Another nail put in the Constitution’s coffin, but we don’t care
Summary: Americans expressed horror at the thought of “death panels.” Now the government reveals that the President issues death warrants on American citizens – without even a hearing before a panel. That’s just fine with us. Each and every one of us. Do you see any protests? Marches, demonstrations? None. On 4 July 2006 I posts Forecast: Death of the American Constitution. Since then, nail by nail, our ruling elites close the coffin on the Constitution — and on our liberties. I suspect that our children will not understand how we allowed this to happen, and will curse our passivity.
- Background for the revelations about the US government’s assassinations of US citizens
- The revelations
- Their implications
- About the war exception to the Constitution
- Oldskpetic was right again where I was wrong
- For more information from the FM site, and an Afterword
(1) Background for the revelations about the US government’s assasinations of US citizens
These revelations IMO are best seen as a process, the gradual erosion of our freedoms. Each step is leaked in stages, so that the final announcement is an anti-climax. But still cloaked by lies — such as, in this case, that the government means only battlefield killings. While that was the context for this announcement, these officials were clear that these killings were not limited to combat conditions.
I provide this detailed information because these issues quickly become fogged by deliberate lies. That’s how debates run in 21st century America. In this respect the Internet appears to fog our information flow, not help it.
(2) The revelations
The revelation started with this, a classic case of “burying the lede”. I suspect that to be a deliberate leak, part of the long post-9-11 process of conditioning America to the gradual loss of our liberty. Excerpt from ”U.S. military teams, intelligence deeply involved in aiding Yemen on strikes“, Dana Priest, Washington Post, 27 January 2010 — These paragraphs were at the end of the story:
After the Sept. 11 attacks, Bush gave the CIA, and later the military, authority to kill U.S. citizens abroad if strong evidence existed that an American was involved in organizing or carrying out terrorist actions against the United States or U.S. interests, military and intelligence officials said. The evidence has to meet a certain, defined threshold. The person, for instance, has to pose “a continuing and imminent threat to U.S. persons and interests,” said one former intelligence official.
The Obama administration has adopted the same stance. If a U.S. citizen joins al-Qaeda, “it doesn’t really change anything from the standpoint of whether we can target them,” a senior administration official said. “They are then part of the enemy.”
Both the CIA and the JSOC maintain lists of individuals, called “High Value Targets” and “High Value Individuals,” whom they seek to kill or capture. The JSOC list includes three Americans, including Aulaqi, whose name was added late last year. As of several months ago, the CIA list included three U.S. citizens, and an intelligence official said that Aulaqi’s name has now been added.
Intelligence officials say the New Mexico-born imam also has been linked to the Army psychiatrist who is accused of killing 12 soldiers and a civilian at Fort Hood, Tex., although his communications with Maj. Nidal M. Hasan were largely academic in nature. Authorities say that Aulaqi is the most important native, English-speaking al-Qaeda figure and that he was in contact with the Nigerian accused of attempting to bomb a U.S. airliner on Christmas Day.
More details emerged on February 3 in the Q&A following Dennis C. Blair’s (Director of National Intelligence) “Annual Threat Assessment of the US Intelligence Community for the House Permanent Select Committee on Intelligence” (prepared presentation is here). I don’t have access to the transcript, so here is the story pieced together using quotes from the Washington Times and Washington Post — taking the journalists’ muddle and rearranging it into a coherent sequence. From “‘Permission’ needed to kill U.S. terrorists“, Washington Times, 4 February 2010:
Rep. Peter Hoekstra, Michigan Republican and ranking member of the House intelligence committee, asked Mr. Blair about the policy of targeting American citizens at a hearing. It was the first time there was public discussion about one of the most sensitive U.S. counterterrorism policies.
Director of National Intelligence Dennis C. Blair said in each case a decision to use lethal force against a U.S. citizen must get special permission. “We take direct actions against terrorists in the intelligence community … If we think that direct action will involve killing an American, we get specific permission to do that.” He also said there are criteria that must be met to authorize the killing of a U.S. citizen that include “whether that American is involved in a group that is trying to attack us, whether that American is a threat to other Americans. Those are the factors involved.”
Mr. Blair responded that he would rather not discuss the details of this criteria in open session, but he assured: “We don’t target people for free speech. We target them for taking action that threatens Americans or has resulted in it. … The reason I went this far in open session is I just don’t want other Americans who are watching to think that we are careless about endangering … lives at all. But we especially are not careless about endangering American lives, as we try to carry out the policies to protect most of the country and I think we ought to go into details in closed session.”
Excerpt from “Intelligence chief acknowledges U.S. may target Americans involved in terrorism“, Washington Post, 4 February 2010:
“Blair told members of the House intelligence committee that he was speaking publicly about the issue to reassure Americans that intelligence agencies and the Department of Defense “follow a set of defined policy and legal procedures that are very carefully observed” in the use of lethal force against U.S.”
