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. 

  1. Background for the revelations about the US government’s assassinations of US citizens
  2. The revelations
  3. Their implications
  4. About the war exception to the Constitution
  5. Oldskpetic was right again where I was wrong
  6. 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:

(6b)  Afterword

Please share your comments by posting below.  Per the FM site’s Comment Policy, please make them brief (250 word max), civil and relevant to this post.  Or email me at fabmaximus at hotmail dot com (note the spam-protected spelling).

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14 thoughts on “Another nail put in the Constitution’s coffin, but we don’t care”

  1. You know that Churchill quote: “The United States invariably does the right thing, after having exhausted every other alternative.” It will probably take a tragic scandal. Getting the Press and the People on board to something this important yet ultimately esoteric is like wrangling cats.
    FM reply: Note that this is a great quote, but only an anecdote. No source.

  2. As I pointed out months ago, the big unanswered question in Dick Cheney’s “deep black” unauthorized and unsupervised and totally unaccountable global assassination program remains whether Cheney authorized the assassination of any American citizens.

    It seems all too likely. JSOC sounds like a neutral acronym, but it’s actually short for Joint Special Operations Command, a code phrase that means U.S. military assassins who travel anywhere in the world and assassinate anyone they want without supervision and without accountability.

    Made up of Navy SEALSs, Army rangers and Delta Force commandos, these assassination teams use laser mics and satellite imagery to zero in on their targets, HALO jump onto targets in radar-absorbent suits, wear gilley suits and strap on silenced sniper rifles to crawl close enough to take out their targets, and, if all else fails, they use silenced subsonic low velocity smooth-bore 9mm pistols (known as “hush puppies”) to murder women and children and old men at close range.

    No accountability. No oversight. No meaningful supervision outside the “deep black” rooms in the Pentagon’s E-Ring where they plot these assassinations.

    As we know from Operation Phoenix in the Vietnam War, lack of accountability typically means that these kinds of operations go rogue and start murdering all sorts of innocent people. The big question isn’t how many innocent people these U.S. assassination teams have murdered, but whether they’ve murdered any terrorists at all — given the 96% mistaken civilian kill rate of UAV drones (96% of the people murdered in drone attacks in Afghanistan are wedding parties or funerals or other innocent bystanders — only 4% of the people killed in U.S. drone attacks are terrorists), it seems likely that similar statistics apply to these unaccountable deep black secret U.S. assassination squad.

    Lack of accountability breeds sloppiness, incompetence, and eventually lawlessness.

    The single biggest danger with the JSOC programs isn’t that more innocent people will get killed — it’s that the JSOC assassination squads will get tired of putting their lives in danger for low pay and go rogue, turning into the most dangerous of the world’s drug dealers and arms smugglers. This has happened time and time again with elite anti-terror squads. The Turkish elite anti-terror squads turned into criminal gangs smuggling arms and became worse terrorists than the people they had formerly chased. The Mexican elite Zeta anti-drug units went rogue and turned into the biggest and most deadly drug cartel in Mexico because they used elite military tactics against their enemies.

    It’s only a matter of time before the U.S. JSOC teams get tired of getting paid $35K per year and go rogue and become the world’s most dangerous arms smugglers and drug dealers. Then we’ll have a real problem.

  3. This and the other recent ‘rulings’ are both sad and scary (referring to the SCOTUS corporate contributions recent ruling and the acceptance of ‘unpersons’ = ‘enemy combantents’ = no Habius Corpus or anything else for that matter).

    It is so sad because (and most Americans’ don’t realise this) the US Constitution has always been a model that just about everyone else in the World aspires to and have so often tried to copy (to greater or lesser sucess). It really is a piece of incredible work and thought and a model for just about anyone, anywhere. Where do you think other countries legislation about equal rights or human rights (such as Australia, it took us until the 60’s) all come from … belated copies of what you have had for a very long time.

    Note, nothing wrong with your Constitution, just the ‘elite’ in the Govt (and business) who have worked very hard to sabotage it and have succeeded … for a while. But US history has had a habit of biting out of control ‘elites’ very badly. Again, it’s up to ordinary Americans to fight for it.

    FM I have long advocated that the US needs a ‘Grand Bargain’ with the old Left and Right (ah lah WW2) to start to get things back together again (a long road but it can be done, unlike a lot of people I’ll never bet against the American people when their backs are to the wall .. and the reserves of talent are literally incredible.) An example (and there are now a lot popping up) is at Antiwar Radio.

