an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The invaluable Dana Priest has an article in today's Wasington Post, "Experts See a Strategy Behind CIA Shuffle: General May Help Intelligence Chief Rein In Rumsfeld and His Military Spy Plans."
The most intriguing paragraph is the following:
Managed by Army Lt. Gen. William G. "Jerry" Boykin, a legendary special operations officer [who is also well known for being the most hard-core Christian zealot in the Pentagon] who now holds the title of deputy undersecretary of defense for intelligence and warfighting support, the Pentagon is demanding that the CIA share its most sensitive databases, that small teams of undercover soldiers be allowed to secretly collect information in friendly countries, and that clandestine teams of military man-hunters be allowed to sneak into countries with which the United States is not at war to kill or capture terrorism suspects.
So my questions are as follows: 1) Isn't the proper name for the "clandestine teams" "death squads" (at least if indeed they "kill . . . terrorism suspects"). 2) What, precisely, prevents the Bush Administration from bringing such squads into the US? There are, presumably, two answers, one involving statutes, the other involving the Constitution (something about due process of law). But this is a President who believes that statutes simply do not apply when they limit his powers as "commander-in-chief" of the "global war on terrorists" (and global, of course, includes the US). And, of course, this is a President who reads Article II, including the C-in-C Clause, in a way that overrides any finicky concern for due process and the like where those deemed (by the President and those to whom he has delegated his powers under Article II) "terrorist suspects." Perhaps Jose Padilla should consider himself lucky to be merely detained at O'Hare and then put into solitary, with no ascertainable rights, for a number of years. After all, the same logic would presumably have justified killing him if the Administration thought that desirable. 3. If they are "captured" instead of killed, where are they sent, and by what means? Are we to believe that they would simply be turned over to the intelligence services of the friendly countries within which these operations are taking place? But this would, among other things, presuppose that these countries thought the operation of US death squads was a fine idea. So are they spirited out and sent to CIA camps for interrogation? But what happens after interrogation? It would be very dangerous to let them go if a mistake had been made, wouldn't it, lest the existence of these programs be confirmed (beyond the paragraph in Priest's article).
I hope that this is simply a paranoid posting, since surely the US would not tolerate a President who would even think of turning us into an up-market version of Argentina, Chile, and El Salvador and their own domestic "disappearances" and "death squads." But where is the public debate about our foreign death squads? Will Democrats continue to be so cowed that they will refuse to challenge this latest foray into fascist-style tactics by Rumsfeld and Boykin lest they be charged by the raging bull Karl Rove as "soft on national security" as we enter into the 2006 elections that Rove is determined to win by any means necessary. And if the operation of foreign death squads is tolerated, then why not in the US? Especially, I might add, if the suspect is an alien, legal or otherwise, since so much of the debate about Padilla turns on the fact that he is, after all, a US citizen (and therefore should have at least some rights that the state is bound to respect)? Posted
by Sandy Levinson [link]
since surely the US would not tolerate a President who would even think of turning us into an up-market version of Argentina, Chile, and El Salvador and their own domestic "disappearances" and "death squads."
Alas, I think that a majority of Americans would approve of "killing terrorists in foreign countries," which is how it would be framed. Cf. the remarkably successful Republican spin on the NSA's spying on American citizens within the U.S.
’I hope that this is simply a paranoid posting, […]’
Anybody heard of one John Yoo? Anybody think that his memos at the Department of Justice have any connection with what happened/happens at Abu Graib, Guantanamo and the whole “unitary executive” doctrine that presides these days?
If you’ve answered affirmatively to both questions, please recall what was said in this September 12, 2005, Wall Street Journal front-page piece (“Young Lawyer proposes assassinating more suspected terrorists”):
‘Some of those memos have become public, but not all of them. Asked after his AEI talk whether there is a classified Justice Department opinion justifying assassinations, Mr. Yoo hinted that he'd written one himself. "You would think they — the administration — would have had an opinion about it, given all the other opinions, wouldn't you?" he said, adding, "And you know who would have done the work."
The *theory* is summarized by its author in a September 18, 2005 San Francisco Chronicle op-ed (“Assassination or war?”):
You raise valid points. There is though a much more likely explanation (spin?). If America knows that in Iran close the Iran/Iraq border, there are IED manufacturors who build their weapons, drive over the Iran/Iraq border to deliver them, then drive back to the safe haven of Iran. Would it not be appropriate to send in a special forces team to kill them?
I believe that is the main thrust of that line from the Post's article. Granted, that line from the article is ambiguous and could be used as support for your position, but you do think you are needlessly overreacting (at least in this case).
1. The Federal Government is empowered to repress domestic rebellions.
2. Assassination of enemy military leaders is permitted under the laws of war.
3. The President is commander in chief of the Armed Forces in time of war
4. Under the Constitution, the President is empowered to order the assassination of rebel leaders in the event of civil war.
Nor is tehre any US law forbidding the Uuse of assassuination by US military forces in furtherance of their lawful military objectives. There is the Ford executive order forbidding the US government from engaging in assassination, but presumably a specific order from a subsequent President would supersede the Ford order.
So the bottom line: could death squads be used lawfully against domestic enemies of the government? Of course? Have they been so used? Since as far as I know the fate of some of the captured German WWII sabateurs has never been released (somethign I just learned from Nachester's 1970's US history), it is not unlikely.