Palin was Right About those Government Death Panels

Well, the death panel has nothing to do with universal health care. But apparently it does exist, sited in the National Security Council.

I discussed the assassination of Anwar al-`Awlaqi last Saturday, just trying to reason through the moral, legal and constitutional issues as a layperson. When I got to the end of the posting, I just could not understand how what was done was legal or constitutional, since al-`Awlaqi was deprived of his 6th amendment rights to a trial.

Of course, under the laws of war (e.g. Hague IV), virtually anyone can be killed who is contributing to the war effort. But I still don’t understand how a drone strike by the CIA on a civilian in Yemen, authorized by a civilian body, is part of a war as the word is commonly understood.

A friend suggested that the assassination was authorized under the two executive orders (Ford and Reagan) forbidding assassination, which have a loophole. Assassination is permitted by them if a person is a concrete threat to the United States, i.e., is actively planning an attack on it, and if the president so certifies and “Congress” agrees. My interlocutor suggested that agreement by the Senate Select Committee on Intelligence would be enough to constitute congressional approval.

But now Reuters is reporting that President Obama did not even sign off on the kill order, so that that he could remain politically protected. (If what was done was legal, why would the president have to be “protected”)? Nor does Congress, even a rump Congress in the form of a committee, seem to have been involved. So the loophole in the anti-assassination executive orders did not come into play.

Rather, a secret cell within the National Security Council (an advisory body that reports to the president and is considered within the executive branch of the US government) has drawn up a kill list, and gets an authorizing memo from the Department of Justice.

The grounds for assassinating someone are self defense (under the UN Charter, all member states have a recognized right to defend themselves from attack) and the 2002 congressional authorization for the war on terror.

These two grounds for action, and having the order come from the NSC with Eric Holder’s imprimatur, are extremely troubling. Under the Constitution, a jury should decide if a US citizen has committed treason against the US. The National Security Council isn’t even mentioned in the constitution, and it decides whether to blow an American away, without even the president’s signature?

Moreover, the doctrine, if that is what it is, seems full of holes. If al-`Awlaqi were killed as an enemy officer, then why are the civilians at DOJ and the NSC making the decisions, and why is the order carried out by the civilian CIA?

And, how solid is the intelligence showing that al-`Awlaqi had an operational and not just a propaganda role in al-Qaeda? As good as the intel on Iraq’s mobile biological weapons labs? Who decides how good the intel is, i.e., how solid the charges are?

If the Reuters report is correct, the US government has completely gone off the rails and we now have a black cell inside the NSC that has substituted itself for the constitution, for the courts, and for due process, on the grounds that it is fighting a war against 300 guys in Yemen and 4 guys in Thailand and 90 guys in the Philippines, etc., etc.

Glenn Beck once fantasized that Obama wanted to send drone strikes down on patriots in the Midwest. More craziness, I thought. But what if the NSC decides that objecting to al-`Awlaqi’s assassination constitutes a form of material support to terrorists? Couldn’t they just have a drone directed down onto your house? President Obama, by his cowardice in the face of the National Security State, is actually setting things up so that even Glenn Beck’s conspiracy theories begin to sound not so insane.

Congress and the courts need to intervene here. There are too many laws being broken by the US government, too many questionable assumptions being made, and too many contradictions in official policy for these actions to be considered under the rule of law. A legal framework has to be erected for drone strikes on Yemen and Pakistan, which at the moment are cowboy special operations, if they are to continue, and there should be a transparent Status of Forces Agreement with those countries. Otherwise eventually an American government official is going to end up in the dock at the world court in the Hague. If we are at war with a small asymmetrical organization, some other branch of government has to certify that besides the executive, which typically makes expansive claims about its authority to act. If US citizens are being executed or assassinated, the courts have to be brought in somehow, some way.

Philip K. Dick couldn’t have made this stuff up.