In LAWFARE (May 12, 2014) (David Barron, Targeted Killing, and Rand Paul's Wrongheaded Oped) Benjamin Wittes unconvincingly summons precedents extracted from Alice in Wonderland and The Hunting of the Snark to assail Senator Rand Paul's skepticism towards presidential authority to play prosecutor, judge, jury, and executioner to kill any American citizen on the President's say-so alone. That harrowing combination of functions was decried by James Madison, father of the Constitution, as the very definition of tyranny.
In Alice in Wonderland, The Knave of Hearts was prosecuted for allegedly stealing the tarts in Tyrant v. The Knave, 26 Journal of Limitless Executive Power 183 (1882). The prosecution initially contemplated a jury trial. But the Queen of Hearts summarily disposed of the Defendant by decreeing, "Sentence first, verdict afterwards."
The Committee for Due Process complained that the Queen was not infallible, and that a jury trial was necessary to safeguard against injustice. But the Queen retorted: "The legal standard for sentencing first and rendering a verdict later does not endow me with limitless power. It can be exercised only when I am certain the Defendant is an imminent and grave danger to the domain."
Mr. Wittes similarly disputes Senator Paul's contention that the President's claimed power to kill American citizens is limitless. Like the Queen of Hearts, he emphasizes that the President's killing authority is narrowly confined. It applies only to cases in which the President convinces himself in secret with no outside review or vetting that the assassination target was an operational leader of Al Qaeda (as opposed to a non-operational leader), who posed an imminent threat, whose capture was infeasible, and whose extermination was consistent with the law of armed conflict. Mr. Wittes should tell that to Nibila ur Rehman, the surviving 9-year-old granddaughter of a 68-year-old grandmother in Pakistan who was exterminated by a predator drone while the two were picking vegetables!
But according to Mr. Wittes, since the President is infallible in national security matters, notwithstanding World War II concentration camps for loyal Japanese American citizens and resident aliens, a bogus second torpedo attack in the Gulf of Tonkin, WMD in Iraq, etc., the presidential power to kill on his say-so alone is unalarming.
In The Hunting of the Snark, the Bellman sought to convince his crew of the location of the Snark. To quell any doubts, the Bellman harrumphed: "Just the place for a Snark! I have said it thrice: What I tell you three times is true." Mr. Wittes thus insinuates that President Obama's extrajudicial killing of Anwar Al-Awlaki (followed shortly thereafter by the extermination of his teenage son) was fully justified because the President had soliloquized three times that Mr. Awlaki was a senior operational leader of an enemy force actively plotting attacks on the United States. Mr. Wittes is undisturbed by the fact that Mr. Awlaki had never been charged with a crime (in contrast to Osama bin Laden), had been targeted for assassination for two years (which suggests that absence of an imminent threat), and could easily have been captured instead of extinguished. The President killed Awlaki because a trial would have exposed his previous service as an informant for the United States.
Mr. Wittes urges that part of the rule of law is the Authorization to Use Military Force. True enough. But the plain language of the AUMF confines the authorization to use military force against persons involved in the 9/11 abominations or who harbored those who were complicit in the mass murders. And every person in that universe has already been killed or captured.
Mr. Wittes is appalled that David Barron, a nominee to the United States Court of Appeals for the First Circuit, should be asked to discuss the legal advice he provided the President while under a single oath to uphold and defend the Constitution of the United States, not the temporary occupant of the White House. Remember in the famous Nixon tapes case, United States v. Nixon, 418 U.S. 683 (1974), the Department of Justice represented the United States government on behalf of the American people, whereas Mr. Nixon represented himself as the President. Furthermore, the attorney-client privilege belongs to the client. There is no obstacle to President Obama's waiving the privilege to enable Mr. Barron to testify freely about his advice finding legal justification for exterminating American citizens upon unilateral orders of the President ominously similar to how President Vladimir Putin presides in Russia.
In sum, Senator Rand Paul is like Horatius at the bridge standing against the serial vandalizing of the Constitution by the President of the United States and his myrmidons at the Department of Justice. He would be lionized by the Founding Fathers and the soldiers who endured Valley Forge.