Balkinization  

Tuesday, February 14, 2006

DOJ Memo Defends Cheney Shooting

JB

Frankly, I don't understand all the fuss about Vice President Cheney's shooting of Harry Whittington. This unsigned Department of Justice Memorandum, which was slipped under my door this morning, explains it all:

* * * * *

Under the unitary executive theory of Article II, the President of the United States, as Commander-in-Chief, has inherent authority to shoot anyone he likes, and he may surely delegate that authority to his second in command, the Vice President of the United States. Indeed, to the extent that federal law or state tort law is to the contrary, we must read all such laws in harmony with the inherent powers of the President as head of the unitary executive in order to avoid any potential constitutional conflict. As the President himself noted in his recent signing statement to the McCain Amendment, laws that purport to limit the President's authority to use force in time of war must be construed "in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch and as commander in chief."

The Executive's ability to identify enemy combatants and apprehend or, if necessary, shoot them on the field of battle is fully recognized under the laws of war. There is no doubt that it is fully within the President's powers under the laws of war to identify enemy combatants and apprehend, or if necessary, shoot them in order to prevent them from returning to the battlefield where they may do harm to the interests of the United States. In this case, it is undisputed that Harry Whittington (if that is his *real* name) was carrying arms in close proximity to the Vice President of the United States, and, moreover, in the very same state as the President's Crawford, Texas, residence.

It was therefore completely within the Vice-President's discretion to determine that the said Whittington was an enemy combatant who posed a threat, whether real, potential, imagined or fictitious, to the national security of the United States. Media accounts do not reveal what Harry Whittington's name was before he changed it; it is entirely possible, however, that his real name is Ari Al-Whittington and that he is an Al Qaeda operative, or is associated with groups who are associated with Al Qaeda, or is associated with groups who are associated with groups who are associated with Al Qaeda. And so on.

The objection that Al-Whittington was found on American soil is completely without merit. We are dealing with questions of war, not the criminal or civil process. What so-called "civil libertarians" still don't understand is that 9-11 changed everything. Thousands of people died in the World Trade Center *on American soil.* Discovering Al Qaeda operatives on American soil, or those that executive suspects, whether reasonably or unreasonably, to be Al Qaeda operatives, does not bestow upon such "persons" the "right" to call upon the criminal justice system, much less the civil tort system. We note, moreover, that the President's constitutional obligation in Article II, section 3, to "take care that the laws be faithfully executed" fully supports these conclusions. If the President is constitutionally authorized to execute "laws," a fortiori he is clearly authorized to execute "persons" by shooting them at his discretion.

Nor is the fact that Al-Whittington is a 78 year old businessman who has made substantial contributions to the Republican Party a reason to doubt the Vice-President's plenary determination that Al-Whittington may have links to Al Qaeda, or links to links to links to Al Qaeda. After all, if Al Qaeda wished to infiltrate the Executive branch it would be entirely logical to plant operatives posing as Republican businessmen who gave money to Republican causes because everyone knows that in this Administration the best way to gain access to Administration officials is to buy your way in. Indeed, precisely because money buys access in this Administration, the more money a businessman gives, the more justified the suspicion that the businessman is in fact in league with Al Qaeda, groups associated with Al Qaeda, groups associated with groups associated with Al Qaeda, and so on. The Vice-President's determination, whether reasonable, unreasonable, or completely under the influence of drugs, is therefore plenary and unreviewable, as is made clear by the text of the Constitution, which fails to say anything to the contrary.

Finally, even if one doubts the inherent authority of the unitary executive to identify and shoot persons like Al-Whittington, the September 18th, 2001 Authorization for the Use of Military Force (hereinafter "AUMF") clearly gives the President authority "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." This authorization clearly includes persons like Al-Whittington, since the letters in the authorization can be rearranged to spell "Al-Whittington," not to mention "Al-Gore." (But we digress). Such Congressional authorization clearly trumps any federal or state law to the contrary, and all state or federal laws which may be passed in the future. In particular, the AUMF clearly obviates the need for Vice President Cheney to have purchased a hunting license from the State of Texas.

In sum, because of the President's inherent authority to supervise and direct the Unitary Executive Branch as Commander-in-Chief under Article II of the Constitution, Vice President Cheney was clearly authorized to shoot Ari Al-Whittington, enemy of the people, under the laws of war. Any suggestions to the contrary show ignorance of the original understanding of the United States Constitution, serve to give our enemies in the Global War on Terror aid and comfort, and in and of themselves constitute grounds for detention as an enemy combatant. We're serious. Don't f*ck with us.

