Glenn Greenwald writes: Two significant events happened on Thursday: (1) the Democratic-led Senate rejuvenated and expanded the War on Terror by, among other things, passing a law authorizing military detention on U.S. soil and expanding the formal scope of the War; and (2) Obama lawyers, for the first time, publicly justified the President’s asserted (and seized) power to target U.S. citizens for assassination without any transparency or due process. I wrote extensively about the first episode on Thursday, and now have a question for those supporting the assassination theories just offered by the President’s lawyers.
To pose that question, I’d like to harken back for a moment to the controversy over the Guantanamo detention system. Democrats universally purported to be appalled that the Bush administration was indefinitely imprisoning people without any charges or due process. Barack Obama, as a Senator from Illinois, denounced “the Bush Administration’s attempt to create a legal black hole at Guantanamo” — i.e., that people would be put in cages, possibly forever,with no charges. But Bush lawyers offered a theory for why due-process-free imprisonment was justifiable. The theory had these four fairly simple premises:
(1) Terrorism is not primarily a criminal offense. It is an act of war. Thus: We Are At War With The Terrorists.
(2) Those who try to harm the U.S. as part of this War are combatants and Terrorists — not criminals — and are thus entitled to no due process or any other rights to which accused criminals are entitled. It is the U.S. military (led by the Commander-in-Chief) — not courts — which decides who is and is not a combatant and Terrorist.
(3) Whether someone is a combatant or Terrorist is decided by only one thing: the President’s unilateral decree. Once the President decrees someone a combatant or Terrorist — including one of his own citizens — that person by definition becomes one, and he can then be treated as such without any further judicial process or Constitutional protection. Once that presidential accusatory decree issues, protections of the Constitution and law disappear. In sum, presidential accusations that someone is a Terrorist are the same as proof and a verdict of guilt.
(4) Unlike virtually every other war ever fought, the “battlefield” of this War is not found where opposing forces are shooting at each other, but is rather defined as: wherever an accused Terrorist is found anywhere in the world. Thus, the President’s battlefield powers — which are limitless: unilateral targeting for death, indefinite imprisonment without charges, spying on communications without any oversight – are not confined to any geographical location, but instead can be applied everywhere. Wherever an accused combatant or Terrorist physically exists — sleeping in a bed, riding in a car with his children, thousands of miles away from any actual shooting — is the “battlefield.”
Those were the once-controversial theoretical premises offered repeatedly by Bush lawyers and other defenders to justify the Guantanamo detention system. More generally, these theories were (and remain) the heart and soul of the neocon view of the War on Terror. Once you accept those four premises, there is no coherent way to oppose Guantanamo. So here is my question:
At this point, do Obama defenders reject any of these four premises? I mean this literally: I cannot count how many times I have heard exactly this same theory offered by Obama supporters justifying his assassination powers (the President is entitled to target citizens for death because we are at War, and once you take up arms against the U.S. (meaning: once the President accuses you of doing so) you have no due process rights). Indeed, there simply is no possible way to defend the assassination powers claimed by Obama without embracing each of these theories. And therefore, here is what Obama lawyers said on Thursday:
U.S. citizens are legitimate military targets when they take up arms with al-Qaida, top national security lawyers in the Obama administration said Thursday. The lawyers were asked at a national security conference about the CIA killing of Anwar al-Awlaki, a U.S. citizen and leading al-Qaida figure. . . .
The government lawyers, CIA counsel Stephen Preston and Pentagon counsel Jeh Johnson, did not directly address the al-Awlaki case. But they said U.S. citizens do not have immunity when they are at war with the United States.
Johnson said only the executive branch, not the courts, is equipped to make military battlefield targeting decisions about who qualifies as an enemy.
When Obama lawyers refer to “U.S. citizens who take up arms with al-Qaida,” what they mean is this: those whom the President accuses (in secret, with no due process or evidence presented) of having taken up arms with al-Qaida. When they refer to “battlefield targeting decisions,” they do not mean a place where there is active fighting, but rather: anywhere in the world an accused Terrorist is found (leaving no doubt about that, Johnson decreed that the limits of “battlefield v. non battlefield is a distinction that is growing stale“). In other words: the whole world is the battlefield, a claim Obama officials have long embraced, and someone is a Terrorist the minute the President declares him to be one: the President is the sole judge, the sole jury, and now even the sole executioner.
So my question to defenders of Obama’s assassination powers is this: which of those four core Bush/Cheney War on Terror premises do you reject, if any?