Upholding and Defending the Constitution
Honorable Patrick Leahy
Chairman, Senate Committee on the Judiciary
United States Senate
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510
Honorable Lamar Smith
Chairman, House Committee on the Judiciary
United States House of Representatives
2138 Rayburn House Office Building
Washington, DC 20515
Re: Upholding and Defending the Constitution
Dear Chairman Leahy and Chairman Smith:
The recent detailing by The New York Times of a secret White House self-styled “Kill List” frightfully reminiscent of practices by totalitarian regimes is a lethal assault on the Constitution and the rule of law. We are convinced that you are legally and morally obligated by your constitutional oath to hold prompt and comprehensive hearings into the constitutionality of President Obama’s secret unilateral death decrees against citizens and non-citizens alike. In perpetrating the appalling violations, the President simultaneously plays the role of secret prosecutor, judge, jury, and executioner in scornful defiance of the Constitution’s separation of powers and checks and balances.
We believe that inaction despite constitutional authority to investigate a prima facie case of presidential “high crimes and misdemeanors” under Article II, section 4 of the Constitution would make you complicit. As Edmund Burke observed, “all that is necessary for evil to triumph is for good men to do nothing.”
An inexhaustive list of the constitutional violations disclosed in The New York Times story would include:
1. The President orders killings without time-honored procedural safeguards against error and injustice and beyond constitutional authority under Article II or otherwise, the very definition of tyranny according to the Founding Fathers. The killings are not authorized by the 2001 Authorization to Use Military Force or other congressional action. They are not exercises of inherent Article II war powers of the President according to Supreme Court precedents. Justice Robert Jackson warned in Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579, 642 (1952) (concurring opinion):
“Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may, in fact, exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture.”
2. Suspected terrorists are ordered killed by the President with no attempt to capture—a violation of the War Crimes Act of 1996, as amended, 18 U.S.C. 2441.
3. The killings are also war crimes because they serve no legitimate military objective. William A. Daley, White House chief of staff in 2011, is quoted as saying: “One guy gets knocked off, and the guy’s driver, who’s number 21, becomes 20? At what point are you just filling the bucket with numbers?” The New York Times story adds: “[Dennis] Blair, the former director of national intelligence, said the strike campaign was dangerously seductive. ‘It is the politically advantageous thing to do—low cost, no U.S. casualties, gives the appearance of toughness. It plays well domestically, and it is unpopular only in other countries. Any damage it does to national security only shows up during the long term.’”
4. With no authority from Congress, the President secretly delivers terrorist suspects to foreign governments (with the potential of torture) in violation of due process.
5. The President recklessly orders killings justified by a totalitarian theory of guilt by association. The New York Times reports that all military age males in a strike zone are deemed imminent dangers to the United States and killed (no matter how non-existent, or remote in time their conceivable future involvement in a terrorist act). The dead are counted as “militants” unless there is explicit posthumous intelligence proving them innocent! The logic is Orwellian. An official maintained: “Al Qaeda is an insular, paranoid organization—innocent neighbors do not hitchhike rides in the back of trucks headed for the border with guns and bombs.” A dissenting official commented: “It bothers me when they say there were seven guys, so they must all be militants. They count the corpses and they’re not really sure who they are.” The story also reported that, “Today, the Defense Department can target suspects in Yemen whose names they do not know.” In these operations, known innocents have been regularly killed in Afghanistan, Pakistan, and Yemen, including 16-year-old United States citizen Abdulraham al Awlaki and his 17-year-old Yemeni cousin while eating dinner.
6. The rule of law has succumbed to the rule of men. Thus, State Department Legal Advisor Harold Koh voiced confidence in the self-styled “Kill List” because it is screened by White House adviser John Brennan, whom Koh praised as priestly and “a person of genuine moral rectitude.”
7. Suppose you believe that President Obama is benignly motivated to achieve justifiable ends. It still seems undeniable that constitutionally enshrined procedural safeguards against tyrannical government are being trampled. The precedents ratifying absolute presidential power set by Obama will lie around like a loaded weapon ready for use and abuse by any future White House occupant. “The history of liberty has largely been the history of observance of procedural safeguards,” the Supreme Court lectured in McNabb v. United States, 318 U.S. 332 (1943).
8. The President recklessly ordered the killing of Baitullah Mehsud for killing despite being told by his advisers that his wife would also be a casualty; and, that Mehsud himself was a risk to Pakistan, but not to the United States. The predator drone attack predictably killed his wife and perhaps other nearby family members.
9. The New York Times writes regarding Obama’s first drone strike in Yemen on December 17, 2009: “It killed not only its intended target, but also, two neighboring families. It left behind a trail of cluster bombs that killed more innocents… Videos of children’s bodies and angry tribesmen holding up American missile parts flooded You Tube, fueling a ferocious backlash that Yemeni officials said bolstered Al Qaeda.”
10. The President regularly authorizes so-called “signature” strikes that purport to target military training camps or suspicious compounds allegedly controlled by militants based on shaky evidence shielded from outside review. The New York Times reports that officials at the State Department have joked that when the CIA discerns “three guys doing jumping jacks,” the agency is convinced they are at a terrorist training camp..
11. Former Director of Central Intelligence and Director of the National Security Agency Michael Hayden lamented: “This [killing] program rests on the personal legitimacy of the president, and that’s not sustainable. I have lived the life of someone taking action on the basis of secret O.L.C. [Office of Legal Counsel] memos, and it ain’t a good life. Democracies do not make war on the basis of legal memos locked in a D.O.J. [Department of Justice] safe.”
Inside the Executive Branch, there are many silent dissenters to the White House’s vandalizing the Constitution that imperils national security. Some of these patriots need the protection of your committees to speak out. We urge you to display the moral and intellectual courage against tyrannical practices that gave birth to the United States. One should not become an accomplice in the incremental destruction of the American Republic and violate one’s constitutional oath to uphold our Constitution and the rule of law.
Be steeled by Tacitus’ judgment on the fall of Rome: “The worst crimes were dared by a few, willed by more, and tolerated by all.”
Bruce Fein, Constitutional Attorney
Ralph Nader, Attorney, Public Advocate
Lt. Col. Tony Shaffer, Retired Intelligence Officer
William Quirk, Professor of Law – University of South Carolina School of Law
Theresa Amato, Attorney, Public Advocate
Marcus Raskin, Social Advocate, Political Activist
Lynne Bernabei, Esq., Civil Rights Attorney
Greg Kafoury, Esq. Civil Rights Attorney
Carl Mayer, Attorney and Social Advocate
John Whitehead, Constitutional Attorney
Mike Ferner, Former President, Veterans for Peace
cc: The Members of the Senate Committee on the Judiciary, the Members of the House Committee on the Judiciary