The Assassination Decider

by Jacob G. Hornberger
Oct. 09, 2011

Statists are continuing to say that President Obama’s assassination of American citizen Anwar al-Awlaki (through his CIA and military forces) was justified because Awlaki was supposedly exhorting Muslims to resist U.S. foreign policy with force and that he was also supposedly engaged in operational activities to bring this about. For his part, Obama is remaining mum on the subject, as are the CIA and the Pentagon.

The statists are missing the point, however. What Awlaki was doing or not doing is irrelevant. He’s now dead and nothing can bring him back to life. And his family will be precluded from bringing any wrongful death actions against the government owing to the doctrines of “national security,” “state secrets,” and “war on terrorism.”

What matters is this: the Awlaki assassination confirms that we now live in a country in which the ruler has the unfettered, non-reviewable power to kill his own citizens, without a trial or any due process of law. That’s where the U.S. government's pro-empire foreign policy and the resulting “war on terrorism” have brought us. That’s not exactly what the founders of this country envisioned when they brought the federal government into existence.

The fact is that Obama is now the decider when it comes to assassinating American citizens. He wields the omnipotent power to order his intelligence and military forces to kill any American he labels a terrorist or a threat to “national security.” He knows that no court is going to second-guess him, especially when his attorneys in the Justice Department simply mention to some presiding federal judge the magic terms “national security” and “state secrets.” And he knows that the Congress isn’t going to impeach him for killing an American, especially since he can simply say, “I have a legal opinion from my Justice Department authorizing me to assassinate Americans whom I determine are terrorists, and you can’t second-guess my decisions on this because it’s part of the ‘war on terrorism.’”

What can an American who has been placed on Obama’s assassination list do about it? Nothing. If he asks a friend or relative to seek the assistance of the federal courts with an injunction enjoining the government from assassinating him, the federal judge will summarily dismiss the case based on the fiction that the person lacks standing to bring the suit, knowing full well that if the target of the assassination brings the suit himself, he will be assassinated by the president’s forces before he even has the chance to enter the courthouse.

Suppose the CIA and the military proceed to assassinate him. Then what? Then nothing. Remember that under our post-9/11 political system the president is the assassination decider. He makes the final, non-reviewable determination on assassinating an American. If the victim’s family later sues the government for wrongfully and unconstitutionally assassinating this American, the federal judge will immediately dismiss the case on hearing the magic terms “national security” and “state secrets” come out of the mouths of Obama’s lawyers. And, again, the Congress isn’t going to get involved with any investigations into why an American was assassinated because they’re not going to second-guess Obama’s “war on terrorism” decision to take out the American.

The omnipotent, non-reviewable power to assassinate one’s own citizens is, needless to say, the hallmark of a totalitarian regime. It is, in fact, the ultimate power in the tool chest of a totalitarian dictator. It obviously trumps the power to tax, the power to inflate, the power to confiscate guns, the power to suppress religion, and the power to censor speech. In fact, the dictator can permit the citizenry to exercise all those rights, knowing that the omnipotent, non-reviewable power to kill his own citizens (and, of course, the power to seize them, throw them into a military dungeon and incarcerate them forever without a trial, and torture them) will keep them in line.

After the 9/11 attacks, when President Bush and his CIA and military forces began torturing and assassinating foreigners, we libertarians emphasized that the Fifth Amendment to the Constitution, which prohibits U.S. officials from depriving a person of life, liberty, or property without due process of law, applied, by its express terms, not just to American citizens but to all persons, including foreigners. We said that once the power to arrest and detain indefinitely, torture, and assassinate people was permitted to be wielded against foreigners, there was no way to prevent such power from being ultimately wielded against Americans.

Unfortunately, we have once again been proven correct. As the Awlaki assassination shows and as the Jose Padilla case showed, the president now wields the omnipotent, non-reviewable power to round up, detain indefinitely, torture, and assassinate his own citizens — the same omnipotent, non-reviewable power that U.S.-supported dictators in the Middle East wield against their citizens.

Meanwhile, even as people in the Middle East are demanding that their governments abandon such totalitarian powers over them, American statists continue to sing, “Thank God I’m an American because at least I know I’m free,” reminding us of Johann von Goethe’s immortal words, “None are more hopelessly enslaved than those who falsely believe they are free.”
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Jacob Hornberger is founder and president of The Future of Freedom Foundation.