    The dialog between Scott Horton, a life long Libertarian, and Mark Ames (of the Exiled) and life long ‘old’ leftie was educative. Podcast here.

    To everyone else: put on your must read/listen list (and contribute). It is a Libertarian site, ie the old US Right. And as an old Leftie I respect these people so highly (wish we had some like them here in Oz), they never compromise their American values, actually they never compromise their human values. And it may be called but they never lose sight of US servicemen and women who, along with the civilian victims, pay the real price of the “mad dreams of the elite” and the true costs of “the long (unlimited?) war”. An example is: an example of what ‘stop loss’, etc has done to ordinary servicemen and women.

    My view that the US is in a declining trendline in many ways (rights, war, economy). But, no trendline carries on forever. There is more to decline for the immediate future, but then counter forces come into play. And if the Russians can come from total collapse and hell in just 15-20 years to something which is reasonable (given their history), then I’d predict no less, actually a heck of lot more, from the US.

    In financial terms I’d short the US for another few years … then ‘long’ it in a big way.

    Humour alert: Heck even Jeremy Clark (Top Gear) admits the US now makes some good cars (finally after a long gap, who remembers that it was the US who invented many car technology breakthoughs?). Though it looks like many of your cop cars are going to be made here in Oz in the future …

  4. Exceedingly disturbing in its echos of the USSR (see for instance “Soviet Use of Assassination and Kidnapping“, CIA, 1964), in that “misbehaving” ex-Soviet citizens overseas were essentially considered fair game. But – even the Soviets realized how embarrassing such actions were and never admitted anything despite being caught pretty much red handed.

  5. JSOC are not all assassins. JSOC teams also have Air Force pararescueman in the 24th Special Tactics Squadron. I mean these guys are the best of the best. The prestige and honor of working as a pararescueman far outweighs the salary, which is much higher than 35,000 a year.
    I think other countries’ super special forces have ‘gone rogue’ because their country is probably horrible, and at the end of the day, our special forces get to come home to a safe place and a wife and a dog and wal- mart. Mexico and Turkey are unsafe and very corrupt especially on the local level.
    FM reply: First, “special forces” are one branch of special ops. Second, who says that all special ops are assassins? It’s a straw man. But too many are. As I’ve said before, reports show that our special operations forces have become more like assassins than elite soldiers. This is similar to the practices of our premier corporations — Whirlpool, GM, banks and investment banks — trashing their hard-won reputations for trifling added profits. When these wars have ended, how will people in America react when told “my son is in special ops”? As Martin van Creveld likes to day, “the sharpest sword will rust when plunged into salt water.” For more on this see “Night Raids, Hidden Detention Centers, the ‘Black Jail’, and the Dogs of War in Afghanistan”.

  6. If the following quote from item 1 were true why did we invade Iraq:

    “… 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 …”

    Since Iraq did not attack us what protective policies were being carried out?

  7. FM, I am compelled to declare my increased respect for you, that you would point out to us two occasions where you had been wrong. I too wish you had been right and Oldskeptic wrong. These are “interesting times” indeed.

  8. FM, you have changed my mind and gotten me reexamining my assumptions in several areas. Your evidence that the Brits did not need to use harsh methods in WWII to get good information from German and Nazi prisoners was particularly compelling.

    That said, I find this a difficult area. “Assassination” is a term misused more often than not. According to Schwartzkopf’s memoir, there was discussion in the Bush I WH during Desert Shield about whether the U.S. could attack Saddam Hussein. Since he was the uniformed C-in-C of the Iraqi army, I thought that even asking the question was laughable since the answer was obvious.

    But who is a legal combatant in the war against the Jihadists, since they don’t wear uniforms? Is a drone bombing an assassination? A manned bombing? Is there a difference? (BTW I’d like to see Mclaren back up his stats). How is an air attack against an army’s command center, whose purpose is to kill enemy leaders, any different from a special ops “throat slitter” attack against the same people?

    The Secret Service would not hesitate to drop a U.S. citizen imminently threatening the life of the President. I think that the reason that people are not “up in arms” about this policy is that they see the logic under the current paradigm of warfare.

