That’s exactly what makes this unconstitutional. The executive is explicitly denied the powers of the judiciary in the Constitution.
However, the Constitution is just a piece of paper, unless there is the will to enforce it, it doesn’t matter. In this case, I think Obama will be able to do this with minimal public outrage. But then I could be wrong.
I have to make some edits here, because I did some re-reading and I definitely got some things wrong. The two clauses I quoted above are explicit limits on the Legislative branch, but they do not appear to be explicit limits on the Executive. In other words, I’m not sure that the President cannot issue a bill of attainder (basically a ruling that declares a man guilty without trial.) However, keeping in mind the Framer’s intent to separate the powers of all three branches one would think that neither the legislature nor the executive could legally claim the power of the judiciary to declare someone guilty or not guilty, that power is supposed to be reserved to the courts.
If all else fails, we can always cite the 5th amendment “Nor deprived of life, liberty or property, without due process of law”, the 6th “right to a speedy and public trial” and of course the due process and equal protection clauses in the 14th amendment.
But I’m no legal scholar, maybe I’m missing something. I would be interested to see the Obama Administration’s legal argument, perhaps there is a way for them to legally do this.
Either way, I apologize for the mistakes and I hope I got it right this time.
We’re always talking about different things, bloom.
I believe in a pretty basic concept - everyone should be held to the same standard. If Obama can tell some folks to kill a guy without proving it in a court of law that he’s done something wrong, we should all be allowed to do the same.
Governments are paternal in nature - they are examples for their citizens. Right now I’m seeing that it’s okay to murder somebody.
McVeigh used a similar sentiment in his defense, based on the dissent of one Justice Brandeis: ‘Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example.’
I know, and he’s got a point. I would argue of course that McVeigh was unjustified, but I would also argue that what the government does is unjustified as well.
It’s an either or proposition. Either it’s wrong for everyone or it’s acceptable for everyone.
ClaytonB wrote the following post at Thu, Apr 29 2010 8:17 AM:
@OP: It’s just a matter of degree… the government judges in all its own disputes, anyway, this is no different than the government granting itself the authority to assassinate on the basis of its own “assessment” of someone’s guilt or innocence. If you appear before a government court presided over by a government-paid judge, charged by a government lawyer with the crime of violating one of the government’s “laws” by which you are sentenced to death by government executioners, how is this any different from the President deciding to assassinate someone?
QFT.
Unfortunately, I don’t think it works that way. There are certain privileges afforded the federal government that are denied to the states and by extension the people (taxes, coining money, declaring war, making treaties, etc.) The federal government is also supreme in issues of legislating, judging. That’s why the Supreme Court has both original jurisdiction and appellate jurisdiction. The 10th Amendment says that any power not given to the federal government is reserved for the states and its people. But no man has the legal right to declare war on another. That power is reserved for the Congress and the power to wage war is reserved for the President. In other words, the President, by law, has very many privileges and powers that neither the states nor the people have. I’m just not sure that this is one of them.
In other words, you reject the ethical principle of universalizability. If you and I ever get into a dispute, I will keep that in mind. 
Clayton -
I think what I’m rejecting is the idea that ethics has anything to do with the law. The law clearly states what is and is not allowed. We have a federalist system of government where the federal government is given supreme power over the states (and by extension the people) which means that, when specified, the laws do not apply the same to the government (i.e. the POTUS) as they do to the people. He is given special powers that none of us have. One of those is to conduct the waging of wars. The question, imo, is whether or not this power to issue the equivalent of bills of attainder is given to the President in times of war. I don’t think it is. But it might be.
Again, this has nothing to do with morality or ethics, it’s just about what the law says. Even if I disagree with a law on moral terms, that doesn’t mean that I suddenly have the right to disobey it. I can work to try to change the law, but I am not allowed to disobey it without consequence, no matter how immoral or unethical the law may be.
EDIT: I have found an executive order issued by Reagan (Gerald Ford and Jimmy Carter both issued a similar one apparently) which reiterated a proscription on US intelligence agencies carrying out assassinations. I’ve also read that Abraham Lincoln made a similar proclamation during the Civil War. Is it binding on Obama? I do not know.
This is not very different than police assassinating people in the “line of duty”. Where the “order” comes from is not much to notice.
If there is anything in the universe that is unclear it is “the law”.
This is an unfortunately common attitude.
Yeah, OK, whatever.