Department of Justice
John Yoo Building
Washington, D.C.


Comments:

JB, you finally get it.
 

I just read this information.

Armstrong has been the eyewitness for what happened, but she just said this:

"Armstrong said she saw Cheney's security detail running toward the scene.
'The first thing that crossed my mind was he had a heart problem,'” she told
The Associated Press."

From:
http://www.msnbc.msn.com/id/11340558/


So she couldn't really know that Whittington snuck up on Cheney or what was
happening before/during the actual incident. She must have been told this by
someone else. Otherwise she wouldn't have wondered why the security detail
was running toward the scene.
 

Prof Balkin:

While you're venting (something I fully support!), do you have any response to Scalia's comment that folks like you who believe in a living constitution are "idiots"?
 

Hugh Hewitt: "An unimpeachable tour-de-force of constitutional law"

PowerlineBlog: "Simply unassailable logic"

NRO: "Sums it all up - Cheney should shoot who, whenever, and wherever he wants"

Mehlman/GOP: Anyone who disagrees with this piece is angry and shrill.
 

I know the White House started it but gun accident jokes are not funny. Especially since it appears that Mr. Whittington has gone into complications at the hospital.
 

We should be congratulating the Vice President for his quick thinking in shooting a potential terrorist.
 

I always love it when someone says, "jokes of kind X aren't funny" because of course they are only saying it because people are laughing. If it really wasn't funny it just wouldn't be funny and you wouldn't need to explain why it wasn't funny.

Yes, yes I know what the commenter really means is that "it is inappropriate to find it funny" but always love the irony involved in insisting something isn't funny when people are laughing.

On a bit more of a serious point surely you don't mean *all* gun accident jokes, or do you have deep problems with Elmer Fud(sp?). I presume your objection is that this is a real person with a real family who is concerned and worried. I agree this is a real concern that should be considered but I just don't think it is relevant here.

If the post had said, "ha ha isn't it really funny that Whittington got shot. boy that sucker deserved it." I would agree with you. However, the joke implies anything but this, is far as I can see the only subject of mockery is the white house so if this joke is too offensive to be told no political jokes are acceptable.

Someone is always going to be the but of a political joke. Lewinsky had a mother who probably was deeply offended by all the jokes, every cheating congressmen has a wife or kids, hell for all we know GW is self-conciouss about his pronunciation. Unless your theory is that just by *touching* on a shooting even when the person shot is not at all the but of the joke it becomes too offensive I don't see any way to diffrentiate this joke from any other political jokes.

Besides I really liked it.
 

If Professor Balkin gets tired of doing real academic work at Yale, I'm sure they could always use another good satirist over at The Daily Show!
 

As a matter of fact, the possibility (just theory, don't panic) of legal presidentially-ordered assassinations of US citizens has been analyzed, both at the government level and during the Alito hearings:

http://www.discourse.net/archives/2006/02/president_claims_power_to_kill_you.html

Once again, reality (very much) exceeds fiction. To survive this, irony is a must.
 

Actually, I thought the shooting 'accident' was part of the larger war on terror. After all, Whittington was a friend, who just happened to give the VP the 'wrong look'.
 

A very serious subject (and having reason to believe I have been a victim of this), I still can't help myself. I'm p****g in my pants.
 

"If Professor Balkin gets tired of doing real academic work at Yale, I'm sure they could always use another good satirist over at"

UTR
 

speaking of funny/offensive jokes:

an evolutionary theory of constitutional practice: natural selection and the second amendment
 

This is all very funny and everything, but you all realize that the entire analysis simply builds on the Clinton Administion DOJ, OLC Opinion that found that Hillary Clinton could not be prosectued for killing Vince Foster, right? As I recall, that was also based on Hillary's Article II powers.
 

BTW, Jack, very good analysis in your interview with Blogometer.
 

Crazy:
President 'Just Fine' With Cheney Explanation

http://www.foxnews.com/story/0,2933,185062,00.html
 

That's funny, but it makes sense these days... So, um, that's scary...
 

Funny, scary, ironic, sarcasm, legal, media, politics...
My site... http://thisjuncture.blogspot.com
Later, Herbert Walker.
 

I thought unitary executive was administrative responsiblity for the actions of the executive branch? Are using it to mean the scope of executive powers?
 

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