Assassin In Chief?

Angry Obama SC Assassin in Chief?

Exercising a power that no prior president ever thought he possessed — a power that no prior president is known to have exercised — President Obama admitted that he ordered the execution of American citizens, not on a battlefield, based on his belief that they were involved in terrorist activities.  It is known that at least three U.S. citizens, including a 16-year old boy, were killed on the president’s order in drone strikes in Yemen in 2011.

As the worldwide drone program ramps up, there have been increasing calls for the president to reveal the basis for his claimed authority.  Only a few weeks ago, U.S. District Court Judge Colleen McMahon denied both the ACLU’s and New York Times‘ requests under the Freedom of Information Act to obtain any and all legal documents prepared in support of the president’s claim of unilateral powers.  While Judge McMahon was concerned that the documents “implicate serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States, and about whether we are indeed a nation of laws not of men,” she felt constrained by precedent to withhold them.  Now, a bipartisan group of 11 senators has written a letter to president Obama asking for “any and all legal opinions” that describe the basis for his claimed authority to “deliberately kill American citizens.”

However, not until the Senate began gathering information for hearings on John Brennan’s confirmation as CIA director, to begin February 7, has public attention finally been focused on this remarkable presidential usurpation of power.

On the night of February 4, the walls of secrecy were breached when NBC News released a leaked U.S. Justice Department White Paper entitled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa’ida or An Associated Force.”  Now we can see why the Department of Justice has been so reluctant to share the basis for its legal analysis.  It is deeply flawed — based on a perverse view of the Fifth Amendment Due Process Clause.  Additionally, the white paper completely ignores the procedural protections expressly provided in the Constitution’s Third Article — those specifically designed to prohibit the president from serving as prosecutor, judge, jury, and executioner.

The white paper does not seek to delimit the federal power to kill citizens, but simply sets out a category of “targeted killing” of American citizens off the battlefield on foreign soil which it deems to be clearly authorized.  Moreover, this power is not vested exclusively in the president, or even the secretary of defense, or even officials within the Department of Defense — rather, it can be relied on by other senior officials of unspecified rank elsewhere in government.

According to the white paper, there are only three requirements to order a killing.  First, “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.”  Second, capture is “infeasible.”  And third, the ” operation would be conducted in a manner consistent with the applicable law of war principles.”  Indeed, from the white paper, it is not clear why killings of U.S. citizens on American soil would be judged by a different standard.

Mimicking a judicial opinion, the White Paper employs pragmatic tests developed by the courts to supplant the plain meaning of the Fifth Amendment Due Process and Fourth Amendment Search and Seizure texts.  Balancing away the constitutionally protected interests of the citizen in life, liberty, and property against the more important “‘realities’ of the conflict and the weight of the government’s interest in protecting its citizens from an imminent attack,” the Justice Department lawyers have produced a document worthy of the King Council’s Court of Star Chamber — concluding that the U.S. Constitution would not require the government to provide notice of charges, or a right to be heard, “before using lethal force” on a U.S. citizen suspected of terrorist activity against his country.  How very convenient.  The Obama administration lawyers appear to have forgotten that the Star Chamber was abolished by the English Parliament in 1641 in order to restore the rule of law adjudicated by an independent judiciary, terminating the rule of men administered by the king’s courtiers.

Also, conspicuously missing from the Justice Department’s constitutional analysis is any recognition that the Founders already balanced the life, liberty, and property interests of an American citizen suspected of “levying war against [the United States], or in adhering to their enemies, giving them aid and comfort,” and provided them the specific procedural protections in Article III of  the Constitution.  When a U.S. citizen is suspected of treason, the constitutional remedy is not to invent new crimes subject to the summary execution at the pleasure of the president and his attorneys.  In Federalist No. 43, James Madison proclaimed that the Treason Clause would protect citizens “from new-fangled and artificial treasons … by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it[.]“  To that end, the Constitution does not permit the Obama lawyers to invent an elastically defined offense of “an imminent threat of violent attack against the United States,” in substitution for the constitutionally concrete definition of “levying war against [the United States], or in adhering to their enemies, giving them aid and comfort.”

Moreover, Article III, Section 3 of the Constitution requires trial in “open court” — not in some secret “war room” in an undisclosed location.  That same section of Article III requires proof by “the testimony of two witnesses to the same overt act, or on confession” — not by a unilateral “determin[ation] that the targeted individual poses an imminent threat of an attack against the United States.”  Finally, as is true of “all crimes,” Article III, Section 2 requires “trial … by jury” on a charge of treason, not trial by some unidentified “high-level official of the U.S. government[,]” no matter how well-”informed” he may be.  In short, the Constitution provides that an American citizen must be tried and punished according to the judicial process provided for the crime of treason, not according to some newfangled and artificial executive “process” fashioned by nameless collection of lawyers.

