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Can the President Now Kill Americans?
Never mind the Supreme Court and immunity, he’s had the power to kill an American citizen since 2010.
Justice Sotomayor, in her dissent from the majority decison in Trump v. United States to grant the president immunity from criminal prosecution for official acts he commits while in office, wrote: “The long-term consequences of today’s decison are stark… The president of the United States is the most powerful person in the country, perhaps the world. When he uses his official powers in any way, under the majority’s reasoning, he will now be insulated from criminal prosecution. Orders the Navy’s Seal Team Six to assassinate a political rival? Immune.”
Picking up on Sotomayor’s fears, left-wing media and pundits fantasized about President Biden having Donald Trump and the conservative Supreme Court justices killed as an official act following SCOTUS’ presidential immunity decision. “If I was Biden I’d hurry up and have Trump murdered on the basis that he is a threat to America’s security,” a radio host wrote on X. Is that OK now, as he reasoned?
The biggest problem with willy-nilly assassinations is the Fifth Amendment, which provides for due process before an American is deprived by the government of life, liberty or property. Capital cases require a grand jury. So while Biden may claim immunity if ordering Trump’s murder, he can’t get around the unconstitutional nature and thus impeachability of his action, immunity or not. Right?
Where things start to get fuzzy is with the assassination thing and Seal Team Six. The Seals conduct targeted killings all the time, nailing a terrorist here and an insurgent there across the Mideast. Officially these are labeled as “catch or kill” missions but there seems to be very little catching. The bin Laden raid is one high-visibility example where the kill option was explicit and primary. Of course when the Seals are busy elsewhere, drone assassinations are always a presidential option, as in the case of Iranian general Qasem Soleimani. None of these people are Americans with any Constitutional rights, and none were killed on American soil, so it all falls loosely under some category of acts of war or whatever. Which brings us to Anwar al Awlaki.
Al Awlaki and his 16-year-old son were American citizens assassinated via targeted drone attack in Yemen by the United States in autumn 2011. Al Awlaki had once been a friend of the American military, invited in the aftermath of 9/11 to speak and lunch at the Pentagon. A few years later, al Awlaki was connected by the same U.S. government to al Qaeda, apparently mostly as a propagandist who may or may not have taken on an online role in persuading other Westerners to join the cause.
In 2012 Attorney General Eric Holder said of the al Awlaki killing and the Fifth Amendment the “U.S. can lawfully target American citizens” and “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’” It was unknown at the time, but Holder was referring to a secret white paper prepared by the Office of the Legal Counsel laying out the legal justification for the U.S. government to kill one of its own citizens extrajudicially, in apparent violation of the Fifth Amendment.
The white paper was finally released in 2014 and showed a convoluted legal process had been created to legalize the American citizen killings and thus render the president immune for having ordered them. The essential element for the kill to be legal, the document says, is “an informed, high level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States.” Capture must be found to be unfeasible, and the kill must follow the existing laws of war.
The rest of the justification simply flows from there in a perverse chain of logic: the president has the obligation to protect America, al Qaeda or its like are a threat, and being in al Qaeda is more relevant than whatever citizenship the target may hold or where he is located (“citizenship does not immunize the target.”) International borders and other nations’ sovereignty are not an issue if the U.S. determines the host nation is “unwilling or unable to suppress the threat posed by the individual targeted.” But what about that due process promised Americans in the Fifth Amendment?
The Fifth Amendment right to due process (and perhaps to a lesser extent, the Fourth Amendment right against unwarranted seizure, i.e., a life) are dismissed casually in the white paper by a claim the U.S. interest in “forestalling the threat of violence and death to other Americans that arises” trumps any constitutional rights for the individual. This is described as part of a Fifth Amendment “balancing process.”
The balancing process cited as conclusive enough to justify the extrajudicial killing of an American, according to the white paper, stems from of all things a 1976 Supreme Court case, Mathews v. Eldridge, where the Court held that individuals have a statutorily granted property right in Social Security benefits, that the termination of those benefits implicates due process, but that the termination of those benefits does not require a pre-termination hearing. The balance test for the Fifth Amendment to apply to murders as laid out in that case has three components [notes added]:
(1) The importance of the private interest affected. [In a kill case, the private interest is the life of an American citizen.]
