Life and Death Powers

(c) 2012 Earl L. Haehl Permission is given to use this article in whole as long as credit is given. Book rights are reserved.

In the past few days, the Attorney General has affirmed the President’s power to make the decision to eliminate or neutralize those who present a threat to the security of the nation. This was before congress and published in the Washington Post. I was disturbed by this—I was also disturbed when we started using the term “enemy combatants” for foreign nationals picked up on the battlefield and the expansion of powers under the USA PATRIOT Act and the Homeland Security Department’s assumption of powers. But back to the AG who was reported by the Post as follows:


Now Mr Holder talked specifically about Mr Awlaki. Upon order of the President an attack drone was sent to take him out. Mr Holder said that the Fifth Amendment’s requirement of due process was satisfied by the President’s review of the facts to determine guilt and punishment in a capital case. Let us examine these assertions. GEORGIVS TERTIVS REX, a gentleman ruling by semi-devine right and eager to suppress a violent insurrection, did not publicly proclaim the right to put out a hit. Parliament held power to issue letters of marque and reprisal as does the United States Congress.

So what does the Constitution of the United States say about this? The Fifth Amendment, to which Mr Holder pays lip service, reads as follows:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The question is whether there an exception for time of War or public danger. The answer is that this applies to the land or Naval forces or the Militia when in actual service.  Mr Awlaki does not fit those categories.

This Assertion of power was extended by the testimony of General Dempsey and Secretary Panetta over the President’s legal authority to engage in military actions.  Mr Panetta basically reiterated what the President said about the Libyan excursion, that is that when there is a coalition our authority derives from the other nations involved.  Mr Panetta asserted the executive authority to make all decisions regarding defense.


So this goes back to examples where President Polk sent Maj Gen Zachary Taylor to Texas to expel Mexican troops from the area between the Nueces and Rio Grande rivers.  That was within his authority.   When Taylor crossed the Rio Grande (sort of  like Gaius Julius on the Rubicon) we were at war and Polk dispatched Winfield Scott to take over what Taylor stumbled into.  He obtained a retroactive declaration of war after acquiring New Mexico. Arizona, Utah, Nevada and (unfortunately) California as well as parts of Colorado and Wyoming.   While President McKinley waited for Congress and thought war with Spain was stupid, his Assistant Secretary of the Navy had dispatched Dewey’s fleet to Manila.  And so it goes through Theodore Roosevelt, Wilson (his actions against Mexico), Kennedy, Johnson etc. 

But the founders did not value governmental efficiency.  They deliberately made it difficult to go to war.  They deliberately gave the executive few powers. 

But there is one thing to remember.  “All power is temporary, save that which created the cosmos.” – J.F. Macarthur


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