ERB & Bacchys:

I have put forward the position that the president, as Commander in Chief of the Army and Navy has authority to order the killing of US citizens engaged in war against the US where our custodial prospects are zero.

The argument advanced by those who disagree comes in two parts. One is the constitutional guarantees argument, which states taht no matter what an American citizen does or where he is doing it, he must be accorded access to the judicial process, to include, I assume, lawyers, an indictment, voire dire, etc. & so forth. The second is the slippery slope.

My objection to the first argument is that the cricumstances we are dicussing prevent the application of such access. This leads to the completely unacceptable situation in which we can't kill someone who is trying to kill us. As Justice Jackson wrote in dissent in Terminiello v. City of Chicago, 337 U.S. 1 (1949)

There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.


This is the situation we have here. Everyone agrees that no right is absolute. We don't wait for Charles Whitman to run out of ammo and descend from the bell tower, so we can arrest him. We send a policeman up there to blow his head off. (Whitman was also fired upon by armed civilians.)

It should be noted that this killing should not have been a surprise. Al-Aulaqi's placement on the hit list was on a front page story in the New York Daily News. The United Nations designated him as a terrorist. He was wanted "dead or alive" by Yemeni authorities. His father filed suit to have his son's name removed from the hit list. This suit dismissed. The ACLU filed suit to represent him. The operation wasn't kept secret after the fact. The president came before the American and announced what he had done, and there is a lawsuit pending against him for doing it. This wasn't done without the knowledge of the American people.

I would suggest that this is not the stuff of imperial presidency, but rather practical war fighting in the era of terrorism. This ain't the War of 1812. The US hadzero custodial prospects, so there was no opportunity to apply the rights of citizenship. Al-Aulaqi was engaged in war like operations against this nation and others, and if he was a Yemeni or an Iranian or a Martian no one would have said word one when we sent a missile up his ass. It is inconceivable to me that any president - offered the opportunity to kill such a man in this environemnt - would decline just because he was a US citizen. It would, in my view, be insane to do so. The perfect example of a foolish consistency.

Which brings us to the slippery slope argument. The slippery slope is a logical fallacy. There is no reason to believe that any president would wish to extend this war authority into civil affairs. And, indeed, there are laws against it. The decision was, in fact, subject to judicial notice, and will be again in the future.

This operation was subject to the disinfectant of sunshine. Congress has only to write a law announcing that henceforth US citizen waging war against the United States are subject to arrest and detention, but as long they remain free, they will not be harmed.

I look forward to seeing such a bill introduced, but absent Dennis Kucinich, I doubt I'll be seeing it soon.