(2) The risk of erroneous deprivation through the procedures used, and the probable value of any additional or substitute procedural safeguards. [In a kill case, since the American will be dead, it is impossible to ever “correct” the mistake. The Court held that “If the risk of error is minimal, then the need for additional procedures declines. If the risk is high then additional procedures would be merited.” So, with the potential of a recoverable error, less process is needed. The more serious a mistake might be if committed, the more (perhaps non-judicial) process needed.]
(3) The importance of the state interest involved and the burdens which any additional or substitute procedural safeguards would impose on the state. [According to the kill white paper, the idea that killing the American saves potentially thousands of other Americans lies is the state’s interest. The burden of the U.S. government to follow any procedural safeguards, such as a trial in absentia where the target could have his side presented by a lawyer, is not addressed in the kill white paper]
In short, the balancing test says that in some situations, the president can kill an American citizen extrajudicially. No need for Supreme Court-granted immunity, like in the Wizard of Oz he has always (at least since 2010) had the power.
“Where national security operations are at stake, due process takes into account the realities of combat,” then-Attorney General Eric Holder said. “Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al-Qaeda or associated forces. This is simply not accurate… our government has the clear authority to defend the United States with lethal force [and] our legal authority is not limited to the battlefields of Afghanistan.”
So can the president really kill an American, in America? There are no known test cases, but some very disturbing testimony by then-FBI Director Robert Mueller.
Mueller, appearing before a House subcommittee on whether the same criteria used to kill Americans abroad also would apply in the United States and whether the President retained the “historical” right to order such assassination on U.S. land, said that he simply did not know whether he could order an assassination of his own against an American here in the U.S. “I have to go back. Uh, I’m not certain whether that was addressed or not” and added “I’m going to defer that to others in the Department of Justice.”
Note that Mueller had the option of saying flat-out “No, no, the FBI can’t order an American killed in the U.S.” or maybe “No, even the President can’t order a hit on an American here in the U.S. where the full judicial system, Constitution, and other protections apply.” Mueller did not say those things. Instead, in 2012 under oath before Congress, the senior G-man of the United States, who to get his job had to swear an oath to uphold the Constitution, was so worried about perjury that he was unable to say whether or not the U.S. government can indeed kill one of its own citizens inside the United States without trial.
Immunity may have its dangers, but it is only a small part of the problem given the vast expansion of presidential capital power in the aftermath of 9/11.
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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John Poole said...
1Mueller, Holder…..let’s throw in Kerry. All very odd fellows. It appears now that Kerry joined the military during the USA’s immoral and illegal invasion of Vietnam to mimic JFK’s WWII service in order to seek the office of the POTUS eventually. Holder is just plain odd. Mueller is off the charts. Shouldn’t an extrajudicial killing only be considered after all means of capturing, trying and imprisoning are clearly impossible. “Brought to trial” should mean something other than bringing an end to a guy like al Awlaki with a bullet or explosion.
07/16/24 8:26 PM | Comment Link
Rich Bauer said...
2The question is how many Americans did Donald Trump kill by lying about the danger of Covid? As the Red MAGA states had a 38% higher death rate than blue states, the figure is over 300,000..
07/17/24 1:21 AM | Comment Link
Rich Bauer said...
3Only the naive don’t believe American citizens haven’t been killed in the US by their government. Of course these deadly deeds are farmed out to give politicos plausible deniability. In Most of these killings the Presidense won’t have any knowledge. The CIA and Defense (read:Deep State ) have a farm system of ex-agents doing wet works, mostly abroad. There is nothing sacred about being a US citizen. If you are deemed a threat, you are removed.
Which brings US to the present situation of the Russian useful idiot who threatens national security by pulling out of NATO. If the threat is real, then the Deep State will ensure its own survival. Politicos are a dime a dozen.
07/17/24 9:59 AM | Comment Link
Rich Bauer said...