    Look, Obama should pick the Criminal Justice model over the War model if he believes we need more Constitutional safeguards. But his split personality on the issue — note how he is backing off the KSM trial decision because of the outcry (Holder of course didn’t help matters by assuring us he’d be found guilty) — is a reflection of the same ambivalence that the populace feels as well.
    FM reply: I love to see cognitive dissonance in action. No matter how many times its explained that these revelations don’t limit themselves to combat — or someone “threatening the President”, that’s the excuse trotted out. In article #4 Glenn Greenwald notes that the one example we have is almost exactly the opposite of your excuse:

    The current controversy has been triggered by the Obama administration’s attempt to kill U.S. citizen Anwar al-Awlaki in Yemen. But al-Awlaki has not been accused (let alone convicted) of trying to attack Americans. Instead, he’s accused of being a so-called “radical cleric” who supports Al Qaeda and now provides “encouragement” to others to engage in attacks — a charge al-Awlaki’s family vehemently denies (al-Awlaki himself is in hiding due to fear that his own Government will assassinate him).

    … From all appearances, al-Awlaki seems to believe that violence by Muslims against the U.S. is justified in retaliation for the violence the U.S. has long brought (and continues to bring) to the Muslim world. But as an American citizen, he has the absolute Constitutional right to express those views and not be punished for them (let alone killed) no matter where he is in the world; it’s far from clear that he has transgressed the advocacy line into violent action.

    Close your eyes, cover your ears, sing “LA LA LA”, and keep your dreams. The rest of us will attempt to carry on without you. I suspect when the truth eventually impinges on your life that you’ll change your tune.

  9. All you can do is accuse me of making “excuses” and ridicule me. I don’t excuse the governments actions, I’m trying to make sense of this. It’s called a “discussion.” Perhaps you’ve heard of it.

    One of the things I don’t understand is why an “All-American Boy” just out of Yemeni prison is safer hiding with the “tribe” in the Yemen countryside then he is in the U.S. all lawyered up.

    Yes, it’s absolutely crazy that our government is targeting innocent-until-proven-guilty citizens. It’s also absolutely crazy that parents encourage their own children to blow themselves up in a crowded disco. How do you suggest we make them stop?

    Thanks for bringing this to our attention. Yes, if we don’t get a handle on this, and quickly, anything is possible and we are headed down a dark path. That said, Dennis Blair is an honorable man and there must be more to this story than an All-American Boy needing his due in court. You don’t try an American fighting with the Wehrmacht, you shoot him. Is he really hiding, or is this just another Jihadist lie? My paradigms are breaking down here.

  10. Hmmm, many questions come to mind:

    On the constitution: Exactly which parts of the constitution give us guidance on where to draw the line between a legal killing of a citizen as an act of war vs. an act in violation of law?
    How does any reading of the constitution allow the killing of a citizen for any reason without due process?

    On historical precedents: Lincoln found assassination in war to be abhorrent by convention, but where is it he found it to be unconstitutional? How did the constitution allow the burning of Atlanta by the Union? Since Confederates were still legally U.S. citizens(as the Union did not accept succession) should any union commander who ordered the killing of a Confederate except in self defense have been prosecuted for violating the constitution? Conversely since the Confederacy abdicated the constitution, and therefore was not bound by it, what stopped them from killing at will whomever they wanted, while the the Union would have been bound by the Constitution to provide due process?( I ignore the fact they adopted their own constitution similar to the U.S. Constition, they didn’t have to they just as well could have adopted one that declared assasinating Yankees a Confederate obligation and just retribution for Union injustices)

    On theoretical analogies: If an American citizen owned a newspaper in Germany in WW2 which advocated for and supported Hitler’s regime, would it be a legitimate target? Would the owner be a legitimate target? Would the airforce have to ensure the owner was not in the building before bombing it in order to not violate his constitutional right to due process? If he was tried in absentia and sentenced to death for treason would dropping a bomb on his head be cruel and unusual punishment?

    On legalities:
    If the person knows he is to be targeted as apparently al-Awlaki does, what stops him from engaging a lawyer, notifying the press, walking into a consul or embassy, declaring himself to be unjustly targeted, demanding his constitutional rights and persueing those rights in U.S. courts?
    FM reply: The same nonsense repeated over and over. Hence my guess that this is some sort of defense mechanism to prevent these people from recognizing what’s happned to America. There is nothing in these revelations limiting the government to conventional acts of war — like bombing. The US was at war with the Confederacy, as we were with Germany. Since we have a real case, your “theoretical analogies” are just chaff tossed into the debate to conceal the facts.

  11. FM said: “your “theoretical analogies” are just chaff tossed into the debate to conceal the facts.

    How about the last one, very pertinant to the real case. If we are to be a nation of laws including the Constitution then we must be willing to exercise our rights, through the apparatus created in the Constitution starting with the citizen who believes he is unjustly targeted.

