A reader writes:
I think Radley Balko, like many other commentators, is distorting and overreacting to the issues of "state secrets" and the "assassination list," which have now merged into a single issue with the suit by Anwar al Awlaki's father.
First, he states that "Obama is arguing the executive has the power to execute American citizens without a trial." That's false. Execution is a killing that is done when the person or agency doing the killing has physical custody of the person killed. As far as I know, Anwar al Awlaki is the only American citizen that is on the so-called assassination list. He is presently hiding in a lawless region of Yemen and is alleged to be an operational agent of al Qaeda. Essentially he is subject to the same drone strikes that other al Qaeda members in Yemen and Pakistan have been. The only difference is his citizenship. You can reasonably call the attempt to kill Awlaki by airstrike an assassination attempt or an attempted "targeted kill," but it is in no way an "execution."
Second, Balko talks about this execution occuring "without even so much as an airing of the charges against them, ... in complete secrecy, with no oversight from any court." When does anybody killed in war get due process?
There is a legitimate argument about whether the U.S. has the right to be committing acts of war in Yemen and Pakistan, but the idea that American citizens who join enemy forces to fight the U.S. are subject to being killed just like any other combatent isn't even controversial.
Third, Balko says: "Obama is arguing that he has the right to keep everything about these executions secretincluding the reasons they were orderedmerely by uttering the magic phrase 'state secrets.' This is wrong too. When the government is sued and raises the "state secrets" defense, its use of the defense and the factual basis therefore are subject to judicial review. In fact the court in Jeppesen, the recent case in the 9th Cir. where the DoJ asserted the state secret's privilege, the court stated in its decision:
We take very seriously our obligation to review the government’s claims with a very careful, indeed a skeptical, eye, and not to accept at face value the government’s claim or justification of privilege.
We have thoroughly and critically reviewed the government’s public and classified declarations and are convinced that at least some of the matters it seeks to protect from disclosure in this litigation are valid state secrets, "which, in the interest of national security, should not be divulged." Reynolds, 345 U.S. at 10. The government’s classified disclosures to the court are persuasive that compelled or inadvertent disclosure of such information in the course of litigation would seriously harm legitimate national security interests.
So there is judicial review of these claims of state secrets.
Finally, Balko concludes: "So yeah. Tyranny. If there’s more tyrannical power a president could possibly claim than the power to execute the citizens of his country at his sole discretion, with no oversight, no due process, and no ability for anyone to question the execution even after the fact . . . I can’t think of it." So, this is wrong for the reasons outline above: it's not an execution, there is at least potential for judicial oversight. It's also wrong for the additional reason that the governmental authorities authorized to do the killing are the CIA and the U.S. military, neither of which can operate on U.S. soil.
Radley's argument has basically as much relationship to reality as the "death panel" claims that politicians on the right were making last year during the healthcare reform debate.
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