These nameless lawyers have also ignored the Justice Department’s own venerable precedents.  The White Paper relies on the “laws of war” — but laws of war do not control here.  On August 21, 1798, U.S. Attorney General Charles Lee — serving under President John Adams — directed to the U.S. secretary of state an official opinion in which he determined that in the undeclared state of war between France and the United States, “France is our enemy; and to aid, assist, and abet that nation in her maritime warfare, will be treason in a citizen[, who] may be tried and punished according to our laws[, not like a French subject, who must be] treated according to the laws of war.”

It is a measure of how far we have fallen as a nation — not only that President Obama asserts and exercises such a terrible power, but that only 11 U.S. senators would be willing to affix their names to a letter to ask the Obama administration to provide its legal reasoning.  If John Brennan is confirmed as CIA director, and the killings of U.S. citizens continue based on this whitewash of a white paper, then the U.S. Senate will have yielded up to the president without even a fight the power to kill citizens without judicial due process — a power that has been unknown in the English-speaking world for at least 370 years.

 

Herb Titus taught constitutional law for 26 years, concluding his academic career as founding dean of Regent Law School.  Bill Olson served in three positions in the Reagan administration.  They now practice constitutional law together, defending against government excess, at William J. Olson, P.C.  They filed an amicus curiae brief supporting a preliminary injunction in the Chris Hedges challenge to the detention provisions of the National Defense Authorization Act of 2012 (“NDAA”), addressing the Treason Clause, and also filed an amicus curiae brief in that case in the U.S. Court of Appeals for the Second Circuit.  They can be reached at wjo@mindspring.com or twitter.com/olsonlaw?

 

Photo credit: SS&SS (Creative Commons)

 

Arizona V. United States: Reading The Tea Leaves Of Oral Argument

US supreme court building SC 236x300 Arizona v. United States: Reading the Tea Leaves of Oral Argument

On April 25, 2012, the U.S. Supreme Court heard oral argument in Arizona v. United States, involving the constitutionality of the State’s effort to combat illegal immigration. In one sense, it was a rematch between former Solicitor General Paul Clement, arguing for Arizona, and the current Solicitor General, Donald Verrilli, contending for the United States. The two had squared off just a month before in United States v. Florida, the battle royale over the constitutionality of the ObamaCare mandate requiring everyone to purchase health care insurance prescribed by the federal government.

In each case, the justices, by their questions and comments, appeared to disfavor the Obama administration’s position. In the ObamaCare case, several justices expressed concern that, if the individual mandate were to be found constitutional, it would dismantle the federal system, rendering the Tenth Amendment reservation of powers to the States and the people a dead letter. Now, in the Arizona immigration case, several justices expressed concern that the Obama Administration’s claim of “exclusive power” to regulate immigration would have a similar impact on the independence and sovereignty of the 50 states.

The issue arose early in the oral argument, even before the solicitor general could make his claim of exclusivity. Justice Scalia kicked off, asking Mr. Clement whether he would concede “that the State has to accept within its borders all people who have no right to be there, that the Federal Government has no interest in removing … and the State has no power to close its borders to people who have no right to be there.” Remarkably, Mr. Clement did not answer the justice’s inquiry with a firm no, prompting Justice Kennedy to inquire: “Can we say, or do you take the position that a State must accept within its borders a person who is illegally present under Federal law?” This time Mr. Clement answered: “I think my answer to that is no.” But he did not back up his answer with either reason or conviction, resting Arizona’s case on the sole ground that the state has the constitutional right to help the federal government to enforce federal law.

In contrast, General Verrilli boldly rejected Mr. Clement’s basic argument that the Arizona immigration law was nothing more than the state “aid to Federal immigration enforcement,” when as a matter of fact, “Arizona is pursuing its own policy of attrition through enforcement and that the provisions of this law are designed to work together to drive unlawfully present aliens out of the State. That is something Arizona cannot do because the Constitution vests exclusive –”

Before General Verrilli could finish his sentence, Justice Sotomayor asked him to “answer Justice Scalia’s earlier question…whether it would be the Government’s position that Arizona doesn’t have the power to exclude or remove … from its borders a person who’s here illegally.” Given the opportunity to finish his sentence, General Verrilli stated: “It is our position [that] the Constitution vests exclusive authority over immigration matters with the national government.”

In response, Justice Scalia jumped back into the fray, noting, first, that the constitutional grant of exclusive authority is over “naturalization which we’ve expanded to immigration”:
But all that means is that the Government can set forth the rules concerning who belongs in this country. But if, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power? What does sovereignty mean if it does not include the ability to defend your borders?