I won’t bother explaining in detail, as I’m sure you’re familiar with the argument, but all of this could be just as well said of Capone’s neighborhood in Chicago.
Laws that are at odds with ethics are symptomatic of social illness. If you lived around Teotihuacan about 1,000 years ago, it was the “law” that you submit yourself to be a human sacrifice to the gods under certain circumstances. Of course, these “laws” didn’t apply to the nobles, warriors, priests or other elites who dutifully administered the will of the gods in this regard.
The problem with this statement should be obvious. (Hint: soldiers refusing commands to commit legal genocide… fill in the blanks yourself).
Clayton -
Well, I’m not trying to cure any social illnesses, I’m just trying to uphold (and personally obey) the law. I don’t care if some people think it’s immoral or unethical. Those are value judgments and I don’t see why I should care about them to be honest. Just saying.
Anyways, this talk of ethics gets away from the central question imo: "is it legal for a President to issue an order to assassinate US citizens at home or abroad if they’ve been deemed an “enemy combatant?” If it is, then where does he get this power from? If it’s not, what action can be taken to stop this and secondarily, do I personally care to see it stopped?
{Reminiscent of a moderator here who, while discussing 911 declared : “Why would you believe that they are lying? Believing that they are telling the truth is the logical starting ground. Furthermore, all the pieces fit if one believes that they are telling the truth.” }
Immortal words indeed.
Regards, onebornfree.
Legal by what standard? Statutes legislated by the very same government, authorizing itself to commit murder? I suppose, then, that any murderer can justify his actions by producing an “Executive Order #1093459340 Authorizing John Doe to Commit Homicide on His Own Cognizance”. Such an authorization is logically equivalent to the government authorizing itself to commit murder.
As I said above, I can envision a natural order society where assassinations occur. But let’s drop the pretense of legality. Assassination is inherently extra-legal and an act of war. It has nothing to do with the law.
Clayton -
Anyways, this talk of ethics gets away from the central question imo: "is it legal for a President to issue an order to assassinate US citizens at home or abroad if they’ve been deemed an “enemy combatant?” If it is, then where does he get this power from?
I just talked to three lawyers (one of them majored in Con Law)), none seemed to think it was anywhere close to legal (none have heard of this news event , and they only recieved the details from me orally). It is still illegal to assasinate heads of state. I will be hanging out with them again tonight, if you have (brief) specific questions you want me to ask them let me know.
If it’s not, what action can be taken to stop this and secondarily, do I personally care to see it stopped?
If you care, the best actions I can think to stop things like this: 1) have a white Republican put a hit on an “Arab” US citizen 2) Find a way to make legit accepted media that is pro constitution and anti Democrat 3) maybe uphold second amendment rights?
You personally caring if it should be stopped would have to depend on your specific circumstance and criterea; in the end though, I think this is semi irrelevent.
@Dondolee, the only question that I would ask is, if it were legal, where would the President get the authority? Because I know that Presidents are given a lot of power to wage war, but they cannot declare war. They also cannot pass judgment although they can pardon people.
Anyways, I’m pretty sure it’s illegal I haven’t been able to find anything that makes me think otherwise. You’re right, my personal feelings about this are irrelevant.
Yes, I agree, this is the current state of affairs, the reality, but it is certainly not how things were “supposed” to be, in my opinion.
There were originally only two constitutionally listed federal crimes[ if I remember correctly] treason and piracy.
The federal court system was allowed by the constitution to try any/all persons accused of either treason or piracy against the federal government [i.e not even against a state government], and nothing else.
Federal court[s] had no original jurisdictional authority under the Constitution to try persons who were not specifically accused of the crimes of treason or piracy against the federal government.
Any/all federal trials for treason or piracy STILL had to be before a judge and a jury, with all of the trial provisions and strict evidentiary procedures listed in the of the Bill of Rights followed to the letter.
But of course, nobody believes any of that nonsense these days .
Regards, onebornfree.
@Onebornfree,
That’s not what Article 3 says at all and the Bill of Rights weren’t passed with the Constitution. They were passed in 1791.
So, if what you’re talking about was the intention of the Framers, the final document certainly doesn’t read that way and the timeline doesn’t make sense because the Bill of Rights were passed 14 years after the initial ratification of the Constitution.
Although, in all fairness, it seems the Bill of Rights were initially introduced in Congress in 1789. But that’s still two years later.