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ASSASSINATING CITIZENS: How not to fight terror

By Brian Earp

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In this ‘hour’ of danger: Civil liberties and the eternal threat of terror

NBC’s Pete Williams reports:

The U.S. government is legally justified in killing its own citizens overseas if they are involved in plotting terror attacks against America, Attorney General Eric Holder said Monday.

“In this hour of danger, we simply cannot afford to wait until deadly plans are carried out, and we will not,” he said in remarks prepared for a speech at Northwestern University’s law school in Chicago.

Pay attention to Mr. Holder’s choice of words here. This hour of danger? Excuse me: an “hour” is a bounded stretch of time – and not very long. But terrorism is a threat with no border – it has existed always, and will continue indefinitely. The “war on terror” cannot be won: you can kill a terrorist, sure, but you cannot eliminate a tactic. So let us not talk about an “hour.” This sort of speech is insidious. We all know that an hour takes sixty minutes and then it’s finished. But terrorism will present a “danger” forever.

So how should we respond? How does a country protect its citizens in the face of eternal danger? One thing it must not do is suspend the rule of law indefinitely, or undermine the basic liberties it was formed to defend. Yes, if there is an imminent threat, if lives are at stake, if capture is impossible, and if killing a U.S. citizen without trial is the only way to prevent a bomb going off … then go in for the kill. A government who failed to do so would be fatally negligent.

But this sort of action must be seen as an extraordinary deviation from the norm, a last-ditch effort, and, above all, a temporary suspension of due process. In other words, it must be the sort of thing undertaken grimly in an hour of danger. An hour of danger, I say—even liberally understood as a “short period”—but not an eternity.

We will always be in danger. Let us see if we can sustain our basic institutions in the face of terrorism. Let our leaders be very careful about how they use fear, and the ceaseless threat of imminent disaster, to expand the scope and power of the government. These exhortations are expressed very well by the economist Bruce Caldwell in his introduction to F. A. Hayek’s The Road to Serfdom:

Times of war pose [a danger] for established civil societies—for it is during such times when hard-won civil liberties are most likely to be all-too-easily given up. Even more troubling, politicians instinctively recognize the seductive power of war. Times of national emergency permit the invocation of a common cause and a common purpose. War enables leaders to ask for sacrifices. It presents an enemy against which all segments of society may unite.

This is true of real war, but because of its ability to unify disparate groups, savvy politicians from all parties find it effective to invoke war metaphors in a host of contexts. The war on drugs, the war on poverty, and the war on terror are but three examples from recent times. What makes these examples even more worrisome than true wars is that none has a logical endpoint; each may be invoked forever.

And what’s the problem with that? Caldwell continues:

For a war to be fought effectively, the power and size of the state must grow. No matter what rhetoric they employ, politicians and the bureaucracies over which they preside love power, and power is never easily surrendered once the danger, if there ever was one, has passed. Though eternal vigilance is sage advice, surely “wartime” (or when politicans would try to convince us that it is such a time) is when those who value the preservation of individual libery must be most on guard.

The American Civil Liberties Union is on board with Caldwell. Pete Williams’ reporting continues:

The ACLU called Holder’s explanation “a defense of the government’s chillingly broad claimed authority to conduct targeted killings of civilians, including American citizens, far from any battlefield without judicial review or public scrutiny.”

“Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact,” said Hina Shamsi, director of the ACLU’s National Security Project.

“Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power,” she said.

This last point is crucial. It is precisely what is so important about Constitutional constraints on government power. While we may be very happy to give up our liberties and our Constitutional rights when a President of our own political persuasion is in office—someone we “trust” to be doing the “right” thing, protecting us from harm—we must ask ourselves how we would feel if that same power were handed to someone else, someone we didn’t trust so much.

Many Democrats and independents in the U.S. supported President Obama in his historic election bid. Many still support him, and are willing to forgive him his continuation of Bush-era policies in the name of safety. They trust him. Obama would only use his power for good, they think.

