Executive Orders of the Secretive Kind

The rules of cyberwarfare, including the acceptable lethal use of drones, are being worked out in secret amongst President Obama and a very close group in the executive branch. These rules are to be the marching orders for several agencies that report to the president, yet they are intended to remain secret in the name of national security.

Most executive orders, even the controversial ones, are made public. The public nature of executive orders helps to maintain the balance of powers by giving Congress the opportunity to limit them through legislation and the courts the opportunity to throw the unconstitutional ones out. These days, they are even posted on the official White House site to let us know what our president is up to.

But, what about that other kind of executive order – the secretive kind that is not posted on the web site or even released to Congress. Secret executive orders cannot be checked by legal authority, limited by Congress or overturned by the courts until they are known – until they are carried out and their consequences become tangible. These are the kind of executive orders currently in the making.

There are some hints of what these orders will contain in the leaked Department of Justice white paper obtained by NBC news. The white paper examines the legal framework under which the US government can kill its own citizens without due process. At the beginning of the paper, it appears to concern Al-Qa’ida connected individuals who place an imminent threat on Americans, but upon further reading, the meanings of Al-Qa’ida connected and imminent threat become extremely loose and manipulable. By the end of the paper, it’s apparent that the burden of proof of the citizen’s guilt is exceptionally light and non-specific.

For example, the paper states that one of the conditions for targeting a US citizen is that an “informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the United States.” Nowhere is it explained what sort of proof or oversight process the high-level official must adhere to. The phrase Al-Qa’ida connected becomes watered down to mean a leadership person who is connected to a group that is connected to a group suspected of terrorist notions. The paper states that such a person is assumed to be guilty of actively planning an attack on the United States and claims that that assumption is evidence enough. The point is re-iterated with the explanation that an imminent threat of violent attack does not require clear evidence that any such attack will take place in the near future or ever. So, an imminent threat can simply be an assumption based on connections.

Secrecy concerning military operations certainly has precedence and may even be strategically necessary, but apparently I am not the only one who is left feeling less safe and secure by our president claiming new power to kill US citizens. Senator Ron Wyden(D-Or) and ten other senators wrote the president yesterday:

“….if individual Americans choose to take up arms against the United States, there will clearly be some circumstances in which the President has the authority to use lethal force against those Americans, just as President Lincoln had the authority to use force against the Confederate Army during the Civil War. At the same time, it is vitally important for Congress and the American public to have a full understanding of how the executive branch interprets this authority, so that Congress and the public can decide whether the President’s power to deliberately kill American citizens is subject to appropriate limitations and safeguards.  Every American has the right to know when their government believes that it is allowed to kill them.

Yes. That.

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5 Responses to Executive Orders of the Secretive Kind

  1. dukeshoward says:

    Hearing about the drone memo leaves a lot of people concerned. This cries out for some congressional oversight of the sort that has been hard to come by for a long time. Presidents have and want wide powers in the area of foreign policy/national security. It’s hard to get Richard Nixon, Gerald Ford, Ronald Reagan both Bushes to agree with Jimmy Carter, Bill Clinton and Barack Obama on a lot of stuff. However, one thing they all agree on is the presidential prerogative when it comes to the use of power on issues of national security. Clinton, Bush and Obama have all engaged in military action without a formal declaration of war and Bush and Obama have interpreted law to allow enhanced interrogation and the killing of American citizens without due process. Now, there are some times when killing a US citizen without due process is necessary. Al Awaki was over in Yemen recruiting and training people to attack Americans in this country and overseas. He was as much an enemy as a guy who takes up arms and shoots at US soldiers. However, the details of the expansion of use of lethal force against American citizens requires further discussion.

  2. DebbS says:

    I have read that all presidents since 1973 believe that the War Powers Resolution of that year is unconstitutional. The legislation is valid – it has not been overturned, yet our presidents have chosen to ignore it mostly in principle but also in action when it comes to that. Obama, I believe, overstepped his powers by killing Americans without due process – while al-Awaki may (or may not) have been an imminent threat, his son killed in a separate attack was not clearly a threat. Not enough has been released about the circumstances of the latter attack for us to know, but he was described as a 20+ year old terrorist in the earlier news releases. It was later discovered that he was only 16 and hadn’t seen his father for several years. Was the son targeted or was his death collateral damage? The contents of the white paper imply that Obama is codifying the executive ability to kill American citizens in such a way as to leave plenty of wiggle room for this sort of drone attack and what other attacks on US citizens may follow while unburdening the president from real proof of the necessity of such attacks.

  3. joelisgreen says:

    I’m enjoying learning more about the process of executive orders from your blog. I’m struggling to understand why any US President would want or need to kill US citizens. There seems to be a lot of fear mongering going on from people who think that President Obama is destroying the USA. I do not share this fear of our president or our government in general. In my lifetime I have witnessed the expansion of freedoms, not the opposite. I do not claim to know the details of this particular story, I would rather learn what led to the need for these orders rather than speculation of how they could be abused. Just my two cents worth.

    • DebbS says:

      I think Obama is a continuation of what went before him. I’m not sure that if the other candidate had won the election, things would be materially different. It may seem that I’m specifically targeting Obama, but that’s because I’ve been dealing with current issues and he’s the current president. In the future, I will do a historical post on the expansion of war powers beginning with Wilson. There are several points in time where these powers were used, abused, and greatly expanded – one those being the Bush years.

      Though what led to them is important, I think the speculation is also important, given that these powers don’t seem to go away once they’ve been allowed. The framers of our constitution, through their own historical knowledge and past experience, speculated how powers might be used in the future. This is why the balance of power was so essential in the constitution – it’s really what it’s about.

  4. RIVER TALK says:

    First they came for the Socialists, and I did not speak out–
    Because I was not a Socialist.
    Then they came for the Trade Unionists, and I did not speak out–
    Because I was not a Trade Unionist.
    Then they came for the Jews, and I did not speak out–
    Because I was not a Jew.
    Then they came for me–and there was no one left to speak for me.
    ~Martin Niemöller

    Imagine being the President. National security brings you a name and recommends an executive order to kill. The name belongs to an Al Qaeda or Shabab militia facilitator. But, what is the definition of a “facilitator?” What is considered an “imminent” threat? Go to the airport, remove your shoes and walk through a full body scan – we know the threat is already here. We know the threat also comes from U.S. citizens. I wonder if the war on terrorism can be won, one dead citizen at a time.

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