02.08.2013 20

Obama’s License to Kill

By Bill Wilson — NBC News sent shockwaves throughout the nation’s capital when it released a Department of Justice memo providing the legal basis for the federal government to invoke its war powers against U.S. citizens, targeting them for assassination.

The memo deliberately limited its focus to “the circumstances in which the U.S. government could use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force.”

It claims it did not set forth nor examine “what might be required to render a lethal operation against a U.S. citizen lawful in other circumstances.”

Nonetheless, the white paper reveals the Administration’s views on the overall legality of targeting U.S. citizens with deadly force, raising startling questions over how broad presidential war powers really are. For, whether intending to or not, it does in fact provide the legal basis for targeting U.S. citizens “in other circumstances.”

It cites the President’s authority “arising from his constitutional responsibility to protect the country, the inherent right of the United States to national self defense under international law, Congress’ authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict with al-Qa’ida under international law.”

The memo continues, “Based on these authorities, the President may use force against al-Qa’ida and its associated forces.” Including U.S. citizens.

But what about the Fifth Amendment to the Constitution, which states, “No person shall be… deprived of life, liberty, or property, without due process of law”? Wouldn’t that preclude the invocation and exercise of war powers against a U.S. citizen?

The memo answers: “Were the target of a lethal operation a U.S. citizen who may have rights under the Due Process Clause… that individual’s citizenship would not immunize him from a lethal operation.” Why?

The memo states, “[T]hat interest must be balanced against the United States’ interest in forestalling the threat of violence and death to other Americans that arises from an individual who is a senior operational leader of al-Qa’ida or an associated force of al-Qa’ida and who is engaged in plotting against the United States.”

The Fifth Amendment protection of life is apparently not absolute, although one struggles to find an exception to the Due Process Clause in the text of the Constitution itself. It can only be inferred.

Perhaps that is why the memo also cites judicial precedent: “The Supreme Court has held that the military may constitutionally use force against a U.S. citizen who is a part of enemy forces,” referring to the Hamdi v. Rumsfeld decision that allowed for the enemy detention of a U.S. citizen.

That 2004 ruling stated, “We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.”

Surely, then, in the White House’s view, the Court would interpret that the use of lethal force, regardless of citizenship, is an incident of war “so fundamental and accepted” as to be “necessary and appropriate force” under Congress’ authorization. In other words, the Administration believes if it came up for judicial challenge, it would be upheld.

However, one thing the memo neglects to point out from the Hamdi decision is that the Court clearly ruled that the defendant also had a constitutional, due process right under the Fifth Amendment as a U.S. citizen to “be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.”

It’s hard to imagine those due process rights are being respected after the drone has launched its missile.

By cherry-picking Hamdi and ignoring the Court’s emphasis on the protection of the individual rights of American citizens in that case, one can only conclude that this was a memo written to justify actions by this Administration rather than one written to instruct on how to uphold the law. Otherwise, that aspect of the decision would have been of obvious legal concern.

So, the White House has shown its hand. Without a doubt, it views it has authority to target U.S. citizens if they are deemed to be a part of the enemy, regardless of any due process claims the target might have raised had he been captured about his status as an enemy combatant.

Where this ends is anyone’s guess.

For example, it is hard to see where geography would come into play under the type of precedent that is being created. Would the authorization to use military force against U.S. citizens also apply to U.S. soil?

The answer is, if this Administration, or any administration, merely took a broader view of what Congress has authorized it to do, geography would be no limitation whatsoever to the exercise of war powers here.

While the memo may not have been intended to address “what might be required to render a lethal operation against a U.S. citizen lawful in other circumstances,” it did not need to. It would essentially be the same argument.

NBC News is to be credited for breaking this story. It was an incredible act of journalism. But perhaps they should start connecting some of the dots and ask the question if the Administration views this as a wider authority. Ask how the Hamdi ruling, which upheld due process rights, can now be turned on its head to deprive them.

Because whether courts would uphold such a lethal use of force against citizens is not necessarily an open-and-shut case. Based on the Hamdi decision, the Due Process Clause still very much applies even when war powers authorized by Congress are being exercised.

If the Administration views this in a broader context, as the memo indicates, it would appear that the military is being conditioned to follow and issue orders that may be constitutionally questionable at best. And now they may have the legal pretext to complete them.

Bill Wilson is the President of Americans for Limited Government. You can follow Bill on Twitter at @BillWilsonALG.

  • blockade runner

    The first black 007

  • Bawb

    Welcome to the new AmeriKa. We are sacrificing more freedom every day. Soon we will be living in a world much like in Orwell’s 1984.

  • Well, Bill, your points are all well taken. Along with NDAA, this is outrageous. What I’d like to know, however, is whether you’d feel the same if it were a right wing business friendly president who did this . . . as Bush did with the Patriot Act and “rendition” and all the other stuff the right wing embraced so fully during that presidency. I’d also like to know how this fits with the paranoia of the right wing about how the “mainstream media” never reports on something critical of Obama. So, were you against the patriot act, secret wiretaps, rendition, and so on? If so, great. If not, why not? Does this affect the constant lament we hear in this forum that the media is biased toward the left wing, and that it’s only on your “liberty” and “freedom” forums that we can get the truth? I hope so. In any case, welcome to the anti-authoritarian wing of politics. Let’s see if you can be consistent and reasonable from here on out.

