Should government powers include the right to assassinate citizens as the way to fight terror? No, says Brian Earp, and here’s why.
The U.S. government is legally justified in killing its own citizens overseas if they are involved in plotting terror attacks against America, Attorney General Eric Holder said Monday.
“In this hour of danger, we simply cannot afford to wait until deadly plans are carried out, and we will not,” he said in remarks prepared for a speech at Northwestern University’s law school in Chicago.
Pay attention to Mr. Holder’s choice of words here. This hour of danger? Excuse me: an “hour” is a bounded stretch of time – and not very long. But terrorism is a threat with no border – it has existed always, and will continue indefinitely. The “war on terror” cannot be won: you can kill a terrorist, sure, but you cannot eliminate a tactic. So let us not talk about an “hour.” This sort of speech is insidious. We all know that an hour takes sixty minutes and then it’s finished. But terrorism will present a “danger” forever.
So how should we respond? How does a country protect its citizens in the face of eternal danger? One thing it must not do is suspend the rule of law indefinitely, or undermine the basic liberties it was formed to defend. That’s a win for the terrorists—that’s what they want. If there is an imminent threat, if lives are at stake, if capture is impossible, and if killing a U.S. citizen without trial is the only way to prevent a bomb going off … then go in for the kill. A government who failed to do so would be fatally negligent.
But this sort of action must be seen as an extraordinary deviation from the norm, a last-ditch effort, and, above all, a temporary suspension of due process. In other words, it must be the sort of thing undertaken grimly in an hour of danger. An hour of danger, I say—even liberally understood as a “short period”—but not an eternity.
We will always be in danger. Let us see if we can sustain our basic institutions in the face of terrorism. Let our leaders be very careful about how they use fear, and the ceaseless threat of imminent disaster, to expand the scope and power of the government. These exhortations are expressed very well by the economist Bruce Caldwell in his introduction to F. A. Hayek’s The Road to Serfdom:
Times of war pose [a danger] for established civil societies—for it is during such times when hard-won civil liberties are most likely to be all-too-easily given up. Even more troubling, politicians instinctively recognize the seductive power of war. Times of national emergency permit the invocation of a common cause and a common purpose. War enables leaders to ask for sacrifices. It presents an enemy against which all segments of society may unite.
This is true of real war, but because of its ability to unify disparate groups, savvy politicians from all parties find it effective to invoke war metaphors in a host of contexts. The war on drugs, the war on poverty, and the war on terror are but three examples from recent times. What makes these examples even more worrisome than true wars is that none has a logical endpoint; each may be invoked forever.
And what’s the problem with that? Caldwell continues:
For a war to be fought effectively, the power and size of the state must grow. No matter what rhetoric they employ, politicians and the bureaucracies over which they preside love power, and power is never easily surrendered once the danger, if there ever was one, has passed. Though eternal vigilance is sage advice, surely “wartime” (or when politicans would try to convince us that it is such a time) is when those who value the preservation of individual libery must be most on guard.
The American Civil Liberties Union is on board with Caldwell. Pete Williams’ reporting continues:
The ACLU called Holder’s explanation “a defense of the government’s chillingly broad claimed authority to conduct targeted killings of civilians, including American citizens, far from any battlefield without judicial review or public scrutiny.”
“Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact,” said Hina Shamsi, director of the ACLU’s National Security Project.
“Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power,” she said.
This last point is crucial. It is precisely what is so important about Constitutional constraints on government power. While we may be very happy to give up our liberties and our Constitutional rights when a President of our own political persuasion is in office—someone we “trust” to be doing the “right” thing, protecting us from harm—we must ask ourselves how we would feel if that same power were handed to someone else, someone we didn’t trust so much.
Many Democrats and independents in the U.S. supported President Obama in his historic election bid. Many still support him, and are willing to forgive him his continuation of Bush-era policies in the name of safety. They trust him. Obama would only use his power for good, they think.
Perhaps so. But who is knocking at the door? With one important exception, the Republican candidates vying to replace Obama are in full-throated support of expansive government power when it comes to sending troops to war. Mitt Romney, Rick Santorum, and Newt Gingrich are firing up their bases by rattling sabers over the Iran nuclear program, for instance. Their palms are sweaty with anticipation: they want to grasp the reigns of power, so that they may “kill the terrorists” and flex their muscle in the Middle East. A lot of Democrats might start to miss their civil liberties when kindly President Obama is no longer in charge.
One Republican candidate is a man apart. As a defender of civil liberties and a champion of peace, there is no comparison. To close out this blog post, I will share some highlights from a speech to the U.S. Congress delivered before the war in Iraq, but after the U.S. invasion of Afghanistan. The speaker is Texas Representative Ron Paul. The full text of the speech can be accessed here.
The need to define our target is … crucial. Without it, the special interests and the ill-advised will clamor for all kinds of expansive militarism. Planning to expand and fight a never-ending war in 60 countries [is misguided]. The pervasive and indefinable enemy – “terrorism” – cannot be conquered with weapons and UN nation building.
It’s easy for elected officials in Washington to tell the American people that the government will do whatever it takes to defeat terrorism. Such assurances inevitably are followed by proposals either to restrict the constitutional liberties of the American people or to spend vast sums of money from the federal treasury.
The history of the 20th Century shows that the Congress violates our Constitution most often during times of crisis. Ironically, the Constitution itself was conceived in a time of great crisis. The founders intended its provision to place severe restrictions on the federal government, even in times of great distress. America must guard against current calls for government to sacrifice the Constitution in the name of law enforcement.
The threats to liberty seem endless. It seems we have forgotten to target the enemy. Instead we have inadvertently targeted the rights of American citizens.
I see good reason for American citizens to be concerned – not only about another terrorist attack, but for their own personal freedoms [and Constitutional rights].
Mr. Holder: the “hour” of danger will never pass. We should not concede to the President, then–to any President, not even to President Obama–the unilateral authority to assassinate American citizens if they can be painted as a threat. Power, once it is granted, has a tendency to stick. I don’t want a Rick Santorum or a Newt Gingrich so well equipped to kill my countrymen. Do you?
photo by Elvert Barnes / flickr
Originally published on Brian Earp’s Practical Ethics column at Oxford University