"This paper sets forth a legal framework for considering the circumstances in which the U.S. Government could use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader [of a "terrorist" cell] actively engaged in planning operations to kill Americans."
Note: The "White Paper" is dated November 8, 2011. Apparently authored by lawyers employed with the United States Department of Justice, it was released to the public in February 2013.
The unidentified Justice Department lawyer who wrote this paper tells us "three conditions" (i.e., "circumstances") must be met for the legal use of lethal force against an American citizen. These are:
"1. An informed, high level officer of the U.S. Government has determined that the target poses an imminent threat of violent attack against the United States;
2. capture is not feasible. . . ;
3. the kill will be conducted in a manner consistent with the law of war principles."
The Basis Of The President's Legal Authority To Kill Americans
1. The President's authority to kill Americans is based on "his constitutional duty to protect the nation."
Note: This "constitutional duty" is a shared duty between the President and the Congress and its execution was certainly not intended by the framers to swallow whole the Constitution itself.
2. The President's authority to kill Americans is based also on "the natural right of a nation to defend itself under the law of war." (This is merely a restatement of Point 1)
Note: The supreme law of the land is the Constitution, not the law of war.
3. The President's authority to kill Americans is based, too, on the "authorization given him by Congress to use force."
Note: Nowhere in the Use of Force Resolution does Congress authorize the Commander-in-Chief to kill noncombatant American citizens abroad.
The "white paper" puts the President's argument for the authority to kill Americans another way, "Targeting an American citizen who is a member of an enemy force who poses an imminent threat against the United States is a lawful act of national defense." (This language is simply a restatement of Point 1, supra.)
The President's "Authority" Defined By The Constitution
Before he enters the office, the Constitution requires the President to swear to this.
"I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
And, in Article II, section 2, the Constitution states:
"The President shall be Commander-in-Chief of the Army and Navy of the United States. . . and shall have power to grant reprieves and pardons for offenses against the United States."
And, in Article II, section 3, the Constitution states:
"He shall take care that the laws be faithfully executed."
The President Throws The Bill Of Rights Out The Window.
The Due Process Clause and the Fourth Amendment do not protect an American citizen from instant death raining down upon him from the President, the paper tells us, if that citizen, in the mind of the President, poses an imminent threat of violent attack against the United States.
In 1789, the people of the States, in convention assembled, ratified the Constitution on the requirement that it be amended as follows:
"The right of the people to be secure in their persons. . . against unreasonable. . . seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation. . .
"No person shall be held to answer for a crime, unless on a presentment or indictment of a Grand Jury. . . ; nor be deprived of life. . . without due process of law. . .
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; . . . and to have the assistance of Counsel for his defense."
In the body of the Constitution, the Framers inserted these words with regard to the issue of the legal consequences attending an American's act of treason:
"Treason against the United States shall consist only of levying war against them, or in adhering to their enemies, giving aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."
The Framers, as you can see, made themselves very clear, here. Clear enough for the dimmest bulb to understand: When an American citizen is suspected of having participated in the commission of a violent act against the United States, he is subject to the legal charge that he has committed the crime of treason against the United States. In such case, he is entitled, under the Constitution the President swears to protect, to a speedy, public trial and he cannot be convicted, much less summarily executed, unless two witnesses testify in open court to his connection to the violent act.
The Framers were not stupid; having just escaped being summarily killed by King George III, they intentionally put the American citizen, the President would target for death, within the control of the criminal law as defined by the Constitution.
But, starting with Bush II, and continuing now with Obama, the President seizes upon his constitutional status as "Commander-in-Chief" to claim this status trumps, overrides, tramples down under his boot, the American citizen's status as a defendant in court.
Note: In large measure this situation is the legacy of Lincoln. It was he that first seized upon the President's constitutional status as "Commander-in-Chief" as the excuse for trampling the constitutional rights of thousands of American citizens.
The President as "Commander-in-Chief" decides as judge, jury, and executioner, whether an American citizen, suspected not only of actually committing a traitorous act but of "planning" a traitorous act, lives or dies. Do you hear the groaning coming from the Framers' graves? From Scalia's bedroom? From Roberts? Alito's? Ginsburg's. Just one vote, ladies and gentlemen. One vote stands between the President's kill order and the constitutional rights of the target.
Note: Supreme Court Justice William O. Douglas, in Katz v. United States (1967) 389 U.S.347, had this to say about the idea of the President acting as judge, jury, and executioner: "The President is not a magistrate. In matters where he believes national security may be involved he is not detached, disinterested, and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the President is not supposed to be neutral and disinterested. Rather he should vigorously investigate and prevent breaches of national security and prosecute those who violate pertinent federal laws. The President is properly an interested party, cast in the role of prosecutor, in national security cases. I cannot agree that where spies and saboteurs are involved adequate protection of [constitutional rights] is assured when the President assumes both the position of prosecutor and disinterested, neutral magistrate."
