The NY Times editors thump the Obama/Holder presentation on targeted assassinations, even invoking the dreaded 'Bad as Bush' comparison:
The Power to Kill
President Obama, who came to office promising transparency and adherence to the rule of law, has become the first president to claim the legal authority to order an American citizen killed without judicial involvement, real oversight or public accountability.
That, regrettably, was the most lasting impression from a major address on national security delivered last week by Attorney General Eric Holder Jr.
There were parts of the speech worth celebrating — starting with Mr. Holder’s powerful discussion of why trying most terrorists in civilian courts is best for punishing them and safeguarding America. But we are deeply concerned about his rejection of oversight and accountability when it comes to killing American citizens who are suspected of plotting terrorist acts.
They can't quite buy what Holder was selling:
[The Administration] has even refused to acknowledge the existence of a Justice Department memo providing legal justification for killing American citizens, even though that memo has been reported by The Times and others. It is beyond credibility that Mr. Obama ordered the Awlaki killing without getting an opinion from the department’s Office of Legal Counsel. Even President George W. Bush took the trouble to have lawyers in that office cook up a memo justifying torture.
The administration intended Mr. Holder’s speech to address the criticism and provide a legal argument for the policy, but it was deeply inadequate in important ways.
All Mr. Holder did say was that the president could order such a killing without any judicial review and that any such operation would have “robust” Congressional oversight because the administration would brief Congressional leaders. He also said the administration provided Congress with the legal underpinnings for such killings.
In the Awlaki case, we do not know whether that notification was done in advance or after the fact, if it was done at all. We do know the administration has not given Congress the legal memo with the underlying justification for killing American citizens, because Senator Patrick Leahy, chairman of the Judiciary Committee, was asking Mr. Holder for it just the other day.
Perhaps most disturbing, Mr. Holder utterly rejected any judicial supervision of a targeted killing.
We have said that a decision to kill an American citizen should have judicial review, perhaps by a special court like the Foreign Intelligence Surveillance Court, which authorizes eavesdropping on Americans’ communications.
Well, far be it from me to defend Team Obama, but those FISA courts did not simply fall out of the sky and land near the Washington Mall. They were created by an act of Congress and signed by a President willing to limit the power of the Executive Branch (that would be Mr. Peanut, natch.)
I suppose it's possible that Obama could simply volunteer to submit death warrants to the FISA courts, although I wonder whether they would accept jurisdiction without a legal foundation. The right way would be for Congress to amend the FISA Act and collect Obama's signature. And if the Times editors were clever they would vex Boehner and Reid with this very issue; I'm curious to see where the two sides would come out, and the threat of an Obama veto is not a bug, its a feature.
The Times' Big Finish:
The administration should seek a court’s approval before killing an American citizen, except in the sort of “hot pursuit” that justifies the police shooting of an ordinary suspect. There should be consequences in the event of errors — which are, tragically, made, and are the great risk. And the administration should publish the Office of Legal Counsel memo. We cannot image why Mr. Obama would want to follow the horrible example set by Mr. Bush in withholding such vital information from the public.
I need legal help - under what authority could a judge sign such a warrant?