let's do the seal team six hypo. president orders st6 to assassinate a political rival bc rival is a threat to national security. possible this is absolutely immune under pres's commander in chief power. if it's not, then it gets presumptive immunity (which may be absolute anyway)
Serious q: Do you think there should be a public authority exception to relevant statutes (e.g., federal murder statute) in case of targeted killing of US citizens? The DoJ has already signed off on that. Because then the main difference in your hypo is who counts as a political rival?
Oh, yes, beyond for sure, but partly by revealing the foreign affairs exceptionalism of prior debate—no rule of law long treated as completely normal tolerable for presidents there, even when it came to killing fellow citizens (not just fellow humans).
If you want to say that there has long existed a state of exception in confined circumstances, along the lines of Mbembe’s necropolitics, I have no disagreement with that. I would argue that this opinion is the motion of the exception swallowing the rule.
Me too, but there is a range of bad things, which are not at all speculative (as you “hypo” is so far), many of which have been treated as normal. That doesn’t make this less bad. It just raises the familiar problems of distinguishing and limiting as well as selecting what to care about when.
Thanks. I pointed to this “hypo” because it was raised repeatedly during oral arguments at the dc circuit and scotus and is helpful in identifying the boundaries of what the Court’s ruling allows.
to me this is like the practical status quo ante of immunity, which was substantial. context is everything. shooting folks on 5th ave is just not a drone strike in a war zone.
