Killing al Awlaki "legal" only if it wasn't possible to take him alive

charlie savage in the nyt...

The Obama administration’s secret legal memorandum that opened the door to the killing of Anwar al-Awlaki, the American-born radical Muslim cleric hiding in Yemen, found that it would be lawful only if it were not feasible to take him alive, according to people who have read the document.

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The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans deemed to pose a terrorist threat.

The Obama administration has refused to acknowledge or discuss its role in the drone strike that killed Mr. Awlaki last month and that technically remains a covert operation. The government has also resisted growing calls that it provide a detailed public explanation of why officials deemed it lawful to kill an American citizen, setting a precedent that scholars, rights activists and others say has raised concerns about the rule of law and civil liberties.

But the document that laid out the administration’s justification — a roughly 50-page memorandum by the Justice Department’s Office of Legal Counsel, completed around June 2010 — was described on the condition of anonymity by people who have read it.

The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.

The memorandum, which was written more than a year before Mr. Awlaki was killed, does not independently analyze the quality of the evidence against him.

The administration did not respond to requests for comment on this article.

of course, they don't want to comment... they'd be commenting on a crime...

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Be sure to vote Democratic because the Republicans are too scary! Ya, right...!

the previous post, once removed, in which i complained about being burned out, is largely related to this kind of stomach-turning news, emerging in a seemingly never-ending stream from our hopey-changey president...

glenn, after an absence of a few days due a bad case of food poisoning exacerbated by long-haul travel, shares his pain...

At this point, I didn't believe it was possible, but the Obama administration has just reached an all-new low in its abysmal civil liberties record. In response to the lawsuit filed by Anwar Awlaki's father asking a court to enjoin the President from assassinating his son, a U.S. citizen, without any due process, the administration late last night, according to The Washington Post, filed a brief asking the court to dismiss the lawsuit without hearing the merits of the claims. That's not surprising: both the Bush and Obama administrations have repeatedly insisted that their secret conduct is legal but nonetheless urge courts not to even rule on its legality. But what's most notable here is that one of the arguments the Obama DOJ raises to demand dismissal of this lawsuit is "state secrets": in other words, not only does the President have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are "state secrets," and thus no court may adjudicate its legality.

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I would hope that nobody needs me or anyone else to explain why this assertion of power is so pernicious -- at least as pernicious as any power asserted during the Bush/Cheney years. If the President has the power to order American citizens killed with no due process, and to do so in such complete secrecy that no courts can even review his decisions, then what doesn't he have the power to do? Just for the moment, I'll note that The New York Times' Charlie Savage, two weeks ago, wrote about the possibility that Obama might raise this argument, and quoted the far-right, Bush-supporting, executive-power-revering lawyer David Rivkin as follows:

The government's increasing use of the state secrets doctrine to shield its actions from judicial review has been contentious. Some officials have argued that invoking it in the Awlaki matter, about which so much is already public, would risk a backlash. David Rivkin, a lawyer in the White House of President George H. W. Bush, echoed that concern.

"I'm a huge fan of executive power, but if someone came up to you and said the government wants to target you and you can't even talk about it in court to try to stop it, that’s too harsh even for me," he said.

Having debated him before, I genuinely didn't think it was possible for any President to concoct an assertion of executive power and secrecy that would be excessive and alarming to David Rivkin, but Barack Obama managed to do that, too. Obama's now asserting a power so radical -- the right to kill American citizens and do so in total secrecy, beyond even the reach of the courts -- that it's "too harsh even for" one of the most far-right War on Terror cheerleading-lawyers in the nation. But that power is certainly not "too harsh" for the kind-hearted Constitutional scholar we elected as President, nor for his hordes of all-justifying supporters soon to place themselves to the right of David Rivkin as they explain why this is all perfectly justified. One other thing, as always: vote Democrat, because the Republicans are scary!

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More Glenn, expanding on Charlie Savage

charlie savage's new book, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, is given a thorough review by susang at daily kos, but, even more interesting is glenn greenwald's post on mitt romney that builds on savage's boston globe column from yesterday... ol' mitt has certainly been in the cross-hairs the past couple of days (see my earlier post), and, i must admit, is shaping up to be an even more disturbing individual than his empty-suit persona would suggest...

Romney perfectly expresses the driving view of our GOP-dominated political culture over the last seven years, as profoundly un-American as it is Orwellian: You are in grave danger of being slaughtered by Terrorists. The only thing that matters is that your Leader protect you. In order to be safe, you must place your blind faith and trust in the Leader. There can be no limits on the Leader's power -- not even ones you try to place on him through your representatives in Congress -- otherwise you will be in severe danger and might even lose your freedoms.

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Although one would not have thought it possible, a Mitt Romney presidency, by his own description, would remove us still further from those core [Constitutional] principles. Romney isn't running to be President, but to be King. Anyone who wants to dispute that ought to try to distinguish the fantasies of power Romney is envisioning from those the British King possessed in the mid-to-late 18th Century.

i would liken what george bush and his erstwhile successor, mitt romney, espouse as much closer to dictatorship than monarchy... within monarchical systems, there is at least a rudimentary sense of noblesse oblige*... i see nothing in the bush administration or in romney's spoutings that even faintly resembles such a thing...

* "Noblesse oblige" is generally used to imply that with wealth, power and prestige come social responsibilities. The phrase is sometimes used derisively, in the sense of condescending, patronising or hypocritical social responsibility. The term has also been applied more broadly to those who are capable of simple acts to help another, usually one who is less fortunate.

In ethical discussion, it is sometimes used to summarize a moral economy wherein privilege must be balanced by duty towards those who lack such privilege or who cannot perform such duty. Finally, it has been used recently primarily to refer to public responsibilities of the rich, famous and powerful, notably to provide good examples of behaviour or to exceed minimal standards of decency.

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