Assassination Power & Outlawry

I hear some people talking past each other on Obama’s self-declared right to assemble a Kill List of Americans and order their deaths, sans any kind of external check or procedural safeguards.

Charles Krauthammer says that anyone who has taken arms against America has forfeited his right to citizenship.

I agree — but agreeing that the power to declare such a person as forfeit his citizenship is a government power is very much not the same as saying that such power resides within a single person, the President, in his sole discretion.

Agreeing that such a power resides somewhere in the federal government is not the same as agreeing it rests within a single fallible man to decide whom to kill and whom to spare.

 Especially not this hyperpartisan, demagogic mediocrity.

Yes, I agree, Alwaki deserved to die.  I agree that a government should have within it somewhere the power to declare that someone declaring war against it should be killed, just as any foreign combatant can.

But an American citizen is a special case, because all citizens do in fact have rights guaranteed by the Constitution, which can only be taken from them… via a legal determination that satisfies the demand for due process.

 Obama, sitting around compiling his one-man Death Pool isn’t such a process.  And I’m glad to know our more leftist/authoritarian/Strong Man on a White Horse-craving citizens think it’s just awesome to give a president the sole discretion over life and death of a citizen, but personally, I prefer more of the system that the Sons of the Enlightenment gifted us with.

And such a system is easily imagined.  Essentially it’s a declaration of war on a single person, or group of men.  We wouldn’t call it that — we don’t call actual declarations of war declarations of war anymore — but it would work in similar way.  The Constitution, as Ron Paul always reminds us, does give Congress the power to issue letters of Marque and Reprisal.

And there’s ample historic precedent for the model — the word “outlaw” is so common, and so obvious in meaning, that many (including myself, until recently) overlook that it once had a more legally-consequential meaning.  It didn’t just mean ruffian or bandit; it meant a person declared by a sovereign to be “outside the law,” and hence no longer deserving of the typical considerations you’d afford a citizen-criminal.

In historical legal systems, an outlaw is declared as outside the protection of the law. In pre-modern societies, this takes the burden of active prosecution of a criminal from the authorities. Instead, the criminal is withdrawn all legal protection, so that anyone is legally empowered to persecute or kill them. Outlawry was thus one of the harshest penalties in the legal system.

 

It sounds barbaric, of course, but then, killing people is barbaric.  There’s only so much civilizing you can do to the process of killing enemies (and we’ve done almost all of it already).

And what is more barbaric than killing people is establishing some kind of Chieftain-Warking who makes these decisions in consultation only with his most amenable bootlickers and toadies.

Expose the process to the sunlight; have the case presented and challenged; take a vote. Isn’t that what we’re supposed to do? Isn’t that what non- barbarians do?

This would also address another concern: That the individual targeted for assassination might not even know he’s been so designated, and have no chance to respond.  Put his name in for consideration for an Authorization for Use of Lethal Force; let him submit documents in his defense if he likes.

 

Objection: A commenter named Thevon writes below:

I don’t even think you need to go that far to at least give the appearance of deference to a US citizen. Send the SEALS after them, if they resist arrest, well then, I guess they were a bad guy. But at least we gave one of US a chance to surrender instead of killing him by pressing a button.

I don’t buy that at all. Any SEAL on a mission is a SEAL who can be killed. I don’t want to risk those guys. I don’t really care if these guys have “an opportunity to surrender.” We’re not playing paddycake, and they knew what they were signing up for. (The traitor-terrorists, I mean.)

My conscience doesn’t demand I put good men’s lives at risk to end a bad one’s.

But I would like a process for making such decisions that involves more than Our National VolkVater picking and choosing depending on his mood.