Perhaps so. But who is knocking at the door? With one important exception, the Republican candidates vying to replace Obama are in full-throated support of expansive government power when it comes to sending troops to war. Mitt Romney, Rick Santorum, and Newt Gingrich are firing up their bases by rattling sabers over the Iran nuclear program, for instance. Their palms are sweaty with anticipation: they want to grasp the reigns of power, so that they may “kill the terrorists” and flex their muscle in the Middle East. A lot of Democrats might start to miss their civil liberties when kindly President Obama is no longer in charge.

One Republican candidate takes a different stance. To close out this blog post, I will share some highlights from a speech to the U.S. Congress delivered before the war in Iraq, but after the U.S. invasion of Afghanistan. The speaker is Texas Representative Ron Paul. The full text of the speech can be accessed here.

The need to define our target is … crucial. Without it, the special interests and the ill-advised will clamor for all kinds of expansive militarism. Planning to expand and fight a never-ending war in 60 countries [is misguided]. The pervasive and indefinable enemy – “terrorism” – cannot be conquered with weapons and UN nation building.

It’s easy for elected officials in Washington to tell the American people that the government will do whatever it takes to defeat terrorism. Such assurances inevitably are followed by proposals either to restrict the constitutional liberties of the American people or to spend vast sums of money from the federal treasury.

The history of the 20th Century shows that the Congress violates our Constitution most often during times of crisis. Ironically, the Constitution itself was conceived in a time of great crisis. The founders intended its provision to place severe restrictions on the federal government, even in times of great distress. America must guard against current calls for government to sacrifice the Constitution in the name of law enforcement.

The threats to liberty seem endless. It seems we have forgotten to target the enemy. Instead we have inadvertently targeted the rights of American citizens.

I see good reason for American citizens to be concerned – not only about another terrorist attack, but for their own personal freedoms [and Constitutional rights].

Mr. Holder: the “hour” of danger will never pass. We should not concede to the President, then–to any President, not even to President Obama–the unilateral authority to assassinate American citizens if they can be painted as a threat. Power, once it is granted, has a tendency to stick. I don’t want a Rick Santorum or a Newt Gingrich so well equipped to kill my countrymen. Do you?


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14 Comment on this post

  1. Anthony Drinkwater

    Hello Brian,
    Rather boringly, I agree. The US government only has the right to kill other nations' citizens.

  2. I don't particularly disagree either, but I attended a conference a couple of years ago where John Gardner gave a talk about the Jean Charles de Menezes case. As I recall, part of his argument was that while it is, of course, a morally bad thing to be killed, it is morally worse when the killing is done by the agents of the state. I don't know that he's ever included this argument in any of his published work, so maybe he was just suggesting it for sake of discussion, but it's seems like it could be relevant here.

  3. Perhaps the point is that a State killing its own citizes is worse because in that case there is no goverment to protect them. If the US attacks Syrian citizens, the latter can expect their government to use its army and police forces to protect them as much as possible. But if the US attacks its own citizens, then there is no other instance of protection: they are completely defenseless.

    Somehow I feel Jean Charles' case even more frightening: not a secret assassination force did that, but the police, who works closer to the public. Understated was: "if the police can do that and go on unpunished, who will protect us and enforce our rights?".

    However, perhaps as Drinkwater, I think this point is actually the least important one. Why killing other nation's citizens isn't as discussion worthy in the US presidential campaign?

  4. Yes, I have no doubt the argument had something to do with the fact that the government is expected to protect you from such harms, but beyond that I don't know what Gardner had in mind. Even if it's not credible as an argument, it might offer some explanation for why killing citizens is treated as more important in the political debate.

  5. Holder is a sad imitation of Alphonsus J. Calhoun as his legal opinions inevitably reveal his ignorance of and contempt for the Law.What he is saying is that the Psychopath-In-Chief could legally order him,(Holder), killed, with impunity. While Holders' demise would be a blessing to the nation, such an order would be murderous, illegal, and worthy of capital punishment. Folks, we have a CONSTITUTION which limits the powers of government to those specifically therein enumerated. See Amendment N0.Ten, eg. There is no provision for presidential execution of anyone, under any circumstances. StanleyAnns' illegitimate baby is a murderer and should be dealt with as such.

