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Thursday, February 16, 2012

All Hail The Holy Roman Emperor - Executive Power and Absolute Power

This is a tough article for me.  I like what President Obama has done very much and think he has served us well as President.  It also seems that others have been overly critical of his Presidency, including attacking him over things which he inherited from past administrations.
However, I have a great deal of trouble with the Administration's position on a lawsuit filed by the ACLU and the Center for Constitutional Rights, regarding U.S. citizen Anwar Awlaki in his efforts to obtain a court order barring the U.S. Government from assassinating him without due process. 
In a nut-shell, the ACLU and CCR filed a lawsuit on behalf of Anwar Awlaki, with Awlaki's father as the named plaintiff, to prevent the Obama administration from proceeding with Awlaki's due-process-free assassination.  According to the suit, Awlaki is unable to file the lawsuit on his own because the U.S. government's threats to kill him, as well as its prior unsuccessful attempts, cause him to be in hiding and thus make it infeasible for him to assert his legal rights directly.

This is a very difficult case and involves a very undesirable accused terrorist (assuming all the accusations against him are true).
I mean, who wants to defend the rights of a terrorist who has publicly stated that he wishes to kill millions of Americans?  Shouldn't this be an easy case and we could all just say good riddens?

The problem is that it raises some very difficult Constitutional issues, including the question of whether the US Government should be able to execute one of its own citizens without due process. 

What is alleged in the suit is that the Government is violating Awlaki's "Fifth Amendment Right Not to be Deprived of Life Without Due Process."  The Complaint also alleges that using lethal force against a U.S. citizen in these circumstances violates the Fourth Amendment's guarantee against unreasonable searches and seizure, and also violates the Alien Tort Statute, which bars "extrajudicial killings." 

As I said this is very heavy stuff, and is the very foundation of our personal liberties and freedoms.  It is the Administration's response which has given me so much pause.
According to The Washington Post, the Administration filed a brief asking the court to dismiss the lawsuit without hearing the merits of the claims. That's not surprising: both the Bush and Obama administrations have repeatedly insisted that their secret conduct is legal but nonetheless urge courts not to even rule on its legality. But what's most notable here is that one of the arguments the Obama DOJ raises to demand dismissal of this lawsuit is "state secrets": in other words, not only does the President have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are "state secrets," and thus no court may adjudicate their legality.

I think we call all appreciate the notion that the Government must have certain state secrets which should not be divulged.  But what is surprising is that the are not asking the Court to not disclose those matters which are "state secret" but to not review the entire case as a state secret.  That gives me great pause.

If the President has the power to order American citizens killed without due process, and to do so in complete secrecy without the review by any court of his decision, then what doesn't he have the power to do?  Does he have absolute "executive powers"? 

Some are insisting that the President not only has the right to order American citizens killed without due process, but to do so in total secrecy, on the ground that Awlaki is a Terrorist and Traitor.  However, Article III, Section 3 of the Constitution provides that "No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."  Treason is a crime that the Constitution specifically requires be proven with due process in court, not by unilateral presidential decree.

So what is the reach of Executive Power?  To answer that we must look to the unique American concept of Separation of Powers.

According to Wikipedia:

Separation of powers 
is the political doctrine according to which the legislative, executive, and judicial branches of government are kept distinct in order to prevent abuse of power. This U.S. form of separation of powers is associated with a system of checks and balances.
Congress has the sole power to legislate for the United States.

Judicial power — the power to decide cases and controversies — is vested in the Supreme Court and inferior courts established by Congress.

Executive power is vested, with exceptions and qualifications, in the president - the president becomes the Commander in Chief of the Army and Navy, Militia of several states when called into service, has power to make treaties and appointments to office -- "...with the Advice and Consent of the Senate"-- receive Ambassadors and Public Ministers, and "...take care that the laws be faithfully executed"

The Constitution does not explicitly indicate the pre-eminence of any particular branch of government and, in general, each branch is seen as a check and balance on the other branches.
The idea of unfettered Executive Powers tends to run con tray to the notion of co-equal branches.  It doesn't take much to realize that a President who can do whatever he chooses under the notion of Executive Power is more an Emperor than apart of a co-equal government.
Most notably Nixon declared he could not break the law as he was President.  Richard Nixon—whose presidency is sometimes described as "Imperial" - used national security as a basis for his expansion of power. He asserted, for example, that "the inherent power of the President to safeguard the security of the nation" authorized him to order a wiretap without a judge's warrant. Nixon also asserted that "executive privilege" shielded him from all legislative oversight.

George Washington was offered the role of "King."  He rightfully turned it down.  Now is the time to stop the intrusion of the legislative and executive branches into our freedoms least we become mere serfs.

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