Power to Kill

And Also: Very good panel discussion on Israel on Chris Hayes' show today, him repeatedly noting how Palestinians (represented by the woman from Miral) seem not to be part of the conversation except when they use violence. It is striking to me how the "two state solution" underlines how different things are from our country. Imagine if that was the path taken in 1863. 

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.

-- "The Power to Kill" (NYT Editors)

This is how an op-ed that agrees with a lot of what Holder said in his recent speech began.  Such an introduction is the sort of thing that takes a lot of air out of the room.  What does "real oversight" or "public accountability" mean?  Does Congress have no oversight over this sort of thing?  Did Obama oppose it?  What does "public accountability" mean?  Isn't this very op-ed but part of that?  And, did Lincoln think his military couldn't kill people during the Civil War without judicial involvement first?

To me, this is a prime case of needing to understand the basic issues at hand.  The matter arises as to the PPACA. Repeatedly, even when places like SCOTUSBlog discuss the matter, patently untrue things are said like "everyone" has to "purchase" insurance or they will be "fined."  When the conversation begins on the wrong foot, something like assuming that each time a person uses "birth control pills" they are having sex, how can we manage to have a fruitful conversation?  The whole thing is corrupted.

The op-ed ends with an opinion that I share:

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.

This "court" according to the op-ed can be like the FISA Court, not an ordinary federal judicial action.  When Congress first gave the President the power to call up the militia to use force against some domestic disorder, there was a provision that required a federal judge confirm that the situation was such that normal police action was not significant.* 

President Washington did not simply call forth the militia (in fact, leading it himself) during the Whiskey Rebellion.  He first obtained the okay from a federal judge.  If so, the same should be possible before killing a U.S. citizen except in the "hot pursuit" (see, e.g., TN v. Garner) scenario, which would include the battlefield (what that entails can be a sub-question) or the heat of the moment during a raid that aims to get a Bin Laden.  And, the memo should be made public.  While Dennis Kucinich rails against Obama and the woman who beat him, e.g., he can lead the movement in Congress (with certain Tea Party sorts) to subpoena the document.

I myself, maybe it's my problem, sometimes find it hard to get pass the dust to get to the core issues here.  But, that is the bottom line.  There are basic lines along with a lot of troubling power, some of which is legitimate in fact or as understood by current law.  Working within the no extremes approach that ala Gibbs on NCIS would be one of my rules, we should understand the whole picture there. And, I appreciate how the op-ed ends a lot more than how it begins. The beginning seems like some sort of necessary boilerplate before the real core of the situation is covered.

Let's stick with the latter.

---

*  The Militia Act of 1792, in part:

And be it further enacted, That whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, the same being notified to the President of the United States, by an associate justice or the district judge, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. 

This is statutory, so is not a matter of the courts on their own ruling on the question, perhaps avoiding the "political question" problem.  Imagine if such a rule was in place today!