Shhh! It's a secret

Naturally the very existence of the document is a national security secret (or at least a pinkie-swear secret) - but what you expect when the document in question is used to justify the murder of an American by his own government?

Jeff Gamso had the right idea this past Sunday. Reading about the memo and what may, or may not, be contained within is the equivalent of one of those friend of a friend stories that Jan Harold Brunvand collected in his quest for urban legends.  

The memo, written last year, followed months of extensive interagency deliberations and offers a glimpse into the legal debate that led to one of the most significant decisions made by President Obama — to move ahead with the killing of an American citizen without a trial.

The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.

The Obama administration has refused to acknowledge or discuss its role in the drone strike that killed Mr. Awlaki last month and that technically remains a covert operation. The government has also resisted growing calls that it provide a detailed public explanation of why officials deemed it lawful to kill an American citizen, setting a precedent that scholars, rights activists and others say has raised concerns about the rule of law and civil liberties.

President Obama wasted no opportunity to claim credit for the killing of Mr. Awlaki (al-Zawahri in the original article) when he thought it might get him support for his upcoming re-election bid. But, once the criticism began rolling in, President Obama and his minions circled their wagons. And now we have this secret memo (that supposedly exists) written for the express purpose of justifying state-sponsored murder.

The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.

See, that's all you need to know. Our intelligence agencies said so - therefore it must be the truth. Because he said some bad things and because some people did some bad things we must kill him. We must ignore the Constitution in order to protect ourselves.

Or some line of garbage like that. We live in a society in which a great number of folks don't believe anything the government tells them. President Obama could tell everyone today is Wednesday and there will be a segment of the population convinced he is lying. Yet these same folks have no problem believing the government after it orders the killing of an American citizen.

But, if I were the president, maybe I'd rather deal with the muted backlash after ordering a hit on an American citizen rather than questions about how poorly the economy is performing.

Death without due process

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 offence 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. -- 5th Amendment

The United States has killed two of its own. On Friday, under orders from President Obama, a US military airstrike resulted in the death of Ayman al-Zawahri, an American-born cleric who had become a vocal critic of US policy. Killed alongside Mr. al-Zawahri was Samir Khan.

In July, U.S. Defense Secretary Leon Panetta said al-Awlaki was a priority target alongside Ayman al-Zawahri, bin Laden's successor as the terror network's leader.

The Yemeni-American had been in the U.S. crosshairs since his killing was approved by President Barack Obama in April 2010 — making him the first American placed on the CIA "kill or capture" list. At least twice, airstrikes were called in on locations in Yemen where al-Awlaki was suspected of being, but he wasn't harmed.

Mr. al-Zawahri and Mr. Khan weren't arrested for anything. They weren't charged with anything. They were never indicted. They were never tried before a jury of his peers. They were never convicted of any crime against the United States.

There was no due process of law. Mr. al-Zawahri and Mr. Khan, were deprived of their most basic rights because they dared to voice criticism of US policy in the Middle East.

President Bush (the Younger) created a shitstorm when he ordered suspected terrorists and their supporters to be held indefinitely in prison. People were also up in arms (at least those who knew what was going on) about the expanded powers given to the government to spy on its own citizens. But neither of those policies holds a candle to ordering the death of American citizens without affording them due process of law.

As flawed as the Troy Davis situation may have been, at least he was afforded his day in court. That's more than Mr. al-Zawahri and Mr. Khan were given. If los federales had the goods on Mr. al-Zawahri and Mr. Khan, why not obtain an indictment? Why not seek to extradite them? Why not put them on trial? If their deeds were serious enough to warrant death - then let's see the evidence. What are you afraid of, President Obama?

Is it because their "crimes" involved being vocal critics of your foreign policy? Is it because of the words they spoke and wrote?

Thus far President Obama has caught flak for the state of the economy on his watch. Now it's time he catches it for ordering the deaths of two American citizens and depriving them of their constitutional rights. When President Obama was sworn into office, he took an oath to defend the US Constitution.



President Obama, you just violated that oath. You were not only part of a conspiracy to deprive two American citizens of their constitutional protections - you were the man in charge of the conspiracy. In depriving them of their constitutional rights, you also conspired to murder the two men.

See also:

"Ron Paul calls US killing of American-born al-Qaida cleric in Yemen an 'assassination.'" Washington Post (Sept. 30, 2011)

"Obama praises al-Awlaki killing," Time (Sept. 30, 2011)

Will anyone stand up for the Constitution?

The Congress shall have the power to lay and collect taxes, duties, posts and excises, to pay the debts and provide for the common defense and general welfare of the United States... 

The Congress shall have the power to declare war... 

-- United States Constitution, Article I, Section 8

Last week, ten members of Congress filed suit in federal court seeking an injunction against President Obama's intervention in Libya.

Their action comes about 61 years late. Congress sat on its hands in 1950 when President Truman sent American troops to fight in Korea. The president didn't seek a declaration of war and Congress obliged him by doing nothing.

Then President Eisenhower thought it would be a grand idea to send American "military advisors" to Vietnam to get involved in a messy little domestic dispute that turned into a nasty civil war. No one in Congress raised their voice as more "advisors" were sent to Southeast Asia. The American presence escalated under President Kennedy to a chorus of silence from Congress.

Then came the "incident" in the Gulf of Tonkin. President Johnson decided it was time to send in more troops. Congress passed something called the Gulf of Tonkin Resolution by which they formally ceded their constitutional duty to declare war.

Under President Nixon the war became the military equivalent of Uncle Remus' tar baby. Just like Brer Rabbit got himself stuck in that little ol' ball of tar, the American military found itself in a war it couldn't win. Congress finally got around to asking themselves if it might be a good idea to declare war considering the number of troops on the ground in Vietnam.

But alas, Congress couldn't bring itself to actually doing its job. They passed a little something called the War Powers Act that was as clear a breach of the Constitution as anything that came through the nation's Capitol. The imperial presidency was now complete.

Presidents Reagan, Bush (the Elder), Clinton and Bush (the Younger) all sent young Americans into harm's way without so much as a peep from Congress -- unless someone thought they could wrangle some votes in the next election by appearing to have a backbone.

And now, 70 years after the last time Congress declared war on anyone, some members of Congress have decided that enough is enough and are challenging the president's ability to send troops into war without the authorization of Congress.

One might argue, however, that the doctrine of laches would defeat any attempt by Congress to regain a power that they have failed to exercise since 1941. Allow someone to do a certain thing over and over without raising a stink about it and a court is likely to decide that you were just fine with what that certain someone was doing. There's also that little sticking point known as the separation of powers. Does a federal court have the power to issue an injunction preventing the president from doing anything?

And that brings me to another question -- if Congress controls the purse strings of the federal government, why don't they just vote not to fund any military operation in Libya? If Congress were to challenge a president when it comes to sending our young people to war, maybe, just maybe, we might see the US involved in fewer conflicts overseas.

Of course if Congress were to call a vote on blocking funding of the military intervention, then some folks up in Washington would actually have to take a meaningful stand and put their butts on the line. Does anyone in Congress have the guts to stand up to the president and demand that Congress' power to declare war be observed?

While I can think of a couple of folks who might be so inclined, for the most part, our legislators in Washington sold their souls a long time ago for the almighty campaign contribution. You see, if you take a principled stand you're bound to piss someone off and since very few politicians have the courage to stand for their convictions, Congress' power to declare war will continue to be honored more in the breach than in the observance.