Thursday, October 6, 2011

Against (Secret) Death Panels

. Thursday, October 6, 2011

This is well outside of my normal purview, but since the assassinations of Anwar al-Awlaki and Samir Khan, both American citizens, I've been thinking a good bit -- not for the first time, thank you -- about the wide space between our conception of the checks and balances on the capricious exercise of government power, and the reality of it. People talked about this some during the Bush administration, but I'm now of the opinion that the primary difference between the Bush administration and others in recent history is the former's simple brazenness: Bush would come right and say "I'm the decider", and he'd have his lawyers so obviously butcher the tradition of law to rationalize his policies, and his Vice-President would declare himself a member of neither the executive nor legislative branches and therefore not subject to any oversight from anyone ever, and his ambassador to the UN openly advocated abolishing the UN... Bush just didn't give a damn. He'd practically dare anyone to do anything to slap his wrists. Every other president before or since has at least pretended to uphold the law. Bush said that wasn't necessary, since any action taken by the president was ipso facto permissible.

In other words, the difference between the Bush administration and other administration is that the former was brazen. But that may be the only difference. The Bush administration may have lied to get the US into a war -- or been selective in their disclosure of the known facts, depending on how charitable your interpretation is -- but the Reagan administration lied about the existence of a war. I'm not going to go down the list, but it's now indisputable that every presidential administration since World War II* has used the tools of war at their own discretion, with essentially no accountability. Alright, I know this is no new news.

But this is, to me at least. It seems that the Obama administration convenes a panel of NSC folks who determine who the US will attempt to assassinate. Without legal mandate or any oversight, of course. Here's how Reuters puts it:

There is no public record of the operations or decisions of the panel, which is a subset of the White House's National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.
This is, of course, completely obscene. There may be a case to be made that the president needs the authority to attack high-level targets at short notice, and use lethal force if that's the best or only option. I would hope that decisions involving the use of lethal force would be reviewable by some sort of oversight committee, but I could understand the argument in favor of such a policy. But as far as I can tell the president does not possess that power in any established legal sense. That makes this panel as it exists today no more than the District of Columbia's branch of Murder, Inc. but with the full resources of the United States government at their disposal. Legal immunity too.

I don't see how this is an acceptable state of affairs.

*And possibly before, although my knowledge of American history is murkier before then.

(Via @interfluidity)


LFC said...

I don't disagree with the post but would note that the Reuters story indicates that the "secret high-level panel" is involved only when the issue is putting US citizens on a capture-or-kill list; others may be put on such a list by "the intelligence community" (quoting the vague language later in the piece) without the involvement of the NSC panel or the principals' committee. So in practice this panel may not meet often or do much, since, as the piece also notes, Awlaki is apparently the only US citizen so far targeted in this way. (Samir Khan was killed in the same strike but according to the piece was 'in the wrong place at the wrong time' rather than being specifically targeted.)

As to the president's authority to order these kinds of assassinations, every president since at least WW2 seems to have, as you suggest, embraced a broad view of the commander-in-chief authority that includes the power to use lethal force when the pres. deems it vital or necessary. The precise legal justifications offered may differ from case to case, but presidents basically maintain they have the authority to do what they deem required to protect the nat'l security. So yes, in this particular respect the difference betw. G.W. Bush and Obama was the former's brazenness.

Against (Secret) Death Panels
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