A resident neocon at the Washington Post, Charles Krauthammer yesterday wrote “In defense of Obama’s drone war”, arguing that targeted assassinations of individuals, including U.S. citizens, is perfectly legal, which argument he premises upon a lie. He writes:
1. By what right does the president order the killing by drone of enemies abroad? What criteria justify assassination?
Answer: (a) imminent threat, under the doctrine of self-defense, and (b) affiliation with al-Qaeda, under the laws of war.
Imminent threat is obvious. If we know a freelance jihadist cell in Yemen is actively plotting an attack, we don’t have to wait until after the fact. Elementary self-defense justifies attacking first.
Al-Qaeda is a different matter. We are in a mutual state of war. Osama bin Laden issued his fatwa declaring war on the United States in 1996; we reciprocated three days after 9/11 with Congress’s Authorization for Use of Military Force — against al-Qaeda and those who harbor and abet it….
A sleeping Anwar al-Awlaki could lawfully be snuffed not because of imminence but because he was self-declared al-Qaeda and thus an enemy combatant as defined by congressional resolution and the laws of war.
First, Krauthammer’s argument that a suspected terrorist allegedly planning an attack on the U.S. constitutes an “imminent threat” justifying his extrajudicial assassination has no basis in law. Under international law, of course, such as is enshrined in the U.N. Charter, a nation may use force in self-defense against armed attack from another nation. A terrorist plot, however, is a different matter. If the U.S. has knowledge of such a conspiracy, the proper legal mechanisms by which it can act to prevent an attack are those of law enforcement.
Second, Krauthammer’s claim that the authorization for the use of force was broadly “against al-Qaeda”, such that anyone dubbed a member of the group or one of its many affiliate groups, is a lie. That Congressional resolution, which became Public Law 107-40, authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001”. That is, this law authorized the President to use military force only against those the President has determined—with or without evidence—were actually involved in the 9/11 attacks.
Moreover, this law is unconstitutional, as the power to authorize the use of military force was granted under the U.S. Constitution to the Congress, not to the Executive, and the Congress may not relegate an authority granted only to it to the President.
Moreover, a Congressional resolution authorizing the use of force does not supercede international law, which under the Constitution is “the Supreme Law of the Land”, and, needless to say, bombing other countries at will is a blatant violation of international law and of their national sovereignty.
Moreover, the right to due process is a basic human right, first recognized in the Magna Carta and explicitly protected in the U.S. Constitution. The U.S. government has no authority to deny any individual their right to due process and execute them, much less American citizens. Any Congressional resolution or Executive order doing so is also a blatant violation of the U.S. Constitution.
Krauthammer’s answer to this is:
2. But Awlaki was no ordinary enemy. He was a U.S. citizen. By what right does the president order the killing by drone of an American? Where’s the due process?
Answer: Once you take up arms against the United States, you become an enemy combatant, thereby forfeiting the privileges of citizenship and the protections of the Constitution, including due process.
Notice that Krauthammer relegates due process to a “privilege” granted to you by the state. Nonsense. It is a right which the state may not deprive you of—as the Fifth Amendment to the Constitution states explicitly.
Krauthammer argues further:
Now, for those who believe that the war on terror is not war but law enforcement, (a) I concede that they will find the foregoing analysis to be useless and (b) I assert that they are living on a different and distant planet.
For us earthlings, on the other hand, the case for Obama’s drone war is strong. Pity that his Justice Department couldn’t make it.
Indeed, his foregoing analysis is useless. But I can assure him that I am living right here on planet Earth. His inability to form an actual argument here to defend his assertion that terrorism is not a matter to be dealt with through law enforcement is instructive, and his declaration that the case that Obama’s drone war is legal “is strong” is an opinion without a leg to stand on.
Which also helps explain why the Justice Department also hasn’t been able to make the case.