That, at least, is how Glenn Greenwald and libertarian blogger Radley Balko interpret their (the administration’s) arguments as reported in this Washington Post article.
Any thoughts, legal/political eagles, on how I should interpret it?
They’re not arguing they can assasinate anyone without oversight. They’re arguing they can assasinate anyone if they have state secrets that say why they should be killed. It’s those state secrets that have no oversight.
We can solve that problem by allowing oversight of the state secrets. Then they can kill anyone if they have a secret reason.
Is the Obama administration taking any action to put this oversight in place? If not, I don’t see why Greenwald’s interpretation is incorrect.
I don’t think its incorrect either. And even with oversight of the secrets nothing changes, because oversight could just be some senators who believed in WMDs, but not evolution. And they wouldn’t be allowed to see the state secrets without swearing to never divulge them, under penalty of law. The secrets could still be kept from the courts, and there would be no adjudication. Even if there was a trial, as long as the President can order someone killed based on overseen state secrets, and can’t be prosecuted for doing so, the guy can be killed, and a trial won’t help him after that.
It’s tough to be a guy with state secrets that say he can be killed these days. I hope it’s not me.
The state secrets argument seems strange to me. It essentially is implying that there are possible legal grounds for issuing a death order - otherwise there would be nothing plausible to says exists under the concealment of secrecy. So under what circumstances would a “capture or kill” order be legal?
How exactly does a “capture or kill” order work? Is it like putting out an arrest warrant with the knowledge that the target might resist arrest and be killed during that resistance? Or does it allow American agents to initiate a plan that they know will result in the target’s death with no reasonable expectation of capture?
Greenwald’s characterization is overstated, but not too far off the mark. Obama can’t say why this guy should be captured or killed, because it would reveal that they have a mole in al-Queda or something.
The argument of the DOJ seems pretty good to me - this is war, and civilians who want to use the US court system to affect who the US goes gunning for can do so by surrendering to the authorities and making their case in court.
Interesting article, though -
But not to worry -
Which brings out the other side of the argument - we should just trust Obama that he is doing the right thing, even without oversight, whereas bad ol’ Bush did it for naughty reasons. Suuuuuurrrre he did, and suuuuuuure you are.
Regards,
Shodan
Well, clearly Obama has gone mad, mad with power, and the only thing to do is get the Republicans back in there.
OR…
You have a person outside the boundaries of the United States, running a terrorist group that acts like a hostile nation-state, and you are ordering your forces to capture or kill him. Why? Well, you could reveal that information, but only at the cost of destroying a valuable intelligence source.
This is a classic political question, not something justicible. The President has the power to formulate and execute (no pun intended) foreign policy. The courts are not our super-duper leaders, here to second-guess the legislature or the executive.
So I’d dispose of this as a political question. But if that failed… sure, assuming the state secrets claim is properly invoked, why not? That’s why we have an executive branch.
You make a compelling argument. Not in the quote above, admittedly, but somewhere at some time I’m sure you have.
It’s not exactly a state secret itself to say that the Bush administration was pretty heavyhanded in using claims of “state secrets” to shut down any enquiries into anything that might have made them look bad. It’s a practice that administrations have used going back decades (there was even a This American Life segment on it recently about a lawsuit involving faulty aircraft in the 1950s); the last administration just used it more.
No idea what Obama is covering up with his use of it, although I say that if you can’t do secret murders what’s the point of becoming president in the first place?
Yeah, but how long until the drones are equipped with death-rays and they soar above L.A., picking off dissidents one by one and reducing them to ash?
Wait, this isn’t the same thing 
Just election year fear-mongering. It’s nothing that all Presidents don’t do, and Presidential elections are always, to some degree, about trusting somebody with powers that nobody else has.
Ah… for a moment there, I was worried! But since it’s only going to be used to murder U.S. citizens who are (we are to believe, based on absent evidence) “leaders of terrorist groups,” no need for us to worry our pretty little mushroom heads. Now I can go back on soma-holiday, confident that Our Beloved Leader and his invisible assassination squads will take good care of us while we nap in our cribs.
The National Security Act of 1947 requires that Congress be kept fully and currently informed of all intelligence activities, which upon plain reading would seem to mean that any plans to covertly attack someone, and the secret evidence therefor, would have to be made available to Congress.
Now, seeing how Congress is the body which authorized the President to attack any organizations that somehow carried out or assisted in the 9/11 attacks, and the state secrets in question are reasonably expected to be available to Congress, how does one conclude that there is “no oversight?”
“Murder?”
No. Murder is the unlawful killing of a human being.
And guess what? You don’t have a veto on the actions of the federal government in the foreign policy arena. You don’t get to know all of our intel so you can independently decide if we are to pursue a particular course of action.
If you want that, then get 270 electors to vote for you in December 2012.
Until then, yes, you have to defer to the guy who DID get 270 electors to vote for him.
Surely there is a crypto-Kenyan-Marxist exception written in the margins someplace, right?
He’s planning to build a Victory Mosque in Islamabad.
Gee whiz, professor… but do I really have to *like *it, too?
It’s fine (and not particularly surprising) that you’re A-OK with such a policy, and I’m not so naive that I think extrajudicial assassinations are something new. But I find the casual public admission that the President is entitled order a hit on a U.S. citizen, anywhere in the world—with no due process, no charges, not even information on who is to be killed (or has been killed) or why—met with resounding indifference by the American public, to be cause for some concern. If I inhabited the same “just world” that you do, it probably wouldn’t bother me. I don’t, and it does.
If the courts and the Constitution can’t provide such a veto, then Due Process has become a nullity.
Election year fear mongering is used by a faction to scare people into voting for them. Because this and other articles since Obama has been sworn in paints Obama and the broader Dem party in a very bad light (if you’re concerned about civil liberties whatsoever) then it can’t be the Dems, right? But the Repubs agree with him on this too. He’s broadening the Bush policies, so they don’t want to make that seem like a bad thing. So who’s doing the election year fear mongering, again?
It’s not a question of due process. It’s a question of how the President chooses to carry out what Congress has authorized in terms of the use of military force.
No. Congress can’t authorize the president to violate the constitution. Now, you might argue that due process is being exercised here, and that’s a different argument. But saying “Congress said it was OK” is not acceptable if the courts deem it to be unconstitutional.