Democracies are fragile, and one of the worries about them is that the seeds for their overthrow are sewn and grown inside. That's a thought as old as Plato (see Republic IX's son of the democratic man, the eventual tyrant), but it's the Romans who lived it fully and provided us with a model for it: Julius Caesar. Invocations of Caesar haunt American democracy, and one point of interest is that John Wilkes Booth invoked Brutus in the aftermath of his assassination of Lincoln. The dangers of an imperial presidency has been a longstanding worry.
Kevin Williamson's essay in National Review Online has the same analogy at its core: Obama as Caesar. Now, we've seen this trope before with the Obamacare concerns and with the general teaparty invocations of the blood of tyrants nourishing the tree of liberty. But I think Williamson's point shouldn't be lumped with these. His, I think, seems considerably more reasonable. First, Williamson's concern is with the fact that Anwar al-Awlaki was an American citizen that was targeted for assassination. Sure, under conditions of combat, we don't need to arrest and mirandize our opponents, but those we know are citizens and not in the midst of a shootout deserve some legal concern. Yes, he was an al-Qaeda leader and planner. Still a citizen. Second, the Bush administration cleared the ground for both treating al-Qaeda operatives as combatants and as dialing back protections for citizens suspected of being in league with them. This yielded the following:
Running with the ball we passed him, Obama and his administration now insist on the president’s right not only to order the assassination of U.S. citizens, but to do so in secret, without oversight from Congress, the public, or anybody else. Barack Obama today claims powers that would have made Julius Caesar blush.
A good deal of the work on this blog is devoted to picking out fallacious forms of these kind of arguments. This time, I think it's appropriate. Even if you think the President's decision was right, you must admit that it is a considerable extension of his power to trump the Fifth Amendment's requirement of due process.
Good article. I think the author pretty much hits on the core dilemma: our current system gives the chief executive a dangerous amount of power (that some day could be abused), otoh it's impossible to extradite and try most of these Al Qaeda leaders. My personal opinion is that the current level of executive power is an unsecured liability, and we may have revert to the old system even if a lot of terrorists fall through the cracks.
May I grumble at this point that Congress had plenty of advance notice of this, both under Democratic and Republican majorities, and it would be really nice if Congress would start doing its job and pass legislation addressing these issues. The problem being, of course, that then Congress has to accept responsibility for any limits (or lack of limits) it imposes on the President – and Members of Congress don't like to be held responsible for anything. (But I digress.)
The "make Caesar blush" argument is less problematic from the standpoint of an argument against a autocratic executive than it is from a historic perspective. The editorial contains some suggestions that I find bothersome, as it seems to imply that this act is somehow an order of magnitude worse than what came before (e.g., mistreating U.S. citizens captured by the military, holding U.S. citizens indefinitely without charges) or, at least, that most prior excesses were justified by how "we all" were willing to cede our rights post-911.
The author also suggests that the "War on Terror" is principally composed of the wars in Iraq and Afghanistan, eliding from history the Bush Administration's declaration of a "Global War on Terror". That allows him to distinguish the Obama Administration's actions "now that the actual war part… has mostly wrapped up," but it's not a fair distinction. Part of the point of GWOT was to avoid the constraints of wars against defined nation states, and to justify actions in "failed states" or even sovereign nation states that we decided were "against us". To assert a GWOT that is divorced from Iraq and Afghanistan, and which justifies ignoring the laws of war, is far from being new to the Obama Administration – it was the express policy of the Bush Administration. When John Kerry made statements along the lines of "The War on Terror is not a military campaign, but a risk-mitigation project", the political right sneered and jeered.
I don't at all disagree that an assassination policy of this type is troubling and problematic,. But unlike Glenn Greenwald and others who have been making this type of argument from day one, before Williams gets to lecture me on what "decent nations" do I want to hear about his loud denunciations of the other acts that, now that he's sobered up from his post-9/11 hysteria, he would declare to be beyond the pale. It's great that he admits that much of the right-wing reaction to criticisms of Bush amounted to mindless hippie-kicking, but when did he stop kicking hippies and start standing for principle? If it's "When the Democrat took up residence in the White House," it's simply more of the same.
