constitutional phrase "due process" gives Congress, not the president, the ability to add to the due process tools available to a defendant. Congress may subtract what it has added, but neither Congress nor the president may remove any of the tools available to the defendant under the Constitution.

Until now.

Now, we have a president whose principal law enforcement and intelligence officers have boasted that the president relies on a legal way to kill people without the time, trouble, and cost of due process. The president himself, as well as the attorney general, boasted of this, as did the director of national intelligence and the director of the CIA. Yet, when asked by reporters for The New York Times for this legal rationale, Holder declined to provide it. He argued that the legal rationale for the presidential use of extra-judicial killings was a state secret, and he dispatched Department of Justice (DOJ) lawyers to court, where they succeeded in persuading a federal judge in New York City to deny the Times' application to order the government's legal rationale revealed.

How can a legal rationale possibly be a state secret? The facts upon which it is based could be secret, but the laws are public, the judicial opinions interpreting those laws are public, and there are no secret non-public parts of the Constitution. Yet notwithstanding the above observations, the Times lost.

The judge who dismissed the case obviously was uncomfortable doing so. She wrote: "The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself struck by a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules—a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reason for their conclusion a secret."

Two weeks after Judge Colleen McMahon begrudgingly dismissed that case, the feds decided to gloat, and so they leaked a 16-page summary of their "secrets" to a reporter at NBC News. To the federal appeals court to which the Times appealed, that was the last straw. It is one thing, the appellate court ruled, for the president and his team to boast that they know how to kill legally by finding a secret "adequate substitute" for due process and keeping the secret a secret, but it's quite another for them to reveal a summary of their secrets to their favorite reporters.

Thus, earlier this week, a three-judge panel of the U.S. Court of Appeals for the Second Circuit unanimously ordered the DOJ to reveal publicly its heretofore secret rationale for extra-judicial killing. 

Welcome to the strange new world of Barack Obama's war on terror, in which there are no declarations of war against countries that foment or harbor enemy activities, as the Constitution authorizes, and in which the president claims the powers of a king by killing whomever he wishes under a rationale that his lawyers wrote for him and that he has desperately tried to keep secret.

The Obama administration is probably right to fear the revelation of this so-called legal way to kill. The appellate court decision is a profound and sweeping rejection of the Obama administration's passion for hiding behind a veil of secrecy. But it is not a decision on the merits: It does not address whether the president may kill, and it only lifts a small corner of his veil.

We already know that behind Obama's veil lies a disingenuous president who claims he can secretly kill fellow Americans. Who knows what else we will find?

NEXT: Brickbat: Now, Hear This

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  1. The years after this administration will be interesting times as individuals with big egos start to write books, tell stories, give talks, etc. Much of the dirt under the rug will come to light.

    1. all the while Hillary telling the world, “What difference does it make?”.

    2. And for some reason, most Americans will not give a rats ass that it occurred and is likely continuing to occur.

  2. BOOOOOSSSHHHHHH!!!!11!!eleventy!

  3. I cannot believe how quick and bold Progressives have become. I never thought I’d see something like this in my lifetime. My heart goes out to the young people if we cannot stop this advance to tyranny.

    1. Remember how excited we all were to just get the damned Bush out of office?

      At least with him there the hypocrisy wasn’t so incredibly thick.

      1. I am amazed that the buyers remorse on this presidential product is not way larger

    2. And this administration tried to reserve this “right” to apply here in the USA.


  4. Obviously these judges are racist…come on!!!!


  5. “due process of law” means a trial before a neutral judge, where the accused has the right to cross-examine the witnesses against him and can subpoena witnesses in his defense. Anything short of that is NOT due process, and ordering someone killed without a conviction in a court of law by a jury, is murder.

    Everyone in the chain of command, from the private in the control room watching the video monitor and launching the missile, to the teleprompter in chief himself, is liable under the felony murder rule.


    1. Fully agreed, but who is going to charge the president with murder?

      Our Congress? The people?

      Doubtful on both parts.

