Assassinating Americans, Secretly
By Jacob Hornberger
View all 73 articles by Jacob Hornberger
The Justice Department's motion to dismiss the ACLU's lawsuit in the Anwar al-Awlaki case confirms, once again, that when it comes to civil liberties, the Obama administration is no different from the Bush administration, and in fact is arguably much worse.
The al-Awlaki case involves President Obama's order authorizing his military and paramilitary forces (i.e., the CIA) to assassinate al-Awlaki, an American citizen. The proposed assassination is being justified under the Bush-Obama "war on terrorism."
No warrants. No grand jury indictments. No jury trials. No due process of law. Simply, assassination.
The assassination power now being wielded against al-Awlaki isn't limited to him. The U.S. military and the CIA can now assassinate any American they want. All they need is the president's authorization; and, according to him, he doesn't have to answer to anyone, including Congress and the courts.
Moreover, this omnipotent power to take out Americans is not limited to Americans living overseas, as al-Awlaki is doing. Remember the point that Bush made, which Obama has enthusiastically embraced: that the entire world, including the United States, is the battlefield in the perpetual, worldwide "war on terrorism" that the U.S. Empire is waging.
That means that the president now has the power to label any American he wants right here in the United States as a terrorist and issue the order to his forces: "Take him out, now, with bullets, bombs, or drones."
Does Obama need congressional authority before he assassinates Americans? Nope. The notion is that, like Bush, he's engaged in a real war, just like World War I or World War II and, therefore, he has the authority to kill Americans who, he claims, are supposedly fighting on the other side.
There's at least one big problem, however, with the Bush-Obama formulation of their "war on terrorism": Terrorism is a federal crime. It's on the books as a federal crime. It's listed in the U.S. Code as a federal crime.
Thus, it's not surprising that dozens of terrorism cases have been brought in the federal courts. Why wouldn't they be? Since the U.S. Code, which defines federal criminal offenses, lists terrorism among the many federal crimes, it stands to reason that suspected terrorists are brought to court to face federal terrorism charges.
As I have long pointed out, however, what the Bush administration did after 9/11 is simply announce that federal officials now had the option of treating terrorism as either a federal crime or as an act of war, whichever way they want to go.
As I have also long pointed out, not only does the Constitution not permit such an option to be exercised, it would be difficult to find a better example of a violation of the rule of law and equal treatment under law than that. Either terrorism is a crime (which it is) or it's an act of war (which it is not). To permit U.S. officials to choose one way or the other is the epitome of arbitrary, discretionary, ad hoc, totalitarian power.
Does an American have the right to secure judicial review to prevent his assassination? Not according to Barack Obama.
The ACLU sued on behalf of al-Awlaki's father seeking a federal court injunction against the assassination. Barack Obama ordered his Justice Department to seek an immediate dismissal of the suit.
His justification? The "state secrets doctrine," a doctrine found nowhere in the Constitution. Obama is arguing that to permit the suit to continue would mean that people would learn the details of his assassination program and the standards by which Americans and others are targeted for assassination. That would jeopardize national security, says Obama.
So there you have it. We now live in a country in which the military and the CIA can now assassinate Americans, on authorization of the president, who doesn't have to explain to anyone the standards for such assassinations. That's what now passes for a "free" country -- the omnipotent, non-reviewable power of the ruler and his military and paramilitary forces to assassinate their own people.
Exactly who are the masters and who are the servants in such a society?
Jacob Hornberger is founder and president of The Future of Freedom Foundation