The President's Lawyers Cobble Together Legal
For The Idea The President, as Commander-in-Chief, Can Legally
Mathews v. Eldridge
1976 424 U.S. 319
Elridge was awarded Social Security disability benefits in 1968. In 1972, the state agency for whom he had worked, informed Elridge that it had determined he was no longer disabled and intended to stop his benefits. The Social Security Administration accepted the state agency's determination and stopped Elridge's benefits. Elridge sued, challenging the constitutional validity of the procedure the Administration used to assess whether he was disabled or not.
Issue To Be Decided
Does the Due Process Clause of the Fifth Amendment require that prior to the termination of Elridge's benefits, he is entitled to an evidentiary hearing?
"This Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest. In only one case has the Court held that a hearing closely approximating a judicial trial is necessary. In the rest only something more than an ex parte proceeding has been required."
Note: This "something more," the cases show, include (1) notice of the charge; (2) reasonable time for filing a response; (3) and an opportunity for an oral appearance." (See, e.g., North Georgia Finishing Inc. v. Di-Chem, Inc. (1975) 419 U.S. 601.)
"More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires a consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional procedural safeguards; and, finally, the Government's interest, including the burdens that the additional procedural requirement would entail."
Note: The Court then reviewed the administrative procedures the state agency used to determine that Elridge's disability had ended, and found them sufficient under the circumstances to meet the constitutional requirements of procedural due process.
"Despite the elaborate character of the administrative procedures provided by the Secretary, the courts below held them to be constitutionally inadequate, concluding that due process requires an evidentiary hearing prior to termination. In light of the private and governmental interests at stake here and the nature of the existing procedures, we think this was error."
What it is about this case that the President's lawyers think justifies his decision to summarily execute American citizens, escapes intelligence altogether. In the Elridge case, the Supreme Court made absolutely clear that a procedure must exist and this procedure must include at least the opportunity for the American to contest the decision.
What "process" does the President's lawyers offer as sufficient to conform to the Supreme Court's rule? In their "white paper" the President's lawyers describe the process the President uses to kill Americans, this way:
"In view of [the rule, the President could kill an American citizen] in at least the following circumstances: (1) where an informed, high level official of the U.S. Government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) where a capture operation would be infeasible; and (3) where the kill operation would be conducted consistent with applicable law of war principles. In these circumstances (the President contends) the `realities' of the conflict and the weight of the government's interest in protecting itself are such that the Constitution would not require the government to provide further process to such a U.S. citizen before killing him."
Again, the question is asked: What is the process afforded the American citizen, here, that conforms to the Supreme Court's rule? According to the President's lawyers, the process is not a hearing of any kind afforded the citizen: No notice of the charge against him, no opportunity to contest the "determination" made by the "high-ranking government official." Just zap! That's it. Goodby! In other words, the American citizen's interest in staying alive is given no weight in the "balancing" act the President's lawyers have manufactured. In these lawyers' view what is weighed in the "balancing" is not the Government's interest against the citizen's interest, but the Government's interest against "the `realities' of the conflict." Whatever that is supposed to mean.
A dumb Muslim, who happens to be an American citizen, is sitting at a café table on the Rue Jacob in Paris. He is sipping a Pernod and writing a wish list of items on a pad of paper, which could be used, if purchased, assembled, and delivered, to blow up the White House. Sitting next to him is his six year old son, born in America.
Splat comes the drone."Hey," his wife screams from across the street (She was shopping for Gucci): "What is the charge against him? How about giving him a hearing of some kind, a hearing in which he has a chance to dispute the `determination' of the `high-ranking government official?'" "Sorry," the President says, "the realities of the conflict prevent it."
Hamdi v. Rumsfeld
(2004) 542 U.S. 507
Hamdi is an American citizen. In 2001, he was seized in Afghanistan by the Northern Alliance, a coalition of military groups opposed to the Taliban government, and handed over to the U.S. military. The U.S. Government sent Hamdi to a cell in Guantanamo Bay. The Government contends that it is entitled to hold Hamdi forever, without charge or a hearing. Hamdi's father has filed a petition seeking a writ of Habeas Corpus. The District Court granted the petition and issued the writ, ordering that the public defender be given access to Hamdi. The United States Court of Appeal reversed the District Court's ruling, holding that the District Court had failed to extend appropriate deference to the Government's security and intelligence interests. The Court of Appeals "opined that `if Hamdi is indeed an `enemy combatant' who was captured during hostilities in Afghanistan, the government's present detention of him is a lawful one.'
Issue To Be Decided
Assuming the President has constitutional authority to detain citizens who qualify as "enemy combatants" what process is constitutionally due to a citizen who disputes his enemy-combatant status?
"The risk of an erroneous deprivation of Hamdi's constitutional right not to be deprived of life, liberty, or property without due process of law is unacceptably too high under the President's proposed plan. We therefore hold that a citizen seeking to challenge the President's determination must receive notice of the factual basis for the President's determination and a fair opportunity to rebut the President's factual assertions before a neutral decision-maker."
"Hamdi argues that he is owed a meaningful and timely hearing and that detention that begins and ends with the submission of an affidavit based on third hand hearsay hardly qualifies as such.
