Unauthorized Government
Killing by Drones, Bombs, or Other Means Is
Still Murder
By Ivan Eland
February 10, 2015 "ICH"
- Although U.S. drones firing missiles at
suspected bad guys in faraway places -- such
as Pakistan, Yemen, and Somalia -- have
gotten much publicity in recent years, it
was recently revealed that the CIA
assassinated top Hezbollah terrorist
Imad Mugniyah with a good old-fashioned car
bomb in Damascus, Syria with President
George W. Bush's strident approval in 2008.
Because of an executive order, signed in
1975 by President Gerald Ford, prohibiting
assassinations by the CIA, presidents
usually get around that order by using the
military to kill an enemy bigwig and then
make the disingenuous claim that it was
merely taking out a "command and control"
target rather than an assassination. In this
case, Bush, never one to observe
constitutional or legal niceties, became
incensed that the CIA director was being too
timid in carrying out the hit using the
exploding car. The real issue in such cases
is not whether it is more dangerous to
liberty to kill the enemy using a high-tech
drone or a more traditional car bomb, but
whether it constitutional to do either.
Even Judge Andrew P.
Napolitano, the author of numerous books and
a legal expert for Fox News, in an otherwise
excellent history of the usurpation of
unique American civil liberties at the
expense of ever-expanding executive power
(see Suicide Pact: The Radical Expansion
of Presidential Powers and the Lethal Threat
to American Liberty) focuses too much
on President Barack Obama's killing of
American citizens without due process -- for
example, Anwar al Alawki in Yemen in 2011.
Napolitano correctly argues that an American
president is essentially claiming the right
to murder his own citizens without prior
legal niceties, but he focuses too much on
the use of exotic drone technology to do so
and not enough on a larger and more
important problem. If anyone -- U.S. citizen
or not -- is attempting to attack the United
States, the president should have a right to
take them out, provided the Congress has
authorized military action or declared war.
Even then, according to the founders'
original constitutional vision, if the
country is under imminent threat of attack,
the president can take appropriate action
and get congressional authorization at the
earliest possible time. If the president
doesn't have such legislative approval or a
legitimate "imminent attack" rationale, he
is essentially murdering people -- U.S.
citizens or not.
However, Obama did not
start the congressionally unauthorized drone
wars in Pakistan, Yemen, and Somalia --
which because of this lack of legitimate
authority are essentially murdering people
without due process -- George W. Bush did.
But Obama has accelerated the illegitimate
killing. Neither president can be given an
exemption for imminent attacks; the
Pakistani Taliban in Pakistan, al Qaeda in
the Arabian Peninsula in Yemen, and al
Shabab in Somalia have been around a long
time, so both presidents have had plenty of
time to get congressional approval for the
drone wars.
Of course, both presidents
would claim that the post-9/11 Authorization
of the Use of Military Force (AUMF) gave
them approval to go anywhere in search of al
Qaeda-related groups. However, upon reading
the AUMF, that is not the case. The AUMF
merely authorized the president to go after
those who perpetrated or supported the 9/11
attacks or who harbored the attackers; thus,
the authorization would be limited to the
central al Qaeda group and the Afghan
Taliban that had harbored them. Groups only
loosely affiliated with al Qaeda, and that
had nothing to do with the 9/11 attacks --
such as those mentioned in Pakistan, Yemen,
and Somalia -- are clearly outside the
purview of the AUMF. In other words, when
Obama killed an American citizen in the main
al Qaeda group, such as Osama bin Laden, it
was not murder, because a legitimate war
exists with that group. In contrast, Obama's
killing of at least four Americans in the
other theaters was murder -- but so is
killing people of other nationalities,
because he doesn't have the authority to do
that either without due process (unless he
can get Congress to approve military action
in those places).
The only other drawback to
Napolitano's thoroughly excellent coverage
of expansion of presidential power, and it's
related to this topic, is that he underplays
the expansion of the president's war power
at Congress's expense. Since 1950, during
the Korean War, for the first time in
American history, President Harry Truman
declined to ask Congress to declare war to
authorize a major military action. This
unconstitutional usurpation of power by the
executive is every bit as serious as
Napolitano's meticulous documentation of
presidential excesses in trampling of civil
liberties at home during wartime.
The nation's founders
placed the war power clearly in the hands of
the people's branch of government, the
Congress, to avoid the cancer that was
running rampant then in Europe -- executives
(mainly kings) fighting wars of
aggrandizement at high cost, in blood and
treasure, to the common citizen. Thus, if
the president wants to kill enemies abroad,
any killing -- whether it's done with
drones, bombs, or bullets or whether it
kills Americans or foreigners -- should be
regarded as illegal and unconstitutional
unless it has been approved by the
legislative branch. Yet even this
legitimately legal option might be used too
much. Let's treat suspected terrorists as
criminals, not warriors, and first attempt
to use law enforcement cooperation among
nations to capture and try them, using
acceptable standards of due legal process.
Using the criminal justice system as a first
resort, and congressionally approved
military action only as a last resort, would
also avoid retaliatory blowback terrorism in
response to the now profligate and illegal
U.S. armed intervention in far flung places.
Ivan Eland is Senior Fellow
and Director of the Center on Peace &
Liberty, The Independent Institute.
http://www.independent.org/