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February 20, 2006

Shoot to kill in Chicago
Posted by Morton H. Halperin

Does the president have the right to order the military to shoot a citizen on the streets of Chicago? Could a judge order him not to?  Could Congress pass a law prohibiting such shootings that President Bush would feel that he had to obey?

Regretfully, we have come to the point where these are no longer hypothetical questions.

After all, the legal theory put forward by the administration to justify warrantless surveillance, torture, and detention of "combatants" does not seem to have any limits, and the president did order the military to seize a citizen in Chicago and lock him in a military prison without any right of judicial review and in violation of an explicit law banning such detentions. When the case finally got to court the government transferred Mr. Padilla to a regular prison in the hope of avoiding review.  (The Supreme Court is still considering the case.)

Attorney General Gonzales, at the recent Judiciary Committee hearing, declined to provide a direct answer on this question, saying it was not part of the warrantless surveillance program that he was discussing.  He seemed to admit that there were other "programs" that he was not discussing, so this provided little comfort.  Moreover, another official in a closed session apparantly did concede what is obvious to any careful reader of the administration's statements, namely, that there is no way to distinguish the right to order assasinations from other powers that the President has claimed.

The claim is a breathtaking one that we are slowly learning produced enormous unease within the bureaucracy among both career officials and political appointees as well as from constitutional scholars of all ideological dispositions.   

The administration is desperately trying to keep the internal dispute about the NSA warrantless surveillance program from becoming public.  It has apparantly instructed former Attorney General Ashcroft and his deputy not to testify about the concerns they have had about the program.  It refuses to make public any documents revealing the internal debate on the issue or even the legal memorandum which it relied on when it began the program.

Its efforts to keep similar memos related to torture ran into some difficulty this week when the New Yorker published a story about the efforts of the Navy General Counsel to oppose illegal interrogation methods at Guantanamo.  The New Yorker published on its website his full memorandum detailing his efforts to get the Secretary of Defense to revoke orders which permitted activities which he, and many others in the Department, viewed as illegal and dangerous. 

Ultimately, the efforts in the Pentagon were trumped by a memorandum from the office of legal counsel in the Justice Department which presents the sweeping doctrine of presidential power on which the surveillance, torture and detention policies rest.  This memo needs to be made public.

Congress needs to assert its constitutional role by conducting vigorous oversight hearings of all three programs, which it has yet to begin.  It also must act to preclude their implementation, first by legislation prohibiting them along the lines of the McCain amendment on cruel and unusual punishment. If the President refuses to acknowledge his need to abide by such legislation, Congress will need to resort to the power of the purse to cut off funding.  If the President remains defiant, impeachment would be the last resort.  Anything less threatens the future of our constitutional structure.   


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