Both Hamdi and the Government agree that the writ of habeas corpus, absent suspension, remains available to every individual detained within the United States. All agree suspension has not occurred here. Thus, Hamdi was properly before the District Court to challenge his detention. Federal statutes provide in such case that Hamdi may, under oath, deny the charge against him and is entitled to the taking of evidence in the habeas proceeding by deposition, affidavit or interrogatories. Thus, in the habeas proceeding, Hamdi would have some opportunity to present and rebut facts.
The Government responds with the argument that its presentation to the court of a declaration containing the third party hearsay that Hamdi was an enemy combatant is all that due process required in the matter of an "opportunity to present and rebut facts."
The Government suggests two separate reasons for its position that no further process is due.
First, it argues that because it is `undisputed' that Hamdi's seizure took place in a combat zone, the habeas determination can be made purely as a matter of law, with no further hearing or factfinding necessary. This argument is easily rejected, for the simple reason that the circumstances surrounding Hamdi's seizure cannot in any way be characterized as `undisputed,' as those circumstances are neither conceded in fact, nor susceptible to concession in law, because Hamid has not been permitted to speak for himself or even through counsel as to those circumstances."
Note: Here we are talking merely about the detention of an American citizen; in the President's lawyers' "white paper" we are talking about killing an American citizen, without giving the citizen an opportunity to speak for himself or even through counsel, dispute the President's summary order of execution. Just a pathetic demonstration of the gall of lawyers, willing to make specious arguments for clients.
"The Government's second argument requires closer examination. This is the argument that further factual exploration is inappropriate in light of the extraordinary constitutional interests at stake. The Government argues that Courts have no place in matters of military decision-making and therefore ought to eliminate entirely any individual process. At most, the Government says, the courts should limit their oversight to focusing exclusively on the factual basis supplied by the President to support his own determination. Under this review, a court would assume the accuracy of the Government's articulated basis for holding Hamdi, as set forth in the hearsay declaration, and assess only whether that basis constitutes `some evidence.'
Hamdi counters with the argument that this Court consistently has recognized that an individual challenging his detention may not be held at the will of the President without recourse to some proceeding before a neutral tribunal to determine whether the President's asserted justifications for that detention have basis in fact and warrant in law. Hamdi contends that due process demands that he receive a hearing in which he may challenge the President's claimed basis for detaining him and adduce his own counterevidence.
Both of these positions highlight legitimate concerns. And both emphasize the tension between the autonomy the President insists he is entitled to exercise as Commander-in-Chief and the process that a citizen contends he is due before he is deprived of a constitutional right.
Note: Wow. These stupid, arrogant lawyers think the Supreme Court majority, in Hamdi, will rule their President's way? Just ridiculous.
Conner, Rehnquist, Stevens, Souter. Gone.
The ordinary mechanism that we use for balancing such serious competing interests, and for determining the procedures that are necessary to ensure that a citizen is not `deprived of life, liberty, or property, without due process of law,' is the test we articulated in Mathews v. Eldridge. The Mathews calculus then contemplates a judicious balancing of these concerns through an analysis of `the risk of an erroneous deprivation' of the private interest if the process were reduced."
Do you see it? The President's lawyers wrote sixteen pages of words, invoking as their primary authority the cases of Mathews vs. Elridge and Hamdi v. Rumsfeld, to justify the President's claim that he may summarily kill American citizens, without any judicial oversight or the providing of any "process" to the citizen deemed to die. Yet, the two cases demonstrate the essential fact that the Supreme Court demands there be judicial oversight, geared to the supervision of some process by which the citizen can contest the President's arbitrary determination to strip him of his constitutional right not to be deprived of life, liberty, or property. They must think nobody will read what they wrote.
Let's look at the "process" the President's lawyers think the United States Supreme Court will sign off on, once the issue of the President's kill orders reaches it for decision.
"The condition that the citizen present an `imminent' threat of violent attack against the United States does not require the President to have clear evidence that a specific attack will take place in the immediate future, because the Government must have sufficient time to defend itself. The President must take advantage of the limited window of opportunity to kill the citizen before he disappears from sight.
Thus, a decision maker determining whether an American citizen presents an imminent threat of violent attack against the United States must take into account that the citizen may be constantly plotting attacks, and that the Government may not be aware of all the plots, and thus cannot be sure none is about to occur.
Query: Is this crazy lawyer logic or what? The whole thing boils down to the simple reality that mere suspicion that a citizen may be plotting an attack is enough to justify the President's summarily killing him. There goes the Constitution the Framers wrote, out the window of the White House.
"In sum, an operation in the circumstances and under the constraints described above would not result in a violation of any due process rights."
Query: Do you believe them?
The lawyers who wrote the "white paper" include reference to the Instructions for the Government of armies of the United States, first published by the Lincoln Administration, in April 1863. Plainly, these lawyers did not read the instructions, for if they did they must be very stupid to think the following instruction will pass unnoticed:
Getting out of Café Du Margot alive