4“The biggest problem with willy-nilly assassinations is the Fifth Amendment, which provides for due process before an American is deprived by the government of life, liberty or property. “
Yeah, about that. That’s a mission impossible
Kittridge: Hello, Max.
Max: My lawyers are going to have a field day with this. Entrapment, jurisdictional conflict…
Eugene Kittridge: Well, maybe we’ll just leave the courts out of this one.
07/17/24 5:32 PM | Comment Link
Rich Bauer said...
5By Hook or by Crooks
Senile Joe just got the hook. Schumer and Jeffries tell Joe it is time to leave the stage. Forgetting your lines in primetime is not a way to convince the audience or the critics.
Trump gets the Crooks, as half of his inner circle is behind bars. Jailbirds of a feather…
So how does this pathetic play end in November? Assuming Cannon has blown herself out of the water with her corrupt rulings, there will a new judge in town. Trump will be convicted for Espionage and sentenced to spend time in the Village, getting waterboarded for information.
Trump: You won’t get it.
CIA Black Site: By hook or by crook, we will.
The Prisoner
07/17/24 10:22 PM | Comment Link
Rich Bauer said...
6It ain’t all rainbows and lollipops, Peter.
It must be evident to even Peter the Trumpists on the Supreme Court don’t believe in the rule of law when power politics is the rule.
The Dems know how to play this deception game. Consider the Biden stay, Biden go fiasco. It is designed to take attention away the Nazi rally in Milwaukee. This comes after weeks of public and private panic from various Democratic leaders that began snowballing with Biden’s low-energy debate stumble against former President Donald Trump in Atlanta last month. Biden has repeatedly stated he has no intention of leaving the race and has worked to reassure allies and donors of his fitness to continue with a blitz of public events and interviews, to little effect. Senate Majority Leader Chuck Schumer (D-NY) and former House Speaker Nancy Pelosi (D-CA) have both worked behind the scenes in recent days to try to nudge him out. It also comes as Biden is isolating at his home in Delaware after testing positive for COVID-19 with mild symptoms — ironically, just hours after saying that a “medical” issue is one of the only things that could push him from the race.
Just wait until the RNC – the Racist Nazi Convention- leaves the stage that Biden is replaced.
07/18/24 11:18 AM | Comment Link
John Poole said...
7Bauer-as if we didn’t expect this ominous eventuality in our interconnected world which was supposed to be egalitarian but is the same old power structure setup. Some MS media sites include a warning at the end of the comment posting agreement. “Remember, freedom of speech is not freedom to reach.”
07/18/24 1:07 PM | Comment Link
Rich Bauer said...
8JP,
Diapers-on-his- ear looks like he hasn’t slept in a week. Not surprising as PTSD insomnia is typical when your life literally ends before your eyes. It is estimated Diapers has lost 1-2 years of his expected lifespan because of the trauma. While we all thought the cheeseburgers would do it, who knew the Butler did it?
Speaking of lost lifespan, lifeless Senile Joe is headed for the political graveyard this weekend. Pelosi and the other gravediggers have thrown dirt on his chances. Jill and the Biden Cult are performing the Monty Python Dead Parrot skit to convince the 10% who still back the Dead President. While we all thought Covid do it, who knew it would be Barack to the Future?
07/19/24 8:51 AM | Comment Link
Rich Bauer said...
9Question of the Day
Does a society that allowed sick fucks access to weapons of mass destruction have the right to judge said sick fuck ?
07/19/24 11:31 AM | Comment Link
Presidents already claim right to kill citizens | Phil Ebersole's Blog said...
10[…] Can the President Now Kill Americans? by Peter Van Buren for We Meant Well. […]
07/19/24 6:15 PM | Comment Link
John Poole said...
11Bauer- it was his father’s AR-16 clone. The parents seem like…………..total assholes. Time for another trial. Maybe they can befriend the parent couple who are currently serving time. My motto: If you replicate and parent carefree then be prepared for free care (in prison) if your child seriously messes up.
07/19/24 9:51 PM | Comment Link
Rich Bauer said...