  • spiritmatter

    In sports an offense may be a good defense but in human relations it is ungodly, immoral and defies the Declaration of Independence and U.S. Constitution. All humans have a divinely endowed right to life and the defense of that life but no right to act offensively against another by infringing on his/her equal rights or causing him/her significant harm.

  • believe

    Well, I just read the headlines ,and If Barack has the right to kill that is sure opening the door to make it legal for any one to shoot him, The only bad thing about that there will be such a line and that Weill block a lot of traffic.

  • believe

    Now is NOT the time to give Barack the idea that he can do what ever he wants and were just going to set back and let him.
    “GOD” has the last word.not his Allah.

  • Dean

    Just another case of Obama ignoring the constitution, the Scumbag.

  • Dean

    YEP. What is good for the GOOSE, is ………………!!! Remember. Be careful, GOOSE.

  • FLBuck

    Giving the hemorrhoid with ears the option of terminating Americans with extreme prejudice is just more instruments that will gain him absolute power over the entire American people. Most of us former veterans feel that all he is doing is assuring that there would no retaliation against his regime or his policies. As more and more logical and conclusive evidence is uncovered of the motives behind this, the more it is becoming a reality.

  • Mad Mike

    Obama has been carefully laying his plans for america. His america. I believe he never has had, any intentions of surrendering his office of president. He is quietly creating his dictatorship of our country. Appointing radical left and communist department heads, along with military officers, who will obey his orders, (not the constitution or the law). He is following the sucessful rise to national power used by Adolph Hitler in the 1930’s Germany. Obama’s S.S. guard is “Homeland Security”, (which includes FEMA), they have been stockpiling billions of rounds of ammunition and thousands of automatic weapons, and training thousands of “Obama Zombies”, (radicals and commie youths and many illegal aliens and minorities), to use as S.S. squads against the american citizens on Obama’s “enemy lists”. (hundreds of thousands). His “internal security Gestopo” will be all of the other federal agencies who are “armed”. Obama may even invite foreign nations to his “saving the world from america party”. He may need their help to overpower the millions of “patroits” willing to fight for their lives. Military units from Russia, Red China, Cuba, Egypt, and Muslim brotherhood terroists would gladly execute captured “Obama enemies”. Granted, this is the ultimate, worst case senario we may have to face. But, better to prepare for it and not have it happen than the reverse.

  • Mad Mike

    What do “ultimate dictators” always want to do? Exactly what “O’numb-nuts” wants to do. Decide who lives and who dies at his whim! This is the little “black muslim monster” who we just re-elected to govern our entire nation for the next four years. All I can say is if you didn’t vote for him, you better not surrender your firearms or ammo to this federal government! It may be the last thing you ever do as a free man, and the first thing you do as a “groveling slave” to this black muslim tyranny.

  • Mad Mike

    What do “ultimate dictators” always want to do? Exactly what “O’numb-nuts” wants to do. Decide who lives and who dies at his whim! This is the little “black muslim monster” who we just re-elected to govern our entire nation for the next four years. All I can say is if you didn’t vote for him, you better not surrender your firearms or ammo to this federal government! It may be the last thing you ever do as a free man, and the first thing you do as a “groveling slave” to this black muslim tyranny.

    My own government can assassinate me & innocent people standing around me with a drone without due process. It’s just wrong.
    A TIME TO STAND by Oliver is a must read now cause it’s average Americans taking a stand against federal tyranny. I recommend it cause it’s time to see less government & more freedom as it’s suppose to be in the U.S. Constitution.

  • blinddemocrat

    Well, if he kills us all who will pay his tax increases. Then I’ll be in heaven because I’ve accepted JESUS CHRIST as my Savior, looking down, watching him cry like a baby, just like Pharoh did when he let the Israelis go. Oh that was stupid, I just let our slaves go.

  • Lloyd

    Yep!! That’s why he wants our guns. He’s afraid we will shoot back. Probably right. Does anybody hear self defense. That could just start this civil war or revolution everyone is talking about. What it is called will depend on the outcome of the war once it is over. It will probably be “fast and furious” when you consider how many people own guns in the U.S. (Just couldn’t resist the pun.)

  • FloridaJim

    If Obama were a community organizer in Chicago would you give him a license to kill?

  • You can believe the opposite of what this president says.

  • gogreen

    Paranoid much. militia hillbillies are doing the same thing..God do you people hear yourselves!!

  • Sharron Williamson

    they all die the same! remember above all else! ammo is tight so make the first round count!

  • Sharron Williamson

    And again go green! when the tanks are rolling out to get you and your daughters. I cannot waste one round on your stupid ass! wake up and arm your self while teaching your children what to do instead of mocking those who store food, ammo and the like. We will shoot and kill you if you attempt to take what we have been saving. you paranoid yet?

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