    2. So you’ve got a guy who emigrated to the US at some point, became a citizen, and then moves to Yemen. In Yemen, he’s hanging out with known terrorists, posting jihadist bullshit on the internet, and you know for a fact that he’s planning some sort of terrorist attack against the US or US personnel.

      Do you:
      A: Say “fuck it” and wait until he kills a few thousand people so you have presentable evidence of his intentions?

      B. Sent a few FBI agents into the middle of a terrorist camp in Yemen and arrest him, so you can reveal your classified sources and methods to the world during trail?

      C: Turn him into a cloud of pink-mist and bone-chips with a Hellfire missile from the comfort of an air-conditioned trailer, after a thorough review of the evidence?

      D: Send in the 82nd Airborne Division and invade another country so you can kill him and his terrorist buddies in a “fair” fight by dropping a mortar on his house and turning him into a cloud of pink-mist and bone-chips, while getting a few thousand US Soldiers killed?

      The correct answer is “C” regardless of who’s in office.

      1. ‘The correct answer is *NOT* “C” regardless of who’s in office.’

        1. What exactly is the correct answer?

          1. Anon E. Mouse|4.24.14 @ 11:00AM|#
            “What exactly is the correct answer?”

            I’m not really sure, since I haven’t researched that old, worn out, just-a-piece-of-paper thing called the Constitution.
            But I didn’t have to to know that the president (regardless of who’s in office) is not allowed to simply pull the trigger.
            Is that a surprise to you?

            1. This isn’t about one person sitting in an office deciding who’s going to get shwacked today; that’s not what’s happening. There’s a complex, drawn-out process involved in targeting someone, whether you’re going to kick his door in and shoot him in the face, or take him out with a drone. It’s the military, working with the intelligence community, that’s actually targeting these people. The President, along with his legal council, approves or disapproves of an operation that has already been examined from every angle by a plethora of military JAG officers and commanders. Every option is weighed, risk analysis is performed, and at the point it gets to the President, there’s a very solid, no-bullshit reason for launching that missile. Don’t get me wrong; I think Obama is a fuck-tard, but this shit isn’t about Obama. 19 people managed to use the Constitution to effectively destroy the Constitution. At this point, we can probably get it back, but given a few more terrorist attacks and the ensuing knee-jerk panic reactions, the likelihood of that happening lessens.

              1. …”The President, along with his legal council, approves or disapproves of an operation”…

                Not his choice. Period.

              2. “There’s a complex, drawn-out process…”

                Unless that “secret” process is charging the American citizen with treason and publically trying the person, at least in absentia, and subsequently convicting said person, I call bullshit.

                1. “Unless that “secret” process is charging the American citizen with treason and publically trying the person, at least in absentia, and subsequently convicting said person, I call bullshit.”

                  He’s not even claiming “War Powers..” bullshit; he’s simply claiming the he and some folks he knows decide to off someone and no, you don’t get to know how that decision is made.
                  If that isn’t impeachable, I don’t know what would be.

                2. Yes, we should have a public trial whereby we are forced to reveal all sources and methods used to gather evidence against terrorists. Makes perfect sense.

                  As long as the end result is the vaporization of said treasonous American citizen, I don’t particularly care what “stamp of approval” is required to assuage your conscience.

                  1. “Yes, we should have a public trial whereby we are forced to reveal all sources and methods used to gather evidence against terrorists. Makes perfect sense.”

                    I believe Snowden has probably already let that cat out of the bag.

                  2. Anon E. Mouse|4.24.14 @ 2:56PM|#
                    “Yes, we should have a public trial whereby we are forced to reveal all sources and methods used to gather evidence against terrorists. Makes perfect sense.”

                    Oh no!
                    We should let idjits like you decide to kill people after a couple of drinks at lunch!

                    1. Yes, you should. That way you can continue to sit on your 300lb ass in your air-conditioned cubicle, and not have to worry about someone flogging you in the street for your religious beliefs, or lack thereof.