12JP,
The Trump assassination is a Replica of the Newtown Ct massacre: Psychotic kid got his hands on AR15 (the gun nut mom had 40 guns) from his Christian mom who knew he was in psychic distress, blows her head off and proceeds to wipe out 20 children and teachers. Crooks “professional” parents ignored his decline, let him have access to weapons(20 in the house). Just surprised Crooks didn’t kill them and then attack his high school where he was bullied.
It would be nice to think there is a solution to preventing psychotic young male teens from getting their hands on weapons of mass destruction. Ther ain’t one. Do the math: 22,000,000 AR15s in circulation in psychotic USA. 5% of the population suffers from mental illness. It is funny MAGA blames law enforcement for the Trump fiasco. Its sick gun fetish made it possible. If it wants to point the blame, turn the gun on themselves. This is just the beginning of the End.
07/20/24 10:17 AM | Comment Link
Rich Bauer said...
13As more trickles out about the Butler assassination fiasco, MAGA is thinking the Secret Service had to be involved in a grand conspiracy to kill Trump. The latest news is DHS agents replaced trained Secret Service agents guarding Trump, and SS refused to add security personnel to Trump’s detail. Given THE z Trump Project 2025 plan to gut the federal workforce, SS would be a great place to start.
But let US be clear, there is no grand conspiracy. As Boeing, Crowdstrike fiascos prove, Never attribute to malice that which is adequately explained by stupidity.
07/21/24 8:49 AM | Comment Link
John Poole said...
14Who knew Dr. Jill was running things? “Hang in there Joe! Hang in there Kimberly (Cheatle)!
07/21/24 9:42 AM | Comment Link
John Poole said...
15Bauer there are plenty of sinister and stupid people already working in the federal and state government. Why don’t they use cheap drones to beef up protection? The kid would have needed a shotgun to take one out that had spotted him.
07/21/24 12:38 PM | Comment Link
Rich Bauer said...
16JP,
As the MAGGOTS said, it was God’s will that Diapers survived. Senile Donald Trump is an easier candidate for the Dems to defeat. See Peter’s latest article on Age.
07/22/24 3:59 AM | Comment Link
Rich Bauer said...
17BURN AFTER READING- Is the Deep State censoring Peter?
Peter’s latest article posted Sunday about old age in the Presidense race has mysteriously been erased. I checked AmCon for a recent article by our Peter ….and NOTHING.
WTF is going on? Has Peter pissed off the Spooks and been spirited off to some black site? Maybe JP can ask his Old KGB contacts to do a w/w on Peter.
If nothing nefarious, has Peter too embarrassed to post the article as it makes Donnie Diapers the senile candidate in the race? Peter has never been too embarrassed before to write garbage and felt the need to send it to the trash bin.
07/22/24 12:41 PM | Comment Link
Rich Bauer said...
18While MAGGOTS vented their fury on senorita Secret Service for incompetence that almost got their FUEHRER assassinated, some people have suggested SS agents were too exhausted from having to service Melania at night. Don Dementia wouldn’t know about that. In fact, Don Dementia isn’t aware of much these days.
07/22/24 12:56 PM | Comment Link
Rich Bauer said...
19Don Dementia just attracts Crooks.
07/22/24 8:33 PM | Comment Link
John Poole said...
20The Democrats took the weaselly route by having Biden stating only that he would not seek a second term. He should immediately resign and Harris sworn in. It would spare us all from even having to glance at a clinically impaired Biden in the shadows. Maybe a pissed-off Dr. Jill will pillow Joe and the DNC can add a memorial to their gathering. We proles are told that VPs are carefully vetted to make sure they can immediately become POTUS if the need arises so make Harris POTUS now! What are they waiting for? Do they need two months with their wet fingers in the air as an audience test screening? It is clear to me that Kackling Kamala has never been ready for prime time nor will she ever be. Hell, she couldn’t even host a podcast of syndicated sitcom reruns. The Democrats are maybe hoping for another affirmative action victory with KK. Well, why not? They did manage to pull off the grandest affirmative action victory with Obama getting two terms when it was clear his hope and change thingee was a sinister scam.