  6. This post has a lot of claims which I think need to be examined more carefully. First, to say that the terrorists want us to suspend our civil liberties or to suspend our rule of law is a far stretch. Few terrorists (the ones in the media anyway) have ever made claims of the sort. In fact, Bin Laden, Awlaki, and Qutb have never made claims, at least publicly, which identify civil liberties as the things they hate. Rather, the focus is on two things: 1) Removing the U.S. presence which has caused chaos in the region and 2) attaining the love and admiration of God and one's community. With this reality in mind, it is difficult to assert that suspending civil liberties would be "a win for the terrorists."

    Continually, it is erroneous to claim that this sort of action is a deviation from the norm. The United States has suspended the rights of its own citizens time and time again, from WWI to the modern day. Japanese Americans, Russian Americans, Jewish Americans, Muslim Americans, and many others have been the repeated victims of this. Not to mention, the United States currently taxes its citizens who live abroad, though they are not allowed to vote in national elections. This is a dramatic violation of rights. Violations of citizens' rights have occurred a number of times, and the claim that citizenship confers any sort of special protection in a time of conflict is a difficult one to defend.

    The actually idea that this post is addressing is not one of whether or not an attack on a U.S. citizen abroad is legally justified, but rather whether or not most tactics employed in the war on terror, and the war itself, are justified. After all, if you agreed with the way we were conducting the war to begin with, then the assassination of Awlaki would likely have been acceptable to you. The reality is that the war on terror should not have begun in the first place. Ron Paul is correct when he highlights that the U.S. policy of "intervention" has put the country in its current situation. The spiral which occurs in a such a situation is inevitably one of government spending and suspension of civil liberties. Instead, the U.S. ought to withdraw from foreign engagements and focus on defense. This will make the country safer by not only having a more airtight defense structure which will not be vulnerable to incidents such as 9/11 but also by reducing the motivation for others to attack in the first place.

    1. The first thing a nation must do when it is engaged in war is to secure its borders. That is elementary, but sadly something the US government has completely overlooked. The fact that America has had wide open borders for years now proves my point. Anyone from anywhere in the world can enter the United States pretty much with impunity, yet no one seems to be overly concerned about that…..not the president, not the Congress, not even state governments. This is because the sinister arm of totalitarianism has hijacked this country and ignores the open border issue in order to promote its agenda. In a totalitarian state, one has no rights, so an ever expanding government assures complete servitude and subservience of its citizens.
      One thing most tyrants fail to consider though is that when the citizens have had enough……there is always more of the masses than there is of the government and its henchmen. That's why historically they all eventually collapse!
      We're very close to that form of government now. Prepare to be a slave folks because without any rights…..that's what you are!

  7. On Sept. 11 1971…
    Then Gov. Nelson Rockafeller, in a speech to the city and people of New York, stated: …"and
    in thirty years when these buildings are brought down by a terrorist act…because of what
    they stand for"…at the time, terrorists were not even part of the news 'til 1972 winter
    olympics when the Israeli olympic athletes were kidnapped and killed…how did he know
    of the future event that would start the martial law mandated of today. His words in that
    speech were the beginning of terror in the U.S.

  8. No time to read the whole thing, but seriously, "But terrorism will present a “danger” forever." this only applies the those who buy anything they are told/sold by the criminals from the district of criminals. Come on folks, this is not rocket science.

  9. I am a little taken aback by these comments. They cannot be serious.

    Steven, let me start by saying that I am fairly certain Nelson Rockefeller said nothing of the sort. And if he did, please point me to the proof. Let me continue by saying to both you and Mike that terrorism has been a part of the world's tapestry for literally as far back as we have historical records. You cannot point me to a time in history when terrorism, in some form or another, has not existed. It is different now than it has ever been, and it is more publicized because of 9/11, but these are realities of the global political landscape, and they do not stem from a change in the existence of terrorism itself.