    Part of the problem is, during war where does an act of war end and assassination begin? I would argue the only bright line (though not the only line)is at the point where the individuals or an individual is under any form of physical or governmental custody or protection of the state or where the state could provide some form of protection if asked for. Most of Yemen doesn’t qualify. Most of the countries and places in the world qualify. All of Iraq would now qualify.

    I don’t think the means of death has anything to do with it. And clearly our history has precedents for the killing of U.S. civilians in times of war by numerous means without due process, as well as the targeting of individuals.

    As to weather we are at war, in some of these places such as Yemen, well thats too long a debate for blog comment, and something you did not address in this article, though you may have addressesed it in referenced ones.
    FM reply: You go on and on about the battlefield, Yemen, etc. None of that is mentioned in the government’s statements, nor is it esp relevant to this discussion.

    (2) {About someone on the government’s kill list going public} “If we are to be a nation of laws including the Constitution then we must be willing to exercise our rights”

    That is one of the dumbest things I’ve read in a long time. Our government announces the name of a US citizen it seeks to kill. And it’s his job to risk death to exercise his rights? And what’s this “we”? Do you plan on escorting him? You’re too much. Whatever, dude.

    (3) “clearly our history has precedents for the killing of U.S. civilians in times of war by numerous means without due process, as well as the targeting of individuals.”

    Citations? Examples? Please don’t trot out the “killed on the battlefield” nonsense again.

  12. What has to be understood is HOW this happens and why giving too much power or resources to the national security apparatus (police, FBI, ‘intelligence’ orgs, etc) -NS for short- will always end in tears for everyone.

    Fundamentally you have to understand 4 key factors:
    (1) Parkinsons Law
    (2) The Stanford experiment
    (3) The Milgram experiments
    (4) The ‘banality of evil’.

    (1) Parkinson’s Law: “Work expands so as to fill the time available for its completion”.

    This is an iron law of bureaucracy (public and private). Give them more resources then they will always be busy. Give the NS more resources (and it seems unlimited these days) to find ‘terrorists’, then if they can’t find genuine ones … they will create them. False flag operations, agent provocateurs, outright lies. The worst is the creeping definition of terrorist: eco-terrorist, anti- animal experiment terrorist .. and so on. To justify the money spent on them and huge numbers of staff then what would you do?

    “We’ve done a lot of investigations and there is a small terrorist threat which we can deal with 10% of current staff”.
    Yeh right. The US TSA is a perfect example, what is the current watch list now? About a million the last I read (including the famous 2 years old who is still on it and is now 8) and adding tens of thousands a month. Eventually everyone in the US will be one the list, I bet they fantasise about everyone in the World. Plus the prospect of more staff, more equipment, more money. Heck, give it a while and every 1 year old will added to the list.

    I’ve added a corollary to this: “National security services expand their operations to the limit (and often a quite bit beyond) the power given to them”.

    The FBI is the classic example, illegally bugging thousands of people especially including journalists based on ‘terrorist threats’ just after 9/11. The current “kill Americans” rule is just a classic form of bureaucratic ‘creep’. Eventually this will extend to killing Americans within the US. Watch out, that shadow over you will be a Predator drone in a few years.

    (2) & (3) These experiments showed under experimental conditions that humans will do the most horrible things to each if they have unlimited power and/or ordered to it by some ‘authority’.

    (4) The Banality of Evil. The person who orders the ‘hit’, the torturer, the assassin, etc. They go home as all normal people do. They are quite probably family people, loving parents, church goers, nice people. Just their day job means waterboarding someone 200 times. Or sitting at a screen and firing a hellfire missile that kills 20 children. To be fair the closer you are to the actual action tends to create some internal friction (which is one reason why soldiers suffer so much). But authority, or some nonsense propaganda, will usually work.

    The sad fact is that throughout human history finding killers, torturers, etc is easy. Hitler never found any lack of supply of them, nor did Stalin, or Pol Pot. As for the US, stats show 60% of people will torture someone to death, even if they are right in front of them screaming to death. 300 million population = 180 million torturers to death. Plus 90%+ will torture to just before death. ‘Normal’ humans will kill, torture, rape, etc at a drop of a hat. Abu Grahab was the classic example, no problem in turning ordinary GI’s into torturers (and murderers). Even without official (and they got it) prodding, people will do it naturally if they have unlimited power over other people (Stanford example).

