I thought this post, originally published on May 12, had vanished down the memory hole when Blogger crashed last week. But in looking through my Drafts folder (after having read the Blogger.com Admins' reports that the bug was fixed), I found a working copy of the post floating there in limbo, as it were. I am posting it now, although it is a little bit out of date, mainly so my readers can read the brilliant analysis of the DUer named SoDesuka.
I'd like to copy a post on Democratic Underground that I think brilliantly lays out the position that Obama seriously undermined the rule of law in having Osama bin Laden summarily executed.
This is by a poster on DU who goes by the name of 'SoDesuka'
A Fatwa Is Not a Declaration of War
Calling a fatwa a declaration of war is a silly argument. An organization of civilians is not a state; the most they can be is a gang . . . .
Only a state can declare war. Osama bin Laden is the lead criminal in a gang of criminals, not a head of state. If you want to proceed lawfully against bin Laden, you can't change his status to that of a soldier; you have to respect the fact that regardless of his own statements he remains a civilian.
The Bush administration made it plain that they were not going to be constrained by legality except if they chose to do so. For example, waterboarding is illegal; has always been illegal; and it can't be made legal because of novel theories. Similarly, novel theories can't change what is and what is not a war.
Neither Obama nor Bush has the right to decide which laws they'll obey depending on whether they can get somebody like John Yoo to develop a novel theory to support what they're planning. I hope you can see how dangerous it is to allow executives to make it up as they go along. Bush was notorious for that; and now, unfortunately, Obama is following his bad example.
We can't have government just winging it; there have to be constraints. In another post I compared Obama to Nixon, who also believed in winging it. Hit squads operate outside the law; and there's no accountability. Nixon started the "plumbers" unit to plug leaks of government secrets; but that led to his use of this gang to commit ordinary felonies. Nixon later claimed that whatever the president does is legal.
Do we really want to go down that road - allowing the executive to get away with whatever he feels like so long as his lawyers come up with some novel theory? It's not about whether Osama bin Laden deserves capital punishment; it's about whether the president has the authority to order commandos to kill criminals on his say-so alone. No, he doesn't.
All I can say is 'Wow.'