    As far as this being rocket science, Mike, it's much more difficult than that. Rocket science has concrete answers in physics and mathematics, answers which can be discovered using empirical methods. Terrorism, its motivations, and how we are to respond to it are far more complicated issues. There are almost infinite variables to consider, and theories are nearly impossible to actually test for obvious reasons. Painting black and white pictures does not help anybody gain insights. Rather, it perpetuates the type of discourse which has fueled misunderstandings and poorly planned military actions for the past several decades.

    I admonish you to actually consider the multiple perspectives in the terrorism discourse and broaden your understandings of it. The dynamics which surround and lead to terrorism are very complicated and intricate. Painting such emotionally driven contrasts does not help us in analyzing it.

    1. The point is, I am not afraid…I am much more likely to be killed driving to town, but I still drive.

      “He who trades liberty for security, deserves neither and will lose both.” – Thomas Jefferson

      “Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.” – Benjamin Franklin, ed. L.W. Labaree, 1759

      "If you want total security, go to a prison. There you’re fed, clothed, given medical
      care and so on. The only thing lacking…is FREEDOM." – Dwight D. Eisenhower

  10. A good analysis. I think you’re right to call out uses of metaphor that attempt to shift a thing from what it is, especially where the authority sought will extend past the bounds of the event, as in restricting all future rights for the sake of an alleged hour of danger. As I was reading the phrase “Anyone willing to trust President Obama with the power to…” I was silently injecting “and all future Presidents”, and was happy again to see you call that out. So much of political rhetoric is about this. The mere idea that it’s for the sake of “safety” as if safety were binary is an issue. I often reframe this in my mind by asking “Are you offering to take us from 86% safe to 87% safe?” I mean, the situation isn’t totally unsafe before nor will it be totally safe after. So how much safety is promised by any of the intrusions on liberty we’re promised? It’s hard to quantify, but it suffices for discussion to ask a question like “Is loss of the 1st or 4th amendment worth a 1% or 2% improvement in personal safety?” Because that’s more like the real question. And it makes the trade look like a poor bargain.

    I also agree that Ron Paul’s rhetoric on wars, and in fact on many rights issues, is properly conservative. I’m not a conservative myself, but am Independent, and I draw good ideas from wherever they come. The tricky part about Ron Paul is that his basic message is “If elected, I’ll stay hands off.” That works for things that Government has done too much of, but it’s not so good for things Government has done too little of. Overall, I think it makes him a dangerous choice to actually consider electing, though I appreciate his voice in the discussion on certain matters, like the one you cite.

    An additional source of thought I might have cited, as I’m sure I’ve done on my blog, is the Powell Doctrine [see Wikipedia], which goes to the issue of whether there is an hour of danger or a permanent danger. Powell meant it for wars, but if you’re going to have a war on drugs or terror or whatever, asking those same questions yields interesting insights, particularly for questions 2 and 5: Do we have a clear attainable objective? Is there a plausible exit strategy to avoid endless entanglement?

    You might also want to read about the proposed Enemy Expatriation Act [see Wikipedia], which proposes a legal dodge to some of the issues you’ve discussed. Hopefully it wouldn’t pass but it’s always hard to say with these things. I wouldn’t have expected the Patriot Act to pass, but I guess the coolness of its name overcame the questionable nature of its content.

    And finally on related reading I’d add Naomi Klein’s The Shock Doctrine as still another essential perspective. For those not familiar with her position, it wil put the setting of Holder’s remarks, the University of Chicago, in an interesting light and will give a new sense of context to the form of his words. I highly recommend that book to those trying to understand modern conservative politics.

  11. Again, I’m somewhat late to the party. But I have written an Op-Ed piece on this subject that I hope will add something to the discussion here. Apologies for the length.

    Another Star Chamber?