The horrifying aspect of this is not that our government does such things. The clear evolution of government policy since 9-11 made this almost inevitable. IMO the sad part is our complicity in it, through passivity. Each step stripping us of our freedoms is small, greeted with indifference. Such as these delusional fools, from Matthew Yglesias’ post.
Ed Marshall Says: “This is not talking about assassinating Americans domestically. It’s talking about Yemen and the case where an American born Al-Queda member got killed in a drone strike.”
J.W. Hamner Says: “… So if an American citizen joined our enemy forces in a war, we’d have to give them due process on the battlefield? That sounds complicated.”
Nothing in Blair’s statement says or implies that they limit US assassination programs to killing on “the battlefield.” Nor was the drone attack in Yeman a battlefield in any meaningful sense.
(3) The implications
Glenn Greenwald provides context for this announcement in “Presidential assassinations of U.S. citizens“, Salon, 27 January 2010 — Excerpt:
Just think about this for a minute. Barack Obama, like George Bush before him, has claimed the authority to order American citizens murdered based solely on the unverified, uncharged, unchecked claim that they are associated with Terrorism and pose “a continuing and imminent threat to U.S. persons and interests.” They’re entitled to no charges, no trial, no ability to contest the accusations. Amazingly, the Bush administration’s policy of merely imprisoning foreign nationals (along with a couple of American citizens) without charges — based solely on the President’s claim that they were Terrorists — produced intense controversy for years. That, one will recall, was a grave assault on the Constitution. Shouldn’t Obama’s policy of ordering American citizens assassinated without any due process or checks of any kind — not imprisoned, but killed — produce at least as much controversy?
Obviously, if U.S. forces are fighting on an actual battlefield, then they (like everyone else) have the right to kill combatants actively fighting against them, including American citizens. That’s just the essence of war. That’s why it’s permissible to kill a combatant engaged on a real battlefield in a war zone but not, say, torture them once they’re captured and helplessly detained. But combat is not what we’re talking about here. The people on this “hit list” are likely to be killed while at home, sleeping in their bed, driving in a car with friends or family, or engaged in a whole array of other activities. More critically still, the Obama administration — like the Bush administration before it — defines the “battlefield” as the entire world. So the President claims the power to order U.S. citizens killed anywhere in the world, while engaged even in the most benign activities carried out far away from any actual battlefield, based solely on his say-so and with no judicial oversight or other checks. That’s quite a power for an American President to claim for himself.
As we well know from the last 8 years, the authoritarians among us in both parties will, by definition, reflexively justify this conduct by insisting that the assassination targets are Terrorists and therefore deserve death. What they actually mean, however, is that the U.S. Government has accused them of being Terrorists, which (except in the mind of an authoritarian) is not the same thing as being a Terrorist. Numerous Guantanamo detainees accused by the U.S. Government of being Terrorists have turned out to be completely innocent, and the vast majority of federal judges who provided habeas review to detainees have found an almost complete lack of evidence to justify the accusations against them, and thus ordered them released. That includes scores of detainees held while the U.S. Government insisted that only the “Worst of the Worst” remained at the camp.
No evidence should be required for rational people to avoid assuming that Government accusations are inherently true, but for those do need it, there is a mountain of evidence proving that. And in this case, Anwar Aulaqi — who, despite his name and religion, is every bit as much of an American citizen as Scott Brown and his daughters are — has a family who vigorously denies that he is a Terrorist and is “pleading” with the U.S. Government not to murder their American son …
Who knows what the truth is here? That’s why we have what are called ”trials” — or at least some process — before we assume that government accusations are true and then mete out punishment accordingly. As Marcy Wheeler notes, the U.S. Government has not only repeatedly made false accusations of Terrorism against foreign nationals in the past, but against U.S. citizens as well. She observes: ”I guess the tenuousness of those ties don’t really matter, when the President can dial up the assassination of an American citizen.” A 1981 Executive Order signed by Ronald Reagan provides: ”No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” Before the Geneva Conventions were first enacted, Abraham Lincoln — in the middle of the Civil War — directed Francis Lieber to articulate rules of conduct for war, and those were then incorporated into General Order 100, signed by Lincoln in April, 1863. Here is part of what it provided, in Section IX, entitled “Assassinations”:
The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such intentional outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation, made by whatever authority. Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism.
Can anyone remotely reconcile that righteous proclamation with what the Obama administration is doing? And more generally, what legal basis exists for the President to unilaterally compile hit lists of American citizens he wants to be killed?
What’s most striking of all is that it was recently revealed that, in Afghanistan, the U.S. had compiled a “hit list” of Afghan citizens it suspects of being drug traffickers or somehow associated with the Taliban, in order to target them for assassination. When that hit list was revealed, Afghan officials “fiercely” objected on the ground that it violates due process and undermines the rule of law to murder people without trials:
Gen. Mohammad Daud Daud, Afghanistan’s deputy interior minister for counternarcotics efforts, praised U.S. and British special forces for their help recently in destroying drug labs and stashes of opium. But he said he worried that foreign troops would now act on their own to kill suspected drug lords, based on secret evidence, instead of handing them over for trial. “They should respect our law, our constitution and our legal codes,” Daud said. “We have a commitment to arrest these people on our own” . . . . Ali Ahmad Jalali, a former Afghan interior minister, said that he had long urged the Pentagon and its NATO allies to crack down on drug smugglers and suppliers, and that he was glad that the military alliance had finally agreed to provide operational support for Afghan counternarcotics agents. But he said foreign troops needed to avoid the temptation to hunt down and kill traffickers on their own.
