A defense of executive killings

I have been very harsh in my condemnations of the Obama administration’s claim to have the right to murder people just on his say so, even US citizens, as was the case with Anwar al Awlaki, his son and nephew, and who knows how many others.

Reader Joseph draws my attention to this article by Jack Goldsmith, who is “a Harvard Law professor and a member of the Hoover Task Force on National Security and Law. He served in the Bush administration as assistant attorney general in charge of the Office of Legal Counsel.” Goldsmith was one of the more reasonable people in the Bush administration, not one of the crazies, so his words should be taken seriously. He says that “Awlaki’s killing and others like it have solid legal support and are embedded in an unprecedentedly robust system of legal and political accountability that includes courts but also includes other institutions and actors as well.”

His case seems to depend on the right of the president to kill enemy ‘enemy soldiers’ and that the president was given the right by Congress to use all necessary force against those responsible for 9/11. He also claims that the decisions are made after careful thought by various agencies within the government.

I do not find this argument convincing since it is not clear that Awlaki meets the criterion of being an enemy soldier, no evidence was provided that he was behind the events of 9/11, that the kinds of speech he was engaged in have been previously ruled to be protected, and all those items are likely irrelevant anyway since Congress does not have the right to overrule the constitution. Goldsmith’s argument seems to be a typical insider ‘trust us, we know what we are doing’ one. The point is that we should not trust them on such vital issues as life and death and they have a duty to be as transparent as possible.

But I think it is worthwhile to read his arguments. I have forwarded it to Glenn Greenwald since he is in a better position to respond to the legal and constitutional issues than I am.


  1. F says

    I think that Congress granting those rights was illegal in the first place.

    Nevertheless, whether the option itself is legal or not, the exercise thereof in any particular instance isn’t necessarily legal, and most often not the right, good, or beneficial thing to do.

    Compare this to the government arguments back in the day prior to, during, and after Desert Sham the First, where we couldn’t just assassinate Sadam Hussein because “we don’t do that” (which is a lie of the first order anyway). The only difference now is the easy availability of drone aircraft, possibly coupled with the fact that the US personally experienced a horrific (successful) terrorist attack on US soil for once.

    See yet another example of how the terrorists are continually successful from beyond the grave:

  2. Tim says

    Mr. Goldsmith’s article is one of the most frightening writings I have read in a long time. Very scary. I hope Glenn Greenwald takes up the article. I’ll be very curious to see what he writes.

  3. jamessweet says

    My initial gut reaction is that it reminds me of the “illegal combatant”/”enemy combatant” bait-and-switch that the Bush administration pulled regarding indefinite detention at Gitmo: As I understood the argument initially, if you were a foreigner fighting against the US army and were not yourself operating as part of a legitimate army fighting a legal war, then this made you an “illegal” combatant, and thus the Geneva Convention did not apply. As morally corrupt as such an argument was, there was a certain logic behind it, a certain pretense that, while ignoring the spirit of the law, the letter of the law was maybe still being respected. But then after a while I started hearing “enemy combatant” instead of “illegal combatant”. This is an important distinction if you are trying to argue that you can ignore international law!

    And anyway, this reminds me a bit of that. An argument — a rather shaky one to begin with — is presented justifying apparent exceptions to international law for a specific group of people. And then, without anyone noticing, there is a shift to saying that said international law doesn’t apply to anyone.

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