Code red! The Constitution is burning.

Summary:  On 4 July 2006 this website forecast the death of the Constitution.  Depending on the verdict of our Courts and the success of our assassins, future historians might say the second American republic died this year.  You’ll miss the Constitution when it’s dead (most of you).  Not tomorrow, or next year.  But eventually.  How will you explain this time to your children or grandchildren?


  1. What’s at stake
  2. Excerpt from the motion to the Court
  3. How did we get to this point?
  4. Other posts about our Constitution
  5. Afterword and contact information

(1)  What’s at stake

The events since 9/11 may have provided the spark to burn the dry remnants of our Constitution (if so, 9/11 may have been the most effective single military operation in the history of the world).   Since we’ve seen a series of events, each more astonishing and unprecedented than the previous.  Now Obama — called a radical leftist by deranged Republicans — sends his lawyers into Court into extending Bush Jr’s assumption of powers to its logical conclusion, arguing that …

  • the Executive branch can condemn to death and execute a US citizen without prosecution or trial, without public notice, and
  • a Citizen’s right to legal representation depends on the approval of government officials, who can deny it without explanation or appeal.

There are no extraordinary circumstances here.  No ticking bomb.  No killing on the battlefield, by him or us.  Our government asserts the right to condemn and execute citizens as it sees fit.

Should the Courts concur, then this precedent will mark the death of the Constitution.  Our other rights mean nothing when the government can deny the right to legal representation — without which our Courts are useless to the average citizen — and execution without any public (let alone judical) review.  Habeas corpus, the primary right, becomes meaningless.  We will have less rights than Brits before the infamous Star Chamber (Wikipedia).  In better days Justice Stewart delivered the opinion of the Supreme Court that “the Star Chamber has for centuries symbolized disregard of basic individual rights” (source).  What’s at stake here?

  • Should the Courts approve this, we will have passed an milestone.  Our legal system, our highly educated and mostly well-meaning judges and attorneys, will have become links in our chains.  From a historian’s perspective, their important function being writing briefs justifying government secrecy, arbitrary search and seizure, torture, and execution.
  • The republic’s buildings will remain standing.  Congress and the Courts meet as usual.  Much as Rome’s Senate still met and talked during the Principate days of the Roman Empire (Wikipedia).  Eventually a President might nominate a horse to the Supreme Court, to end the farce.
  • No historical event is irreversible.  Events are significant primarily as markers, showing the condition of a people.   The event does not destroy the Republic, it shows that our unworthiness to inherit the Republic.  Our incapacity to carry the burden of self-government.  Our fitness as sheep.
  • If this happens, we can expect interesting times ahead.  Who will rule us?  The Roman Republic ended badly, a series of wars deciding who would establish the new political regime.  Rome’s people got to choose which tyrant to follow, to die for.

For background about the Presidential authority to assassinate US citizens, see Another nail put in the Constitution’s coffin, but we don’t care.  There is no discussion here of the specifics.  Guilty or innocent, it’s not the Executive’s job to act as prosecutor, judge, jury, and executioner.

Update from Glenn Greenwald:

Politico‘s Josh Gerstein reports that the administration has magnanimously deigned to grant permission to the ACLU and CCR to represent Awlaki’s father (and Awlaki’s interests).  The primary effects of this decision are two-fold:  it

  1. moots the ACLU/CCR’s legal challenge to the administration’s licensing scheme, thus enabling them to avoid this legal challenge (and thus continue to wield this asserted power until someone else challenges its legality), and
  2. ensures that the ACLU and CCR will now promptly file the lawsuit seeking to enjoin the administration from killing Awlaki without criminal charges or any other due process of any kind.

Gerstein is a good reporter and his article on the administration’s response to this lawsuit is worth reading.

Update:  Bernard Finel (American Security Project) discusses this at “An Appalling Threat to Civil Liberties and Democracy“.

(2)  Excerpt

From the Motion for a temporary restraining order filed by attorneys of the American Civil Liberties Union and Center for Constitutional Rights, 3 August 2010.  Red emphasis added.  This describes madness, something from plays by Kafka.  Or from Solzhenitsyn’s stories about life in the Soviet Union.