      2. You’d make a great stop-and-frisk officer.

        1. Yea, because wanting to kill known terrorists based in other countries, regardless of their nationality, is so much like stopping and frisking people on the streets of the United States…

          1. How do you know a U.S. citizen is a terrorist and therefore deserving of killing? “The President says so.” I guess that’s an adequate substitute for due process….

            1. Despite common belief, we don’t spend truck-loads of money on intelligence for nothing. When you’ve got imagery of a guy in a terrorist camp, emails from the same guy stating he’s going to wage “jihad” against Americans, and phone conversations between him and other known terrorists planning attacks, it isn’t a matter of “The President says so”; it’s a matter of common fucking sense.

      3. There have been what, 4 or 5 U.S. citizens killed by drones,but only one, Anwar al-Aulaqi, was specifically targeted, the others were collateral damage.
        But Anwar al-Aulaqi was a preacher, not a fighter nor a suicide bomber.
        So, where the fuck is the rush to kill this guy? His words are so dangerous that the U.S. can’t possibly wait long enough to either:
        A. Get him extradited, or
        B. Try him in absentia?
        That’s the problem with you tough on terror types: every situation is a ticking time bomb scenario; you watch too much damn Jack Bauer. Anwar al-Aulaqi was a piece of shit, and deserved to die, but even child-rapists and murderers get trials. And do you know why, dumbass? It’s so that the rest of us don’t have to worry about being assassinated by our government simply because we are accused of a crime. I’m sorry if it seems like too much trouble to you for the government to actually have to, you know, prove someone is guilty before executing them, but we all have our crosses to bear.

        1. That’s the problem with you cubicle dwellers: You’ve never been anywhere or done anything of substance, and refuse to believe that there are actually thousands of people out there that would love to drill holes in your skull with a power drill, because they sincerely believe that you are a corrupting influence on what would be a perfect world without your presence. The “rush to kill this guy” stems from the fact that he was recruiting hundreds, if not thousand of of people who are barely a step above cavemen, could give a fuck about the rule of law or the Constitution, and will happily blow themselves and the local shopping mall up, and everyone in it, if given the opportunity.

          The very suggestion that we extradite a known terrorist from Yemen demonstrates your complete ignorance, and if you think that we’d waste the time, effort, and political capital to engage in a drone strike on anyone in a foreign country without irrefutable evidence of his terrorist activities, you’re an idiot.

          1. Alright. I can safely say from Afghanistan that I’m no cubicle dweller so you can most definitely stow that shit should you respond.

            First, you have vastly overstated the problem. There may be and, in fact, probably are, thousands (if not tens of thousands) of people that would like to spend a little quality time with an Ameriki and a DeWalt. However, an astonishingly small percentage of them have the opportunity to do so and even fewer of them would have that chance if we’d just mind our fucking business.

            Awlaki was an asshole. Last time I checked, being an asshole wasn’t a capital offense. Our rush to kill him completely ignored his value as a martyr. He is far stronger in death. Don’t believe me? You’re a fool or wholly ignorant of the faith behind many of our enemies.

            It doesn’t matter if we have ample evidence of his terrorist activities. He, according to the Constitution and human decency, deserved a trial.

            We sully ourselves when we sideline our own Constitution just to put an asshole in the dirt.

            Finally, if you think there’s a long distance between the government smoking bad guys overseas and doing exactly the same in the States, I have to wonder at your ability to think critically. Make no mistake; you will see American citizens killed by “drone” strikes in the US in the next decade. I guarantee it.

            1. Are you in a cubicle in Afghanistan?

              You think I’m overstating the problem? Look what happened with one successful terrorist attack. We went full fucking retard. Another attack by an “astonishing small percentage of them” anything like 9/11, and you can say goodbye to any semblance of a Constitution: They’ll ram through laws that makes the Patriot Act and NDAA look like a really good deal.

              Fuck martyrs,fuck human decency, and fuck anyone who preaches jihad against the Western World. I’m neither a fool, nor am I “wholly ignorant” of their fucking retarded beliefs; I spent 5 years of my life in Afghanistan, and it wasn’t in a cubicle. At this point, I personally don’t care if we beat jihadists to death with the severed limbs of their own children, and I don’t give a rat’s ass what nationality they are.

