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An Oracle of Tyranny

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Charles Krauthammer’s defense in the Washington Post (Feb. 15, 2013) of President Obama’s limitless power to kill any living thing on the planet in the name of opposing terrorism may carry some charms as a catechism. But — to paraphrase an aspersion cast on the Charge of the Light Brigade — it is not law.

Krauthammer rhetorically asks, “By what right does the president order the killing by drone of enemies abroad?” He answers, “imminent threat under the doctrine of self-defense.”

But Krauthammer is unable to cite any provision in the Constitution or laws of the United States that crowns the president with the authority to decide unilaterally who is an “enemy” to be exterminated. Proffering no definition of that term, Krauthammer champions authority in the president to designate any person he wishes as an “enemy” with no review by Congress, the judiciary, or the American people. The neocon oracle is unalarmed that Obama brandished that godlike power to assassinate a U.S. citizen, the 16-year old son of Anwar Al-Awlaki, with a Predator drone in Yemen while the boy was eating dinner.

Contrary to Krauthammer, President Obama regularly targets for killing persons who are neither imminent threats to American lives or limbs nor dangers to national existence.  The legal definition of “imminent” in Black’s Law Dictionary is “near at hand.”  Mr. Krauthammer asserts that a “freelance jihadist cell in Yemen … actively plotting an attack” creates an imminent threat. But he is unable to adduce a crumb of evidence that Predator drone killings either have been or are confined to that circumscribed category of alleged terrorists.

Krauthammer also asks rhetorically, “What criteria justify assassination? He answers, “affiliation with al-Qaeda under the laws of war.” But Krauthammer cannot cite any law of war to substantiate his assertion. He is clueless as to the definition of “affiliation.” Indeed, he is unable to suggest even one evidentiary earmark of the term. In other words, in the manner of Humpty Dumpty, affiliation means whatever the president wants it to mean.

Krauthammer trumpets that “we are in a mutual state of war [with al-Qaeda],” a condition of belligerency which was effectively declared by Congress in enacting the Authorization to Use Military Force (AUMF). He maintains that the AUMF authorized force against every member of al-Qaeda and those who harbor or abet them. But the plain language of the statute reaches only actual participants in the 9/11 abominations, or persons who harbored those who were.  The vast majority of persons within the scope of the AUMF have been either killed or captured.

As regards U.S. citizen al-Awlaki, Krauthammer maintains that he had taken up arms against the United States and was thus fair game for presidential assassination. But Krauthammer again is unable to cite any provision of the Constitution to support a presidential power to assassinate. The AUMF did not reach al-Awlaki. He was neither implicated in the 9/11 mass murders nor charged with treason or any other crime.

Krauthammer maintains that in war the president, as commander in chief, commands unchecked power to kill anyone he chooses, including al-Qaeda detainees held at Guantanamo Bay, who might otherwise petition for writs of habeas corpus. The Fifth Amendment’s prohibition on the taking of life without due process is denied even a cameo appearance in Krauthammer’s counter-constitutional gospel. Ditto for Justice Sandra Day O’Connor’s teaching in Hamdi v. Rumsfeld (2004): “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”

Krauthammer’s theory of presidential war powers would have authorized President Franklin Roosevelt in World War II to emulate Adolph Hitler by sending 120,000 Japanese Americans to gas chambers in lieu of concentration camps. Indeed, his theory would have justified the Holocaust, as Hitler insisted Jews were enemies of the Third Reich.

Krauthammer voices incredulity that any earthly inhabitant would believe the war on terror is law enforcement. Has he forgotten that John Walker Lindh, “American Taliban,” was apprehended and prosecuted as a criminal in civilian court? The 20th hijacker of 9/11, Zacarias Moussaoui, was criminally prosecuted for 3,000 counts of murder. José Padilla, suspected of intending to explode a “radiation” bomb, was prosecuted and convicted of conspiracy and material assistance. Shoe bomber Richard Reid was prosecuted as a criminal. Indeed, the hundreds of terrorists prosecuted as criminals since 9/11 dwarfs the handful who have been prosecuted as warriors before military commissions.

Krauthammer inflates al-Qaeda’s threat beyond recognition by likening the terrorist organization to the millions of highly trained soldiers of Hitler and Hirohito during World War II, combined with their vast industrial complexes and advanced weaponry like V-1 and V-2 rockets and submarines. U.S. counterterrorism experts place the number of al-Qaeda in Afghanistan at approximately 50.

Krauthammer sneers at Thomas Paine’s sermonizing in Common Sense: “In America THE LAW IS KING.” But I am convinced he is an honorable man. Aren’t you also convinced Krauthammer would have fought for American liberty against King George III’s tyranny in the Revolutionary War?

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    Bruce Fein commands impressive experience and influence in the corridors of both national and international power. He graduated from Harvard Law School with honors in 1972. After a coveted federal judicial clerkship, he joined the U.S. Department of Justice where he served as assistant director of the Office of Legal Policy, legal adviser to the assistant attorney general for antitrust, and the associate deputy attorney general. Mr. Fein then was appointed general counsel of the Federal Communications Commission, followed by an appointment as research director for the Joint Congressional Committee on Covert Arms Sales to Iran. He recently served on the American Bar Association's Task Force on Presidential signing statements.