07/23/24 6:19 AM | Comment Link
Rich Bauer said...
21Reports suggest JD is betting Don Dementia has forgotten the mean things JD has said about Don Dementia. Tweets like: In October 2016, Vance tweeted, “What percentage of the American population has @realDonaldTrump sexually assaulted?”
Fact: Don Dementia may forget many things, but personal attacks he never forgets or forgives. JD may hope something bad happens to Don Dementia if elected, ascending him to the top. But if Dementia Don is elected, JD will find in a House of Cards, the Joker is the first to go.
07/23/24 9:35 AM | Comment Link
Rich Bauer said...
22JP,
Now that Senorita Secret Service has resigned, don’t for a minute think the investigation of the botched assassination of Don Dementia is over. Somebody inside the Trump Team wanted DD dead when that person picked the site of the Butler rally, an assassin’s wet dream with perfect sight lines and easy escape routes. The Butler police didn’t even have a chief or deputy at the time or the manpower to assist the SS. If the assassin had any skill, DD would be dead. Somebody on the DD team knew Senile Joe was on the way out and did not want DD to be the old man standing. If DD was assassinated, the GOP could run Tim Scott and win in a landslide. For DD’s sake, stay out of assassin’s sight and no more open area rallies.
07/23/24 2:14 PM | Comment Link
Rich Bauer said...
23Oh dear, the ratings are not good for Don Dementia and VD Dance. If things don’t improve, DD will need to dust off the Mike Pence gallows or have a burning Hillbilly Effigy.
07/23/24 3:59 PM | Comment Link
Rich Bauer said...
24THE GREAT STAKES RACE
Is it fair for the Democrats to run a fresh Filly against a tired old horseface, THE GREAT EXAGGERATOR, who is dying in the homestretch? His supporters need to know if Don Dementia is getting juiced or not. Musk has made bad bets on Twitter and reportedly is betting millions on DD. The GOP is already claiming foul against the late entry of the GREAT PROSECUTOR, who has her sights on beating crooks. They shoot horses, don’t they ?
07/23/24 5:17 PM | Comment Link
Rich Bauer said...
25Get your bets down
The Reuters/Ipsos poll, conducted between July 22 and July 23, found Harris leading Trump 44% to 42% among registered voters.
The popular vote win for Harris was a given. Harris needs to trounce the old horseface by at least 5 points to win the EC.
07/23/24 5:20 PM | Comment Link
Rich Bauer said...
26Not since the Normandy Invasion has there been a greater deception than the Biden Harris caper. Waiting until after the Nazi rally in Milwaukee to spring the Harris attack was a strategically genius move. The Trumpista fascista deployed all their resources against the Biden Ghost campaign, similar to the fake tanks the Brits deployed to fool the Nazis. Stephen Goebbels Miller was foaming at the mouth at the Biden Harris deception, as if some war crime was committed. The MAGGOTS recoil in horror as the Harris campaign received $100 million in one day in small donor contributions. The Nazis lost the war when the allies landed on the beach. Just a matter of time Putin turns on Trump.
07/24/24 8:13 AM | Comment Link
Rich Bauer said...
27Did Fox News Brian Dimwit Kilmeade just try to kill the next president’s civil rights when he shot his racist mouth off today demanding to know why Harris would rather attend a COLORED SORORITY event than a mass murderer’s speech? I mean, where do these colored people get off? Do what their white masters tell them to do.
Colored? This would be a shock to Niki Haley as she knows the USA has never been a “racist” country. It was the same racist Kilmeade who asked Haley whether she thinks the GOP is a “racist party.” Guess he was hoping she agreed.
07/24/24 11:20 AM | Comment Link
Rich Bauer said...
28Let the Butler PA assassination conspiracy begin
FBI Director has cast doubt on whether Diapers was actually hit by a bullet, suggesting the possibility it was shrapnel that also hit three security guards standing near him. Diapers has so far refused to release the emergency doctor’s medical report, which has created conspiracy rumors about the incident.