              And lastly, why the fuck would anyone use a drone to kill an American on American soil without a trial. They don’t need to. We’ve got SWAT teams that are already doing that without repercussion.

      4. The guy they killed in Yemen was born in New Mexico.

        His son was also born in the U.S.

        His son was killed in a separate attack. He was 16 years old.

        1. Play stupid games, win stupid prizes…

  6. Funny how the Free Mummia crowd so heavily overlaps with those who support President Drone Strike.

    Well, not really.

  7. It is called war. The government kills lots of people during war. There is no immunity from being killed in a war by waving an American passport. Lots of Americans died in the War Between The States, lots of Americans were fighting on the other side during WWII. Lots of Americans died on the side of King George during the War of Independence. So, in fact, if you wage war on the United States, you can be killed either domestically or internationally. At least targeted killing by drones is moral, only the combatants are killed, not like Dresden, where non-combatants were the actual targets, much less collateral damage. So the precedent was set from the begining on killing Americans, during war at least. Advice to American Muslims though, don’t wage your jihad overseas as you will be killed. At least do it here where you will just be arrested.

    1. Federale|4.24.14 @ 11:32AM|#
      “It is called war. The government kills lots of people during war. There is no immunity from being killed in a war by waving an American passport.”

      Does the “war” exist wherever a president says it does?

      1. Since 1973, yes. See “War Powers Resolution of 1973”.

        1. See “Commerce Clause”.

    2. “Advice to American Muslims though, don’t wage your jihad overseas as you will be killed. At least do it here where you will just be arrested.”

      Here you admit that “jihad” is irrelevant to extrajudicial killings. So all it takes to forego due process is to see whether or not the American you want to kill is in a different country?

    3. There was and is no declared U.S. war in Yemen.

      The correct action is to do what we do with criminals in any foreign nation — the same thing we tried and failed with Roman Polanski — demand his arrest and extradition.

      1. That’s sarcasm, right? Maybe if we send a really stern letter…

        1. Those guys who killed our ambassador etal. in Libya should get the first letter!

          Whatever happened to those guys who we were promised were gonna be facing swift justice ?

          It’s almost like you can kill a US ambassador, and if it would embarrass high level TOP MEN (and woman), we will just kinda shove it under the rug.

        2. Anon E. Mouse|4.24.14 @ 2:47PM|#
          “That’s sarcasm, right? Maybe if we send a really stern letter…”

          Maybe you ought to go where governments do what they please.
          I think North Korea kills people after someone says ‘he’s dangerous’. You’d fit right in!

          1. Would it make you feel better if the government held a trial with a government judge, prosecutor, and defense attorney, waved a magic wand and said “guilty” before launching the missile? Really?

            1. yes and don’t forget the little part about being at war with a sovereign nation before we start launching missiles at them.

            2. Yes, it would. How fucking cynical are you?

  8. The writer lost me when he seemed to indicate that all of this is something different or strange about Obama. That’s utterly fantastic. Really…..

    Need I mention Bush (as well as present admin) giving BILLIONS to Pakistan….who are at the root of 75% of this fundamentalist crap? Or all our admins being buddies with the Saudi fundies?

    Given what the people of this country have been crowing for (kill them there instead of here) that the relatively low damage of drone programs in places like Yemen could pay off. Are there other alternatives?

    Funny – each time we “lose” wars, plenty of pundits are crying and saying “if only they’d suspend the laws of war and allow us freedom to kill whoever and as many others as we like, we could win”…yet some of the same idiots now want American justice in the hills of Yemen?

    We all, including the President, work within the world that we have been given…only so much latitude. If y’all want to cut the military down to 25% of it’s size (which would mean MORE drones), go out and vote and it will happen (of course, Americans would never vote for that!)….

    When speaking about the government and force it may be wise to take the views of Madison into account:

    “There never was a government without force. What is the meaning of government? An institution to make people do their duty. A government leaving it to a man to do his duty, or not, as he pleases, would be a new species of government, or rather no government at all.””

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