Directly on point, while noting that in the face of public, judicial and congressional indifference, the continuation or discontinuation of these polices turn on the outcome of "the next election", Williams does not appear concerned that the only nominee who isn't continuously suggesting that Obama is a wimp seems to be Ron Paul.
Hey Aaron. Love the expression 'hippie kicking'.
Ben, good to hear we're on the same page on this one.
Williams' gripe is misdirected. The president targeted an agent "part of or supporting forces hostile to the United States" (Hamdi v. Rumsfeld, 542 U.S. 507 (2004)). This same court stated a US citizen can be such an agent. Although speaking in terms of detention, this case can easily be taken as president wherein citizens, so affiliated, are treated like any other hostile combatant. This isn't news, either. The court decided 60 years ago that citizens can be categorized as hostile combatants in Ex parte Quirin, 317 U.S. 1 (1942).
Can the president order targeted killings? This isn't new either. Regan's Executive Order 12333 forbidding assassinations has been consistently argued as overridden by the Joint Resolution of Congress of Sept. 14. This lets the president use all necessary force to protect the country from forces hostile to the US, which al-Awlaki can be/is/was, citizen or not. Targeted killings have also consistently been viewed as reasonable self-defense under Article 2 section 2 of the US constitution as well as Article 51 of the U.N. Charter.
This action that's receiving serious consideration by less axe-grindy, hyperbolic people than Williams is whether or not US nationals can have their citizenship stripped from them under 8 U.S.C. section 1481. Are people like al-Awlaki willfully denouncing their allegiance to the US by joining a hostile state? Is al-Qaida a hostile "state"? The Terrorist Expatriation Act has been languishing around congress, waiting to discuss this very question.
8 U.S.C. § 1481 : US Code – Section 1481
After reading Ken Williamson's essay, I do not understand why he takes his position.
Throughout his essay, Williamson cites past actions of Presidents and dictators alike, comparing those acts to Obama's planned acts. He makes two mistakes that I was able to identify, and I am sure there are more, but these two were apparent to me:
1) Presidential Executive Order is something the President has available to him at any time. Ordering troops into a foreign country (or into our own territories), setting Presidential policy, or ordering the assassination of a citizen is all part of that Executive Order purview. He needs no congressional permission to do any of that, and more. Congress has the ability to order the troops home, or to vote against Presidential policy, but the enactment of that policy has to go forward until otherwise revoked by congress or the Supreme Court.
2) Williamson's last remarks, quoted here: "When the war is a metaphor, the battlefield is everywhere, and the timeline of operations is history’s horizon, we invite the creation of a state of “permanent emergency” by acquiescing to the growth and glorification of the state in arms."
I agree with what Williamson says on the surface, but when I look beneath the words, I find not Presidential power, but the CIA and the wars they have created, financed, armed, and directed, all without the approval of any governmental office. They did get approval from the warmongers who stood to profit in these wars, including the "War on Drugs" which is not a war at all, just a way to keep our prisons full and our citizens disenfranchised.
Because of this, I find his views off target. It is not the President we should be worrying about, but the people working behind the scenes making the war machine possible, like the CIA and weapon manufacturers.
Assassination is necessary, as Williamson points out, but the public announcement of an assassination is not a Presidential cry of free reign on American citizens, but a propaganda campaign designed to flush out the fox, just like the hounds do in a hunt. Hounds do not catch the fox, but they do make it impossible for the fox to hide, and the fox becomes easy prey for the hunter. I find it far better to rattle some cages with the intent of assassination than to occupy a nation with the intent of preventing terrorism through enforcement of American values on the sovereign people of a foreign nation.