A Butler Assassination Committee has been ordered by both political parties. If Diapers refuses, imagine Gym Jordan will demand answers. Right.
07/25/24 10:31 AM | Comment Link
Rich Bauer said...
29The Big Question of the Day—
Why hasn’t the Deep State deep-sixed Peter’s article about presidenses killing Americans? This article raises more serious questions than Peter’s disappeared article on Joe Biden’s age. And if the Deep State has got our poor Peter locked up in some dank cell, is this the end of We Meant Well?
JP,
You got sources in the Kremlin. Can you find out if Peter is about to be replaced by ChatGPT?
07/27/24 8:49 AM | Comment Link
Rich Bauer said...
30Of course there are many ways to destroy your enemies. Trump selected Vance to keep his enemy close. Vance then shot off his mouth to destroy Trump. His latest blast antagonized childless cat ladies. Those ‘childless’ women Vance speaks of? There are 46 million of them.
Purrrrrfect.
07/27/24 12:44 PM | Comment Link
Rich Bauer said...
31Matt Gaetz: Is it a crime to take a love seat across state lines for sex? Asking for a friend.
07/27/24 6:07 PM | Comment Link
Rich Bauer said...
32Not one to pass up a buck, Trump MAGA WORLD is selling Ad-Vanced Plastic Sofa Protectors for $19.99. Waterproof and stain-resistant. No need to worry when you invite your MAGA male friends over to watch the blonde bimbos on FoX and Fiends.
07/28/24 2:23 PM | Comment Link
Rich Bauer said...
33Can a bad vice-prez selection kill a presidense’s chances for reelection? Vance has certainly put the VICE into his selection. As elections are usually won by making it about the character of the opponent, If the Dems were smart they would pick the blandest candidate for Harris’ running mate. That would be Walz or Beshear.
Trump maybe should call Pence to see if he wants to hang around with his ol buddy.
07/28/24 5:20 PM | Comment Link
Rich Bauer said...
34Can a Presidense kill a political party?
The WEIRD choice of a SUSPECTED sofa sex pervert by a PROVEN sex pervert for the two highest positions of a political party may be intentional. Since losing the popular vote by 3,000,000 in 2016, Diapers has been on a tear; the GOP has lost or severely underperformed expectations since the OC symbolically came down the golden escalator.
Since 2000, vice-presidential nominees typically have had a net-positive rating immediately following the convention, at plus 19 points. VD Vance, however, is polling at minus 6 points just one week after accepting the vice-presidential nomination and officially embarking on the campaign trail. The freshman lawmaker’s lower-than-normal approval ratings are not an anomaly, as VD Vance has long polled behind other Republicans.
THE ONLY LOGICAL CONCLUSION – TRUMP IS NOT ONLY BEHOLDEN TO PUTIN. FOLLOW THE MONEY. TRUMP NEEDS IT BADLY.
07/29/24 11:37 AM | Comment Link
Rich Bauer said...
35While the media promote an unfounded fear that electing coward Trump with Project 2025 will let result in a Presidense killing Americans, that fear may be justified if/when JD Vance assumes the position when Trump is no longer able to serve.
JD Vance is in dire need of therapy to deal with trauma from a broken childhood. His statements to date indicate a deep hatred for women and a need for a strong father in his authoritarian bent. The guy is dangerous.
JDVance: There are no more barriers to cross. All I have in common with the uncontrollable and the insane, the vicious and the evil, all the mayhem I have caused and my utter indifference toward it I have now surpassed. My pain is constant and sharp, and I do not hope for a better world for anyone. In fact, I want my pain to be inflicted on others. I want no one to escape. But even after admitting this, there is no catharsis; my punishment continues to elude me, and I gain no deeper knowledge of myself. No new knowledge can be extracted from my telling. This confession has meant nothing.
There is an idea of a JD Vance; some kind of abstraction. But there is no real me: only an entity, something illusory. And though I can hide my cold gaze, and you can shake my hand and feel flesh gripping yours and maybe you can even sense our lifestyles are probably comparable… I simply am not there.
07/30/24 9:28 AM | Comment Link