Erasing rights

From the "Department of Justice White Paper," published by NBC News, comes precisely the kind of executive unaccountability that the Founders not only feared, but anticipated:

Were the target of a lethal operation a U.S. citizen who may have rights under the Due Process Clause and the Fourth Amendment, that individual's citizenship would not immunize him from a lethal operation.

Yet it was Congress that "authorized the President to use all necessary and appropriate force against ... al-Qa'ida and its associated forces," and it's only Congress, realistically, that can de-authorize him.

U.S. presidents do not relinquish acquired powers. It's neither in the nature of the beast nor his office. The Founders understood that, and, as mentioned, they anticipated and feared it, although their fears were tempered by the counterbalance of a responsible, conscientious Congress.

And there's the modern rub. 

Comments

[Jim Milstein]

Alas.

At O's 1st Inauguration I knew that he would break my heart and that he would do it by not renouncing the seizure of powers to the presidency done by his predecessor, the presently invisible Bush 2.

Otherwise, he's likable enough.

[pamelabrown53]

@Jim Milstein:

IMO, presidents are too often tasked with making the least bad decision. How else would you comprehend FDR imprisoning Japanese-Americans in WWII?

It's not about "renouncing power" as much as bearing the weight of keeping America safe.

That said, I believe the congress has abdicated its responsibility and only they can reclaim it (with our activism). Repeal the AUMF, codify into law the who, what where, when, why and how of who gets classified as an imminent threat. This allows orgs. like the ACLU to bring lawsuits re: constitutionality.

End point? All 3 branches of government are involved.

[Marc McKenzie]

@PamelaBrown: Well said. So long as the AUMF remains in effect, then this will happen. Congress has abdicated its responsibility (something that a certain Mr. Greenwald has failed to notice), and it's up to them to fix that error.

[Turgidson]

I'll be interested to see if any tell-all memoirs surface about the first 1-2 years of the Obama administration after they've left office and things start getting declassified.

We had a reasonably civil libertarian-sounding candidate (at least by the major parties' standards) who once in office continued or even broadened many (but not all, fortunately) of the Bush era's most dubious practices and justifications.

Why did they go this route? Was the campaign talk always just talk? Did the idealism Obama seemed to have get punched so hard in the face once he started getting the daily briefings that he became a believer in the unitary executive on coldly pragmatic grounds? To what extent did the fact that the economy was the dominant issue of the time allow a more honest hearing about the nastier parts of the Bush (and now Obama) era security apparatus to be pushed off to a future date that likely will never come?

I hope, some day, some sunlight gets put on that period in particular. If Obama went this route, I have little hope that any president who can actually get elected will voluntarily cede executive power in this realm. While I have some amount of trust in Obama to exercise his authority with a cool head, I have none with respect to, say, President Christie/Rubio/Jeb.

[Peter G]

To an outside observer this is a fascinating excursion in the lack of self awareness. To be precise the administration has taken the view that they do not need intelligence that a given designated terrorist is actually targeting US citizens to merit the attention of a drone. That does not mean they do not require intelligence that a terror plot is in the works or even an assault on a military convoy or a market in Mumbai or what have you. What it means is that American citizens do not have the right, as private citizens, to kill foreigners unmolested anywhere in the world they like. And they never did have that right. Yesterday an American was killed in Alabama in the comfort of his own bunker without a trial and without judicial review. But the kid is alive.

[Tom]

Thank you Peter G, and well said. The whole "drone war" thing is based in the first place on Congress' declaration that we (USA) are *at war.* If anything, POTUS' most important executive action apart from approving expansion of the use of drones was shifting the official terminology from "war on terror" to "war on al Qaeda", thus providing an actually achievable endpoint to AUMF authorized executive powers.

[Peter G]

This is, Tom, one of those instances where history is a poor guide. It is not entirely without precedent though and talk of war powers can be distracting from the real problem at hand. What is happening is more akin to the suppression of piracy than warfare. And the US like many countries has history in that regard. American citizens don't have a right to be pirates either and they don't have to be engaged in boarding a ship of American registry or otherwise to be dealt with. Can you imagine the consequences to American stature in the world should it ever become known that US intelligence sources indicated an attack was imminent or being planned against a US ally and nothing was done because the terrorist was a US citizen and the targets weren't? In conclusion I will only say that many people need to learn something about the evolution of airpower and how it has been used historically. I will repeat, because it bears repeating, that that great man, FDR, caused millions of Japaneses and German civilians to be killed, in order to get at their leadership. He and his forces did not hesitate for a moment to target Yamamoto when they had the chance and I'm pretty damn certain that if he had drone technology at his disposal it would have been used in preference to wholesale slaughter.