“There is a constitutional problem here. A person is innocent unless proven guilty,” he said. “If you go off to kill or capture them, how do you prove that they are really guilty in terms of legal process?” . . .
So we’re in Afghanistan to teach them about democracy, the rule of law, and basic precepts of Western justice. Meanwhile, Afghan officials vehemently object to the lawless, due-process-free assassination “hit list” of their citizens based on the unchecked say-so of the U.S. Government, and have to lecture us on the rule of law and Constitutional constraints. By stark contrast, our own Government, our media and our citizenry appear to find nothing wrong whatsoever with lawless assassinations aimed at our own citizens.
UPDATE: In comments, sysprog documents the numerous countries condemned in 2009 by the U.S. State Department for “extra-judicial killings.” …
(4) About the war exception to the Constitution
rom Glenn Greenwald’s follow-up on this: “On the claimed ‘war exception’ to the Constitution“, 4 February 2010 — Please read this in its entirety. Excerpt:
Although Blair emphasized that it requires “special permission” before an American citizen can be placed on the assassination list, consider from whom that “permission” is obtained: the President, or someone else under his authority within the Executive Branch. There are no outside checks or limits at all on how these “factors” are weighed. In last week’s post, I wrote about all the reasons why it’s so dangerous — as well as both legally and Consitutionally dubious — to allow the President to kill American citizens not on an active battlefield during combat, but while they are sleeping, sitting with their families in their home, walking on the street, etc. That’s basically giving the President the power to impose death sentences on his own citizens without any charges or trial. Who could possibly support that?
… Here we are, almost 4 years later with a new party in power, and the President’s top intelligence official announces — without any real controversy — that the President claims the power to assassinate American citizens with no charges, no trials, no judicial oversight of any kind. The claimed power isn’t “inherent” — it’s based on alleged Congressional approval — but it’s safeguard-free and due-process-free just the same. As Gore asked of less severe policies in 2006, if the President can do that, “then what can’t he do?” As long as we stay petrified of the Terrorists and wholly submissive whenever the word “war” is uttered, the answer will continue to be: “nothing.” We’ll have Presidents now and then who are marginally more restrained than others — as the current President is marginally more restrained than the prior one — but what Lithwick calls our “willingness to suspend basic protections and become more contemptuous of American traditions and institutions” will continue unabated.
A nice summary from Atrios at Eschaton, 2 February 2010:
… at some point it became clear that the consensus of official Washington, including many Democrats, the scribblers at Kaplan Test Prep Daily, the Great Minds at Very Serious Think Tanks, and guests at Sally Quinn’s table dancing parties, is that torture is awesome, the rule of law only applies to Al Gore, Bill Clinton’s penis, and all people who don’t have important DC jobs, and all it takes to nullify the constitution is to call someone a terrorist. I don’t know how to change this, and electing the Hopey Changey guy didn’t help much. I think they’re playing Calvinball a bit more fairly, but they’re still playing it.
(5) Oldskpetic was right again where I was wrong
In December Oldskeptic posted two prescient comments about America’s fading freedoms (here and here), which I said were exaggerated. Even nutty. I wish I was correct. Unfortunately I was wrong and he was right.
As he was about America’s low degree of social mobility, which I confessed in A sad picture of America, but important for us to understand. Perhaps he sees America more clearly from Australia than we do from ground zero.
(6a) For more information from the FM site
To read other articles about these things, see the FM reference page on the right side menu bar. Including About the FM website page. Of esp relevance to this topic:
Posts about the Constitution:
- Forecast: Death of the American Constitution, 4 July 2006
- The Constitution: wonderful, if we can keep it, 15 February 2008
- Congress shows us how our new government works, 14 April 2008
- See the last glimmers of the Constitution’s life…, 27 June 2008
- Remembering what we have lost… thoughts while looking at the embers of the Constitution, 29 June 2008
- A report card for the Republic: are we still capable of self-government?, 3 July 2008
- Another step away from our Constitutional system, with applause, 19 September 2008
- What comes after the Constitution? Can we see the outlines of the “Mark 3″ version?, 10 November 2008
- Are Americans still willing to bear the burden of self-government?, 27 March 2009
- “Lights, Camera, Democracy” by Lewis Lapham, 24 May 2009
- “The Constitution that I interpret and apply is not living, but dead.” – Supreme Court Justice Scalia, 9 June 2009
- More about the tottering structure of the American political regime, 17 August 2009
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