Why Does the President Need to Kill You? It's a (State) Secret

A U.S. citizen accused of a crime is entitled to have the evidence against them examined during an open trial and their guilt assessed by a jury of their peers -- unless, of course, the president decides that person may have ties to terrorism and a trial would be too difficult, in which case the death penalty may be unilaterally imposed without so much as a judicial rubberstamp.

And the reasons why? Classified.

In a filing submitted late Friday (pdf) with the U.S. District Court for the District of Columbia, that's the exact authority -- the right of Barack Obama to determine when an American must die without charge or trial -- that the White House asserts with respect to those it claims have ties to terrorism. The filing was made in the case involving Anwar al-Awlaki (or al-Aulaqi), an Islamic cleric residing in Yemen who is on a CIA hit list for allegedly delivering sermons exhorting listeners to attack U.S. interests.

However, al-Awlaki's family and supporters deny he is a terrorist, with his father, joined by lawyers with the ACLU and the Center for Constitutional Rights, filing a suit against the U.S. government challenging his son's presidentially imposed death sentence.

The Yemeni government, a U.S. ally, also proclaims his innocence. “Anwar al-Awlaki has always been looked at as a preacher rather than a terrorist and shouldn’t be considered as a terrorist unless the Americans have evidence that he has been involved in terrorism,” Foreign Minister Abu Bakr al-Qirbi told reporters earlier this year, saying no such evidence has been presented.

But not wanting its reasons or the president's ability to kill in the name of the war on terror reviewed by a mere court, Obama administration lawyers have moved to dismiss the case against them, arguing in the Friday filing that al-Awlaki's father lacks standing -- and that judges lack "authority" and "expertise" to assess "whether a particular threat to national security is imminent and whether reasonable alternatives for the defense of the Nation exist to the use of lethal military force."

According to the White House, only one man -- the president -- possesses that ability (and you thought some of his supporters acted like he was all-powerful). (Read more after the jump.)

What's at issue is not an order issued by solider on a battlefield in the heat of a firefight, mind you, but the president's authority to personally order a man's death in his role as "Commander-in-Chief" of the armed forces. And the administration is determined to protect this assumed right, claiming that even allowing a court to review its evidence for why a U.S. citizen deserves capital punishment, despite not having been charged with much less prosecuted for a crime, would unduly restrict the president's ability "to protect the national security from a terrorist threat."

In addition, the government's filing points to "U.S. support for the Nicaraguan Contras" -- the right-wing paramilitaries backed by the Reagan administration against the elected Sandinista government in the 1980s -- to argue al-Awlaki's case should be dismissed, recounting how an earlier suit regarding the controversial support of the Contras was ultimately dismissed. As the court ruled, it didn't matter if the suit's allegations of wrongdoing -- rape, torture, murder -- were true because U.S. actions in Nicaragua had "received the attention and approval of the president" and his cabinet officials, meaning they were part of the executive branch's foreign policy, therefore precluding "our considering the issue at all."

Richard Nixon once argued that, if the president does something, "then that means it is not illegal." Now the Obama administration appears to be extending that: so long as the president is aware of something, then it must not be illegal.

Finally, the Obama administration states that the court ought to dismiss al-Awlaki's case essentially because, should it go to trial, the plaintiff would be allowed to present -- and demand -- actual evidence of a crime, which would be unacceptable. Indeed, "the Court should find that the plaintiff cannot establish a likelihood of success on the merits, and should dismiss the case, because specific categories of information properly protected against disclosure by the [state secrets] privilege would be necessary to litigate each of plaintiff's claims and the case therefore cannot proceed without significant harm to the national security of the United States."

It's hard to overstate what the administration is asserting here. Simply put, the president is declaring that he and he alone has the power, vested in him in his role as Commander-in-Chief, to decide when "lethal military force" may be imposed on a U.S. citizen. He doesn't need to prosecute this person for a crime; he doesn't need to charge them with one. He need only assert that someone has ties to terrorism and they may be killed under the legal auspices of the war on terror -- and no court, no person other than Barack Obama, may review the evidence purportedly justifying such an extraordinary assertion of presidential power. (You may have last seen such a broad claim to power back when it was better known as the divine right of kings.)

So extreme is Obama's position that not even former lawyers with the Bush administration say they are comfortable with it.

“I’m a huge fan of executive power," former Bush lawyer David Rivkin told The New York Times earlier this month, "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."

It's not too harsh for the Obama administration.

Photo Credit: Bob Davis