I suppose this will surprise some people somewhere, but it seems totally logical to me. If
- the President has the power to order Predator drones to file missiles killing people — including US citizens– abroad, and
- the President has the right to grab US citizens in the US and hold them in a military prison without trial, an attorney, or any contact with the outside world, on the grounds that he thinks they are terrorists or terrorist supporers or might someday in the future be up to something, and
- the President has the power to order the crushing of a child’s testicles to make the parent talk
surely it follows natuarlly that, as a Dept. of Justice official recently argued, this same President may have power to order people he considers to be “terror suspects” killed in US:
Steven Bradbury, acting head of the US Justice Department’s Office of Legal Counsel, told Senator Dianne Feinstein (D-CA) in a closed Senate Intelligence Committee meeting last week that the president may have the executive power to order the killing of terrorist suspects inside the US…
But don’t worry!
An unnamed Justice Department official has since said Bradbury’s comments were in the context of a theoretical discussion and that practical policy would be to capture the terrorist alive in order to interrogate him.
Good thing it’s only a theoretical danger. Sort of like Saddam Hussein…
During the recent hearings, Senator Leahy put it in so many words, and Alito responded:
[…]
LEAHY: Let’s assume there’s not a question of the constitutionality of an enactment. Let’s make it an easy one. We pass a law saying it’s against the law to murder somebody here in the United States. Could the president authorize somebody, either from the intelligence agency or elsewhere, to go out and murder somebody and escape prosecution or immunize the person from prosecution, absent a presidential pardon?
ALITO: Neither the president nor anybody else, I think, can authorize someone to — can override a statute that is constitutional. And I think you’re in this area — when you’re in the third category, under Justice Jackson, that’s the issue that you’re grappling with.
[…]
That doesn’t sound like a very straight answer to me. Disturbing.
( I’m quoting from Opinio Juris, where you can also read Roger Alford’s very interesting comments on the exchange: http://lawofnations.blogspot.com/2006/01/alito-and-presidential-authority-under.html )
Come on Prof. Your post leaves one to make the inferential jump (using the anti-Bush slant of your blog) that Bush will have no valid reason ever to use such powers. This simply cannot be sustained. From the Newsweek article (which you didnt go to the trouble of quoting I know how taxing cut and paste can be):
One former official noted that before Flight 93 crashed in Pennsylvania, top administration officials weighed shooting down the aircraft if it got too close to Washington, D.C. What if the president had strong evidence that a Qaeda suspect was holed up with a dirty bomb and was about to attack?
Let me ask you: If you were President, and a report came in that a commercial jet was off course, headed for Sears Tower, and they could not contact the crew, what would you do? When would you give the order? Would you give the order?
There is nothing wrong with wanting to clobber this horrid administration, but the best Discourse comes when you lay out the facts honestly and consistently. Dont worry, there is plenty to chew on .
Sorry. If “government of limited powers” has any meaning, then it doesn’t include the power to murder US citizens at home. Period. And that’s what a killing sanctioned by neither law nor court is: murder.
>>>Let me ask you: If you were President, and a report came in that a commercial jet was off course, headed for Sears Tower, and they could not contact the crew, what would you do? When would you give the order? Would you give the order?
>>>Let me ask you: If you were President, and a report came in that a commercial jet was off course, headed for Sears Tower, and they could not contact the crew, what would you do? When would you give the order? Would you give the order?
Well, that’s certainly stupid…if I’m understanding the argument correctly. If I’m misunderstanding, fine. But I think the point people were making was about a president ordering the murder of terrorist suspect…someone in their home minding their own business, or at restuarant, or whatever. I don’t think anyone is talking about someone in plane that clearly been hijacked or a plane heading where it ought not head. The police shoot potential threats all the time…but they can’t just shoot someone on a street corner because they think they might be up to no good later. Someone is having a logic disconnect, and usually it’s Bush and his supporters.
So, then, is it that you never give the order? Or, is it that you do give the order because you think (as President) you are acting under the law? Or, you give the order, even if not acting under the law and take your punishment? Or, do you keep avoiding the question? And, further, I noticed you worked in “US citizen” and “at home” into your above comment. Are you hedging a bit?
Are you now going to move towell, if they are not US citizens who hijacked the plane
I hope it does not come to the President having to hope he is tried in a jurisdiction that recognizes the flavor of common law necessity that allows killing of another or perhaps self defense (defense of another). Would you agree that the President is still covered by the common law even if acting as the President? I guess hell have to throw himself on the mercy of the Chicago jury and explain his reasonable/rational purpose when he explains why he shot down the airliner in either self defense or under necessity. (Of course, we need to consider the fighter pilot who actually pulled the trigger as well.)
So, again, because of limited powers, you let the plane hit the tower. Do I have that right?
Mr. Watkins,
This was my original point. The scenarios where the President might use this power is not a suspect minding his own business. That would be an absolute violation of the law as far as I’m concerned.
I am not a Bush supporter, I am a supporter of being honest and not misleading in these serious debates. The situation with the present administration is screwed up enough, that one need not hide the facts or lead their readers to believe something that was not stated. You show that you were lead the way I think the Prof was trying to lead you–that Bush might start ordering assassinations of suspects who posed no serious, eminent, horrible, immediate (all together) threat of any kind. Suspects simply shopping at the market, or meeting in a park, or whatever…
There needs to be a real conversation about what level of freedom we are willing to give up. I vote for: none! To paraphrase ole Ben: Those who would trade liberty for safety get neither. Bush is treading on this safety for your liberty trade-off far too much already (Americans, wake up!!!), even without implying assassinations are to be ordered because actually following the law will be too hard….
