James Joyner sums up what’s wrong with the Justice Department’s memo on extrajudicial assassination:
A secret Justice Department memo detailing in great length when the president has the authority to unilaterally order American citizens murdered without so much as a criminal charge has been released.
Everyone outraged by the memo is right to be outraged, but in some important respects the memo is little more than a summary of arguments that administration officials and supporters have been making in defense of this practice for years. I discussed some of these in one of my previous posts on the subject, which I’ll quote here:
There have been two distinct, related arguments going on concerning the administration’s claim to have the authority to assassinate U.S. citizens. The first, more important argument is over the administration’s refusal to allow review or accountability for the power being claimed. The problem here is obviously that the administration is claiming the authority to order the death of a citizen on the basis of evidence that the public cannot see as part of a process that allows for no legal remedy if this power is abused. If someone tries to sue, the government will shut down the lawsuit by invoking secrecy and national security. This is the very definition of unaccountable, lawless government. Defending the particular instance of targeting al-Awlaki for assassination doesn’t even address the main question, which is the administration’s effective claim to be beyond the law.
If this last claim seems excessive, consider the fact that the memo’s authors make a point of insisting that extrajudicial assassinations don’t violate the ban on assassinations. Assassination has been explicitly prohibited, but it will be allowed in practice because it now falls under an incredibly broad definition of “national self-defense.” In this way, the limits on the government’s powers created by existing law can be rendered irrelevant simply by asserting that they don’t apply.
Joyner explains why vesting this much secret power in so few hands is absolutely unacceptable:
Even so, American citizens should nonetheless be wary of granting the president the power to single out citizens for killing based simply on his own judgment. Aside from being plainly unconstitutional, it’s simply too much trust to place in a single individual. At the very least, the rules ought to be spelled out in legislation that has passed both Houses of Congress and survived judicial scrutiny for constitutionality rather than made internally.
Further, in addition to checks and balances, there has to be more transparency. The notion that the government can compile a list of citizens for killing, not tell anyone who’s on it or how they got there, is simply un–American.