    Plus like all bureaucracies the NS ones never like to admit they have made a mistake. They are driven by the number of convictions or detainees, even if they know someone is innocent they don’t want to admit that and reduce their performance statistics. Not a good look if they boast 100 ‘terrorist’ found and detained … and 95 get set free. Therefore avoiding any sort of independent (ie court) revue or making up evidence becomes the norm. Examples of this can be found in this podcast with Andy Worthington. Absurd cases, some of which have made it to court, in all of which the US people knew the guy was innocent, such as they guy who was tortured by the Taliban … and then detained by the US!

    But they don’t care, as it makes the stats look good … just like the “20 insurgents killed by a Predator” reports you get …. (I always translate this to: “10% chance of 1, 40 innocents dead, 100 injured, 500 friends and family that now hate the US’s guts). Some may care at first but brutalisation (or just plain indifference) doesn’t take long to set in. Some of course get the guilts after the event and they return to normal society. Some even have the courage to do something about it, sadly far to few.
    FM reply: This would make a good post if the references were added. Which would be easy (although taking some time), as there are so many. The famous experiments getting lab subjects to apply powerful electric shocks to other people. The various books about the normal people doing horrible things during the Thrid Reich. I wonder how many people know about this dark side of normal people?

  13. Yep, adding the links does take time. But at the same time it is good for people to do their own research, after all they might come to totally different conclusions over the same data (though in these cases I can’t imagine how).

    For Milgram (after Wikipedia) you can’t go past this ABC (Australian Broadcasting Corporation) podcast at:

    Note the scary comments at the end, talking about the UNPUBLISHED research results. Family members torturing each other!

    That’s why we have laws and societal rules, to keep the ‘dark side’ under control. But it can disappear rapidly under the right circumstances. Once saw a nice respectable couple steal food off a pensioner in broad daylight in a supermarket (truck driver strike in the UK and the shops were getting low and panic set in). Intervening equalled a fight … which they lost.

    Banality of evil indeed.

    On a lighter note, Parkinson is one of my favourites (though with a hard edge of truth). Got all his books. His “colour of the bicyle shed” argument is both funny and true. I am repeatedly constantly amazed just how clueless nearly all senior management (public or private) really is. Now I’ve been around the Govt/corporate scene for more decades than I can remember. I can think of only half a dozen good managers and 2 good CEO’s (one was excellent).

    The rest ranged from very average to downright incompetent (sadly the majority I’ve come across).

    But when you get into the police/security/’intelligence’/defence areas .. now that’s where people seem to make a fetish out of incompetence (and don’t get me started about finance). Now as always there are good/great individuals but the systems are so set in their ways that, at best, they manage to change things temporarily (or just hold the line for a while) .. but then it goes back to ‘normal’.

    The classic example is the USAF. Crap fighter planes in WW2 except the ‘accident’ the Mustang (which they didn’t want at first), couple of a good jets early on, then rubbish after that (the F-105 .. shudder). Then Boyd and the ‘fighter Mafia’ got some very good stuff through (the famous teen series) basically by sacrificing their careers. Now they’re back to expensive boondangles (the F-22) and rubbish (the F-35). The system reasserted itself.

    Now they are into UAV’s in a big way (as is everyone else) and daft talk of hypersonic planes.

    Technical note: UAV’s only work when you are against a vastly technologically inferior enemey. Great for taking out wedding parties. But a WW2 Spitfire would shoot them down. They are so slow and vulnerable that if you had the air defence systems that the UK had in the Battle of Britain they’d be obliterated.

    As for ‘intelligence’. Read RV Jones book “Most Secret War” (I met the guy once, a friend of my father) and how after the most amazing successes during the war … the system went straight back to its usual level of mind boggling stupidity after that.

    I’ve used the the term ‘the letters’ before to summarise thme all (FBI/CIA/MI5/SIS/ASIO/TSA/ …..) but take them all together them just spell one word …. INCOMPETENCE.

    But again this is simple human nature and how it applies to organisations. To make any of them successful you must:

    (1) Keep them lean and mean.
    (2) Open and transparent and accountable.
    (3) With limited authority, with tough approval processes in place when they need extra authority.
    (4) Small.
    (5) Tightly focused on a clear aim(s).
    (6) Externally set results measured.

    Sadly, none of these apply to current security/defence/etc (or many other) organisations. So the (non/useless) results are totally predictable.

    On the plane side, interesting to watch how lack of money has meant that Russia is now building far better planes than the West. Bit like the famous ‘Skunk Works’ in its hayday. Limited resouces = creativity. While unlimited resources = boondangles.

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