I just want to see the Prof. give the whole story. It makes for a much better, real, and important discussion.
Adam-
We all agree that the president can order a hijacked plane to be shot down. That authority existed on September 11, 2001, before Congress authorized war in Afghanistan.
The problem is that the administration has claimed that the authorization for war means they can imprison a US citizen such as Jose Padilla for the rest of his life without trial, and that they can wiretap us without warrants.
While the Newsweek article doesn’t say what the “certain circumstances” are under which Bush official Steven Bradbury thinks Bush can order us killed, we need to know.
Bradbury should be called before Congress.
Given the context of the Bush Administration claiming extreme powers, we shouldn’t just assume the most limited interpretation of Bradbury’s statement.
The question being, who is defined as a terrorist and who decides what level of evidence is required as proof? A process traditionally held by our courts. Even the military has lawyers to define the rules of engagement during conflict.
When you say absolutely not, then the definitions are clear. As soon as you say maybe, then things start getting slippery.
I could be a bit flip and wonder if a particularly influential opposing candidate would be considered a risk by the controlling party. After all, Diebold is having trouble getting their machines into states.
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“We all agree that the president can order a hijacked plane to be shot down. “
This is, or perhaps was, false. See:
https://www.discourse.net/archives/2005/05/two_sets_of_leaks_from_the_nsa.html
Apparently liberal “nuancing” aka flip-flopping is still alive and well in liberal quarters!
Congress can give the President the authority to shoot down a hijacked plane upon determining that certain circumstances exist. But maybe not just any circumstances.
I also think that the President has the inherent authority to order the Air Force to shoot down a hijacked plane engaged in an act of war.
But I don’t think it’s obvious that, absent Congressional authorization, the President has the inherent authority to order the shoot down of a plane, however dangerous, without reason to believe it’s part of an attack on the US. While I think it might be wise for Congress to consider this problem and plan for it (and for all I know it may have already) I don’t think *inherent* Presidential authority extends to killing US citizens engaged in a ‘garden variety’ civilian hijacking. Just can’t find that in my copy of the Constitution. The order would likely be illegal; the Constitutional solution, if it turns out to be a wise decision, is a pardon after the fact. Even a self-pardon.
“Just can’t find that in my copy of the Constitution.”
You’ve GOT to be kidding me. For those non-legal readers who fail to see the irony of the previous post’s resort to textualism, find a copy of the Constitution and find the sections that permit abortion and racial discrimination against whites via affirmative action. Ummm….what happened to the “living document” theory? Ahh..nuance.
So under your theory, suppose McVeigh has his finger on the detonator of the OK. bomb and an FBI sniper has him in his sights, but he’s in a crowd. The President couldn’t order the agent to take the shot?
Somebody needs to get outside, breathe some fresh air, take a walk around the block.
My read of the Constitution is a lot like Chief Justice Marshall’s, and Justice Jackson’s. And, at least as regards executive power, George Washington’s. And even more like Charles L. Black, Jr.’s.
Your FBI example, on the other hand, is simply irrelevant. The FBI exists due to a statute: its powers are set by Congress (and can be revoked by it). If Congress abolished the FBI, then former FBI agents would be limited to the same powers of self-defense (or Good Samaritan defense of others) as you or I under state law, even in the face of a bomb-wielding hostage taker. And note that in most states neither they nor us would be powerless to intervene. That’s a chimera.
Repeat: The example of the FBI has no relevance whatsoever to a discussion of the inherent powers of the Presidency. If the FBI did not exist, the President would not have the inherent power to invent it.
And yes, absent a ‘sneak attack against the US’ situation, which triggers the war powers of the President (or perhaps domestic insurrection requiring a callup of the militia?), I believe that the President doesn’t have inherent powers to order anyone killed, ever, without prior authorization from Congress, either by statute or by declaration of war. Period. Exclamation point.
This view is entirely consistent with an expansive reading of the commerce clause, one that reflects the economic reality that we now live in a highly integrated national economy in a way that the Framers did not. Thus, much which was formerly truly local in its effects is now national in its effects, and thus now a fit subject for national regulation. It’s also consistent with a vision of strong national power, one checked by the requirement that the executive and legislative branches must work together to exercise that power.
For more about my separation of powers views, I invite you to read my student note, In Defense of Administrative Agency Autonomy, 96 Yale L.J. 787 (1987). It may be aged, but I think it holds up reasonably well.
Bricklayer: “…suppose McVeigh has his finger on the detonator of the OK. bomb and an FBI sniper has him in his sights, but he’s in a crowd. The President couldn’t order the agent to take the shot?”
There is a big difference between this example, in which there is an imminent danger to civilians (and the police would have the authority to shoot him regardless of getting permission from the President), and ordering the killing of an individual who is a suspected terrorist but not currently engaged in any kind of terrorist activity. In the latter case, the President is acting as a judge/jury where there are no exigent circumstances. The proper course, if the individual is really a suspected terrorist, is to get a warrant and have him arrested.
Poor Lincoln–his entire presidency demolished in a short blog post.
That’s what comes from a completely untenable view of what “law” is–if you suppose that the only thing that counts as law is Congressional statutes, then you’re stuck.
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