    Some of you might remember the 1983 motion picture Star Chamber starring Michael Douglas and Hal Holbrook. The movie is about a secret cabal of judges—a Star Chamber—that metes out its own brand of justice against those it determines have wrongly been set free. All is fine until the judges set their assassins lose on two criminals who were actually innocent of the crimes they were charged with.

    The movie was based on a real English court that operated from the fourteenth to the seventeenth century which was housed in a room in Buckingham Palace called the “Star Chamber.” It was made up of judges who sought justice for the victims of those who were so powerful that ordinary courts could never convict them of their crimes. Court sessions were held in secret, with no indictments, no right of appeal, no juries, and no witnesses. As the U.S. Supreme Court has described it, “The Star Chamber has, for centuries, symbolized disregard of basic individual rights.” It still remains a term of art in the judicial system.

    It may be the case today that our government has established something very similar to the Star Chamber.

    In September 2011, a drone strike killed American Muslim cleric Anwar al-Awlaki, an operative of al-Qaida who was hiding in Yemen. He was accused of plotting attacks against the U.S. Of course, the fact that our government can designate and then assassinate American citizens living (or hiding) in other countries without the benefit of due process has caused something of an outrage by defenders of civil liberties.

    But in a speech at Northwestern University Law School in Chicago on March 5, 2012, Attorney General Eric Holder championed the practice, declaring that, “Due process and judicial process are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.” He followed this up with the incredulous statement, “The principle of humanity requires us to use weapons that will not inflict unnecessary suffering,” Well, I’m glad we are being humane about it.

    Defending the Joint Resolution, “Authorization for Use of Military Force” passed by Congress on September 18, 2001, General Holder asserts that, “The Constitution does not require the president to delay action until some theoretical end stage of planning, when the precise time, place, and manner of an attack become clear.” That authority is “not limited to the battlefields in Afghanistan,” Holder continues, adding that, “We are at war with a stateless enemy, prone to shifting operations from country to country.”

    Well, Mr. Holder, what if the neer-do-well Anwar al-Awlaki was hiding out in Canada? Would we send a fully armed drone up there to take him out? How about in Russia? Switzerland? OK, if a missile is too much, how about Seal Team 6? If not, then are we to further apply your “judicial process” only to selected countries?

    Moreover, General Holder’s position lets us conveniently bypass our extradition treaties with other countries. The problem is that most of them, like the more civilized Canada and virtually all of Europe, deny extradition back to the U.S. if the accused may be subject to the death penalty. But, hey, who needs extradition when you’ve got a guided missile?

    Most of the civilized world respects the rule of law. Consider Israel for example. The Massad, their equivalent of our CIA, has hunted down, captured and then returned many suspected Nazi war criminals back to Israel for a trial; thus giving them their day in court and honoring due process. Even Iraq, after its “liberation” by the U.S. military, er, Coalition Forces, gave the evil Saddam Hussein a proper trail. And these guys were not “planners.” They were, as G. W. Bush would say, really bad evil-doers.

    Of course, the U.S. mostly spins international criminal law like the Common Article 3 of the Genova Conventions to fit its own needs. And we has never recognized the International Criminal Court.

    Then there is the problem of getting bad information and killing the wrong people. Everybody knows that we legally execute some people in this country only to find out later they were innocent of their crimes. This, even after the legal system is strained to its limit in protecting due process. But there are no do-overs here.

    The war on drugs and the war on organized crime are carried out by law enforcement. But with all the hysteria and existential angst after 9/11, the war on terrorism has been elevated to a status deserving of military action. We have created a vast complex of military, intelligence, and security operations aimed at terrorism. In my opinion, through the Patriot Act, and other related anti-terrorist legislation, our Constitution has become another casualty of this war. Vengeance is slowly eroding the rule of law.

    But it’s the people at the top — the generals, the CIA director, the Secretaries of State and Defense and Homeland Security, and the president — who call the shots (pun intended). Hiding behind questionable interpretations of the law, they mete out their own brand of justice. They meet in secret, with no indictments, no right of appeal, no juries, and no witnesses. They are the new Star Chamber. And they can use unmanned, heavily armed drones to kill Americans.

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