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Wednesday, July 18, 2012

Quintessentially American: Suing the Lethal Presidency

I've been a bit frothy over at FB and here lately about the secret source or explanation of law that ostensibly authorizes Obama to kill citizens abroad without any familiar signals of due process. Charlie Savage has some news about new lawsuits that pick up on the related themes advanced in the important reportage/polemic by Tom Junod in Esquire. And along the same vein, via SSRN today, I came across a new student note from Vandy LR about the due process issues facing the killing of citizens without notice or hearing. I haven't read it yet, but you'll dimly recall, perhaps, that I raised similar concerns the other day, to the effect that the knock list ought, in most cases not involving dire imminence or immediacy, not be operationalized until an American citizen on foreign ground's been given adequate notice and a chance to surrender and have a hearing of some sort with counsel. If the person turns down the opportunity, then the strike might be permissible under various conditions establishing some form of treason or calamitous danger.

In any event, the Junod piece and his Esquire blog posts, which are just outstanding, raise great questions for our fellow law profs. It might be unfair to ask David Barron and Marty Lederman by name what they think about this, since they purportedly had a hand in this policy's development and justification (I think I read that somewhere but if I'm wrong, let me know and I'll fix it). But anyone, please: what's the justification for keeping secret the memos detailing the President's authority to execute a knock list that provides no notice or hearing for citizens? And if Al-Awlaki's son was really just collateral damage, then what's the danger to saying so afterward, as Junod recommends? At the very least: let us have the chance to be persuaded to this aggressive point of view.  At this point, I can't see how one can (on legal grounds) disagree with the ACLU's Jameel Jaffer (also a friend from law school), who explained to Junod why the ACLU is representing the American family of Al-Awlaki in the damages suit against Obama's officials:

"The main reason we're bringing the case," Jaffer continued, "is to get some kind of accountability, in     the most basic sense of the word. The government has killed three of its citizens and we think the     government has to account for its actions, first to acknowledge, then to explain. We believe that if you     accept that the government has the authority to kill its own citizens without acknowledging its actions,     you have set up an authority that will one day be abused. Once you create this power, this power will     sit around available to every single future president.

That's the long game I'm most worried about. It's somewhat easy to think Obama won't grossly abuse this power from my perspective. (It's hard to think the power wasn't misused vis-a-vis the 16 year old, however.) But what if Sarah Palin were freakin' President? Also, in case you missed it, Junod reported on an interesting conversation he had recently with an unnamed official intimate with the counter-terrorism procedures. According to that conversation, the justification for silence had to do with preserving diplomatic and security cooperation with other nations--the requirement of non-acknowledgment. If that's the operating rationale, we need to know more about it so it can be scrutinized. Ok, daily froth is over, for now.

 

 

Posted by Dan Markel on July 18, 2012 at 02:21 PM in Article Spotlight, Constitutional thoughts, Current Affairs, Dan Markel | Permalink

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I don't think you're frothing, you're right, this is an enormous concern. I'm writing a book about emergency presidential power and my concluding chapters deal with the Obama administration's expanded use of presidential power. The admin's claim that it can kill U.S. citizens without due process is disturbing, to say the least. It's also disturbing that Lederman, who was justifiably critical of the Bush admin's use and justification of executive power, wrote a memo (along with Barron, as you suggest) justifying presidential power to kill citizens without due process. so, you're right, Lederman and Barron have been involved in justifying this policy, as discussed here http://www.nytimes.com/2011/10/09/world/middleeast/secret-us-memo-made-legal-case-to-kill-a-citizen.html?pagewanted=all and here http://www.salon.com/2011/10/09/the_awlaki_memo_and_marty_lederman The 2nd link is to a piece written by Glenn Greenwald---he is relentless (in a very good way) on this issue. Greenwald argues that there is no justification for keeping the Barron-Lederman memo secret. The memo states legal conclusions, not national security secrets, as he points out. Greenwald describes this as "secret law", and I think he's right.

Posted by: Chris Edelson | Jul 18, 2012 2:48:42 PM

Thanks Chris. Btw, I've now had a chance to peruse though not read closely the Vandy note. It's a solid overview of the legal issues and prescribes with more nuance much the same I've been doing--so it's recommended from this somewhat novice set of eyes.

Posted by: Dan Markel | Jul 18, 2012 3:39:30 PM

Dan: I agree that the note does provide a good overview, with one exception -- it fails to note that the Bill of Attainder Clause is directly on-point, as it granted citizens a substantive right not to be targeted in precisely this manner. This will be discussed in detail a paper I wrote that will soon be published in the Utah Law Review, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1780584 -- given the protections of the Bill of Attainder and Treason Clauses, I am not sure that notice of pending action would be sufficient, and in fact trial in absentia might be required.

Posted by: Ryan Alford | Jul 19, 2012 8:35:43 AM

Dan, why would you have more confidence that this President would not misuse power than any other who could actually be elected?

Posted by: Rick Garnett | Jul 19, 2012 10:17:37 AM

Ryan, thanks for the tip.
Rick, simple: b/c from what (little) I know about Obama, I think he's a deeply serious and thoughtful person. I can't say the same for most of the other presidents who have been elected during my adulthood. That said, you're right to ask b/c in any event, I don't think the law should be one set of rules for relatively "great" guys like Obama and and a different set of rules for the not so great folks.

Posted by: Dan Markel | Jul 19, 2012 11:02:29 AM

Hi Dan -- I was just kidding (kind of), my friend. I didn't and don't see the evidence that he's more serious and thoughtful than the typical President, including those elected in my lifetime -- and I do not mean that as an insult or even a criticism. But, put that aside. I *do* think that the extent to which he was and is portrayed, and regarded, as different / better / transformational / beyond / new creates the risk that those who, on balance, support his side's policies over the other side's policies, will be tempted to give him a pass, or will miss it entirely, when they should be (honestly, constructively, etc.) challenging and criticizing.

Posted by: Rick Garnett | Jul 19, 2012 2:08:59 PM

Rick, that's the spirit in which I've been trying to focus the fire!

Posted by: Dan Markel | Jul 19, 2012 3:40:36 PM

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