Undaunted, General Verrilli pressed forward, asserting that “the Framers vested in the national government the authority over immigration because they understood that the way this nation treats citizens of other countries is a vital aspect of our foreign relations.” Citing the import/export provision in Article I, Section 10, Clause 2, Justice Scalia fired back:
The Constitution recognizes that there is such a thing as State borders, and the States can police their borders, even to the point of inspecting incoming shipments to excluded diseased material.

Thereafter, Justice Scalia and General Verrilli would clash several times, with the general sticking to his claim of national exclusivity over immigration as essential because of “significant real and practical foreign relations effects,” culminating in the general’s calling attention to “Mexico['s] central role in this situation,” to which Justice Scalia retorted: “So we … have to enforce our laws in a manner that will please Mexico. Is that what you’re saying?”

No doubt, Arizona’s cautious approach was dictated by its decision not to challenge what Justice Scalia described as what “we’ve” — that is, the Court — read into the Constitution concerning the power of Congress over immigration.

Our firm filed two amicus curiae briefs in the Supreme Court in this case supporting Arizona — one last September at the petition for certiorari stage, and one this February on the merits. Our clients on these briefs are U.S. Border Control, U.S. Border Control Foundation, Policy Analysis Center, Institute on the Constitution, The Lincoln Institute for Research and Education, Conservative Legal Defense and Education Fund, Gun Owners of America, Inc., Gun Owners Foundation, English First, English First Foundation, Virginia Delegate Bob Marshall, Oklahoma Representative Charles Key, and Wyoming Senator Kit Jennings.

Our amicus brief in support of Arizona did what Arizona chose not to do — explain the Founders’ original constitutional plan.

First, we pointed out that the federal government’s power over immigration is not among those enumerated in the Constitution, but one that has been grafted onto the “naturalization” power by the Court as a power “inherent in sovereignty, and essential to preservation.”

Then, we argued that as a nation of dual sovereignty each State, like the national government, has the same inherent power of sovereignty, including the power of self-preservation.

Third, we noted that while the national government’s power was supreme in the regulation of its international boundaries, the States’ internal boundaries remained in the power of the States.

Finally, we observed that, with respect to a state’s internal boundaries, Article IV, Section 2 and the Fourteenth Amendment expressly limited each state’s power as applied to citizens of other states and citizens of the United States, but not with respect to citizens of foreign nations.

Justices Scalia and Kennedy’s questions seemed to track our brief’s line of reasoning, asking whether Arizona had the power to exclude aliens who are not legally in the country. If so, then Arizona’s policy of enforcement by attrition is perfectly permissible, General Verrilli’s claims to the contrary notwithstanding.

If Arizona has retained its inherent sovereign authority to defend its internal borders, except as specifically limited by the Constitution, then not one of the four contested provisions of the state’s immigration law is preempted by federal law.

First, the overall purpose of the law is constitutional in that it is predicated on an incontestable “interest in the cooperative enforcement of federal immigration laws … to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” Such unlawful presence threatens the integrity of Arizona as a political and economic community, enhancing the risk of voter fraud and decreasing economic opportunities for Arizona citizens and their fellow Americans.

Second, sections 2(B) and 6 are designed to aid federal immigration enforcement, and are in harmony with federal statutes as written by Congress. Such provisions are not subject to pre-emption because Arizona’s priorities may differ from those of the executive department of the federal government. Pre-emption can never be based upon the discretionary policies of enforcement, as the Obama administration has argued here.

Third, section 3 of the law simply makes it a state crime not to comply with the federal law requiring all aliens to carry an alien registration card. This is not at all different from the state duplicating federal law prohibiting bank robbery. Furthermore, the State has a sovereign interest in identifying whether a person is a U.S. citizen because the Fourteenth Amendment provides that every resident of the state who is a U.S. citizen is, by definition, a citizen of the state.

Fourth, section 5(C), which imposes penalties on illegal aliens seeking employment in Arizona, is consistent with the exercise of its police power to preserve Arizona jobs for those persons who are lawfully part of the state’s economic and political community. While the federal law only penalizes employers of illegal aliens, Arizona’s interest in preserving jobs for persons lawfully in the state is necessary to preserve the public fiscal and the economic vitality of business within the state.

If the Arizona case is decided according to the measure of the Supreme Court’s jurisprudence in this area as argued narrowly by Arizona, the decision could be very much in doubt. However, if the case is decided based on the Founders’ plan for a robust role for the states and a limited role for the federal government, the decision should uphold the Arizona law.

Herb Titus taught constitutional law for 26 years, concluding his academic career as founding dean of Regent Law School. Bill Olson served in three positions in the Reagan administration. They now practice constitutional law together, defending against government excess, at William J. Olson, P.C. They can be reached at wjo@mindspring.com or on Twitter @Olsonlaw.

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