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Sunday, February 05, 2006
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 THE PLOT THICKENS, BUSH ADMINISISTRATION ASSERTS THAT IT CAN KILL AT WILL, WHEREVER AND WHENEVER IT WANTS
Just when it seemed as though the Bush administration appeared that it would dance away from any and all opposition to its domestic spying program (because the opponents of it, both Democrat and Republican, lack anything approaching the balls to do anything about it), a lawyer in the Justice Department has made things immesaurably worse.
Steven Bradbury, acting head of the department's Office of Legal Counsel testified in executive session before the Senate Intelligence Committee last week that the president can order the killing of people, presumably including even American citizens, inside the United States.
During the briefing, said administration and Capitol Hill officials (who declined to be identified because the session was private), California Democratic Sen. Dianne Feinstein asked Bradbury questions about the extent of presidential powers to fight Al Qaeda; could Bush, for instance, order the killing of a Qaeda suspect known to be on U.S. soil? Bradbury replied that he believed Bush could indeed do this, at least in certain circumstances.
This is, of course, the "slippery slope" that opponents of the domestic surveilence program have often referred to. If this is indeed the position of the administration, and no one has yet to refute it, then this president believes that he has the authority to order extra-judicial killings. Such killings are commonly known as "assassinations" or "murder." It also would fly in the face of 250 years of constitutional and legal history and practice.
Worse still, their supporting arguments are outright ridiculous. Allies of the administration are asserting that the 14 September "use of force resolution" would allow the President to order an extra-judicial homicide. This is silly in the most extreme ways, as it asserts that the resolution over-rides other federal laws and and constitutional guarantees.
As I noted on Monday 30 January, the resolution recognized the supremacy of the 1973 War Powers Act. Therefore, it follows that the resolution does not allow the circumvention of other federal laws, and indeed must be in accordance with them. Even if the resolution trumped federal law, it cannot supercede the United States Constitution, which extra-judicial killing would under any circumstances.
On February 18, 1976, President Gerald Ford signed Executive Order 11905, which explicity banned any agency of the United States government from engaging in assissinations. This order was affirmed by President Ronald Reagan on December 4, 1981 when he signed Executive Order 12333. If anything, 12333 went even further than 11905. Ford's order said that "political" assassinations were not to be engaged in. Reagan's order broadened the prohibition, stating;
No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.
To my knowledge, President Bush has not repealed this order, nor has Congress passed sperceding legislation. It therefore remains binding on all US government employees.
The examples that friends of the administration give where a president can order a murder within the United States are ridiculous on their face.
Current and former government officials said they could think of several scenarios in which a president might consider ordering the killing of a terror suspect inside the United States. One former official noted that before Flight 93 crashed in Pennsylvania, top administration officials weighed shooting down the aircraft if it got too close to Washington, D.C. What if the president had strong evidence that a Qaeda suspect was holed up with a dirty bomb and was about to attack? University of Chicago law professor Cass Sunstein says the post-9/11 congressional resolution authorizing the use of military force against Al Qaeda empowered the president to kill 9/11 perpetrators, or people who assisted their plot, whether they were overseas or inside the United States.
This is nonsense in the extreme. Shooting down Flight 93 would legally be considered repelling an armed attack against the United States, and not "ordering a killing," although it would have the effect of same. As to the scenario of a terrorist with a dirty bomb, the legality of that would depend on the circumstances. If the FBI were dispatched to arrest said terrorist and he resisted violently, the FBI could shoot and kill him as a means of self-defense. If however the United States military were to respond by order of the President, the President would be violating the Posses Comitatus Act of 1878 and would be subject to impeachment as a consequence.
Then there is the matter of the Constitution itself. Generations of Supreme Court ruling have held that even foreigners enjoy constitutional protections within the borders of the United States. Moreover, this is affirmed by the Fourth, Fifth, Sixth and Fourteenth Amendments which explicitly refer to "persons" as opposed to "citizens." The Fourteenth Amendment is particularly enlightening on this subject.
Section 1.All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (emphasis added).
Then there is the Fifth Amendment, which reads;
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.
Again, there is no constitutional distinction between "citizens" and "persons."
No serious person has argued that the 2001 use of force resolution trumps the US Constitution. Although the administration is making just that case, the Supreme Court takes a very different view. EX PARTE MILLIGAN, 71 U.S. 2 (1866) was explicit in the rights of the people during time of war, rebellion or insurrection, particularly their right to redress in the courts. The general consensus view of Milligan is as follows;
In what many scholars hail as a landmark in constitutional protection of civil liberties, the Court decided that military rule could not supersede the civil courts in areas where the civil courts and government remained open and operational. Indiana had been a loyal state, and its regular government and courts had functioned throughout the war. In such a situation, the military courts had no jurisdiction over civilians.
Certainly the language of Milligan allows the courts to interpose themselves between the citizenry on the one hand, and Congress, the president and the armed forces on the other. There is little doubt that the Lincoln administration overreacted to threats of potential disorder in the northern states, and the arbitrary use of executive authority -- often without congressional approval -- could only be justified by the unique conditions surrounding the Civil War. The Court's rebuff, however, came late, and its primary value was as a precedent for future governmental action. The United States, fortunately, has since been spared the problems of internal security in wartime to which Lincoln had to respond.
Milligan grew out of actions by the excutive branch during the Civil War, arguably a far more serious threat to both the American people individually and the US government generally than is the War on Terror. Yet it asserts the right to seek relief for those detained in civil courts. It should then also follow the right not to "be deprived of life, liberty, or property, without due process of law" cannot be violated by the executive branch.
If Stephen Bradbury actully believes what he is saying, he should be disbarred for his breathtaking ignorance of the law. And if President Bush orders the killing of anyone within the United States, he should be immediately impeached, not only for murder, but for inflicting incredible violence on the Constitution - itself a form of treason.
Easy Listening Recommendation of the Day: America the Beautiful By: Ray Charles
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