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Hullabaloo


Wednesday, February 06, 2013

 
Briefing Congress isn't adequate

by David Atkins

Facing political and legal pressure, the Administration has decided to brief Congress on its justification for extrajudicial killing of U.S. citizens. It's a little amusing that much of the push to force the Administration's hand is coming from normally authoritarian conservatives worried that they or their friends might find themselves in the crosshairs. But that's not terribly surprising: many liberals aren't concerned about this sort of power being in the hands of President Obama because they trust him not to abuse the power. Similarly, conservative objectors would be mostly silent under a Republican Administration claiming the same authority.

I'm personally less concerned about it than many progressives not because of the partisan identity of the President, but because I believe the dramatic legal line between the rights of those born in the U.S. and those not born here to be antiquated. I believe that foreign-born U.S. citizens should be eligible to serve as President. I don't care if Obama was born in Kenya or not, and I think that Arnold Schwarzenegger is just as American as anyone born here. So by the same token, if Anwar Al-Awlaki is hiding out in Yemen encouraging terror attacks, I'm not losing sleep over a drone strike on him any more than on his Yemeni-born Al Qaeda friend next door. I support the DREAM Act for the same reason I don't care too much about Al-Awlaki: your actions should determine your fate more than the accident of your birth.

That said, we are a nation of laws, and the power of the President to unilaterally decide who lives and dies is a terrible and awful one. Its potential for abuse is extremely high. And while Al-Awlaki himself can rot alongside Osama Bin Laden for all I care, the precedent the killing sets is chilling and unacceptable. In responsible hands, such power is fine. In irresponsible hands it certainly is not.

Unfortunately, we aren't ruled by philosopher-kings who always do what's right. Human nature and history have proven that there are no such perfect beings. Worse, we are a divided nation in which half the country doesn't trust the leaders of the other half. That's why we have rule of law and, though they may be not almost archaic in a 21st century world, pretty strict dividing lines on what kinds of people the President has certain kinds of authority to deal with in certain kinds of ways. In a perfect world, it would be up to an international body to deal with people like Al-Awlaki. But we have neither the legal framework nor the executive authority for that in a world dominated almost entirely by nation-states.

That doesn't mean that the United States must put up indefinitely with American citizens openly associating with Al Qaeda and relocating to lawless areas in which our traditional law enforcement cannot operate, or instigate risky and costly military operations just to possibly bring them in alive. But it does mean that there must be an open, civilian judicial process to convict American citizens in absentia if need be, as well as an invitation to the accused to return home to face trial. If the U.S. government doesn't have enough evidence to convict a U.S. citizen of treason in a civilian court, it should not have the authority to kill him unilaterally. Until we get a workable international framework to deal with stateless terrorist groups at an global level, unilateral decisions to terminate American citizens by the President are unacceptable. Giving the Congress the fig leaf of a briefing doesn't change that fact.


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