This case challenges the legality of a regulatory scheme that requires attorneys to seek permission from the government before providing uncompensated legal representation to or for the benefit of individuals whom the government has designated as terrorists. In this case, the effect of the scheme may be to deny legal representation to a United States citizen whom the government is attempting to kill without any legal process.

On July 7, 2010, Plaintiffs American Civil Liberties Union Foundation (ACLU) and the Center for Constitutional Rights (CCR) were retained by Nasser al-Aulaqi to provide uncompensated legal representation in connection with the government’s reported decision to add his son, U.S. citizen Anwar al-Aulaqi, to its list of suspected terrorists approved for “targeted killing.” According to published reports, Anwar al- Aulaqi has already been the target of several unsuccessful drone strikes, and both the CIA and the U.S. military are actively attempting to kill him.

… On July 16, 2010, the Office of Foreign Asset Control (OFAC), a division of the Department of the Treasury, labeled Mr. Aulaqi a “Specially Designated Global Terrorist” (SDGT). As a consequence of that designation and regulations promulgated by OFAC, Mr. Aulaqi’s assets have been blocked, and U.S. persons are generally prohibited from engaging in any transactions with him or for his benefit under threat of criminal sanction. OFAC’s regulations make it illegal for attorneys to provide “legal services” to or for the benefit of a blocked individual in Aulaqi’s circumstances without a license from OFAC. Unless the government grants the ACLU and CCR a specific license, OFAC’s regulations make it a criminal offense for ACLU and CCR attorneys to file a lawsuit on Mr. Aulaqi’s father’s behalf seeking to protect the constitutional rights of his U.S. citizen son. In other words, under the regulations at issue in this case, the same government that is seeking to kill Anwar al- Aulaqi has prohibited attorneys from contesting the legality of the government’s decision to use lethal force against him.

Pursuant to this regulatory scheme, on July 23, 2010 Plaintiffs ACLU and CCR submitted to OFAC an application for a license to provide uncompensated legal representation to Nasser al-Aulaqi as representative of the interests of his son, Anwar al- Aulaqi, who remains in hiding. Plaintiffs emphasized that the application was extremely urgent because of the nature of the action planned by the government against Mr. Aulaqi, and they requested that the license be issued immediately. Nonetheless, more than ten days have now elapsed, and defendants have not granted the requested license.

Plaintiffs bring this action challenging the legality and constitutionality of the regulatory and licensing scheme as applied to attorneys seeking to provide uncompensated legal representation. As an initial matter, OFAC has exceeded its statutory authority by promulgating regulations that purport to prohibit a U.S. citizen or a person acting on his behalf or in his interest from retaining even uncompensated lawyers to assert legal rights; no plausible reading of the relevant statute evinces a congressional intent to regulate non-economic activity of this nature. Even if this Court were to conclude that the regulations at issue are not ultra vires, those regulations are unconstitutional insofar as they condition the provision of uncompensated legal services on the acquiescence of the very government that the designated citizen and his attorneys are seeking to sue.

Body of the motion

… As the court of appeals recognized in AAC, individuals have a right under the First Amendment and the Due Process Clause to associate with counsel and to be represented by counsel in court.  “[I]n our complex, highly adversarial legal system, an individual . . . may in fact be denied the most fundamental elements of justice without prompt access to counsel.”

… In addition, OFAC’s regulations also raise exceptionally serious separation-of-powers issues. Because a lawsuit cannot be filed for the benefit of Mr. Aulaqi without an OFAC license, OFAC’s regulations have the effect of giving the executive branch effective veto power over a citizen’s right to go to court to challenge executive branch conduct. The notion that the government can compel a citizen to seek its permission before challenging the constitutionality of its actions in court is wholly foreign to our constitutional system. … In this case, OFAC’s restrictions are particularly severe: they prevent designated individuals, including Mr. Aulaqi, from vindicating their rights in court without the express permission of the U.S. government.

… The regulatory scheme at issue here provides none of the safeguards that Freedman requires – indeed it provides no procedural safeguards at all. It specifies no time period within which OFAC must respond to a license application. … If an application is denied – or constructively denied, as in this case – the applicant bears the burden of initiating judicial review, as Plaintiffs have had to do in the instant case.

… The regulatory regime at issue here does not constrain the discretion of OFAC – let alone with narrow, objective, and definite standards. In fact the regulatory regime sets out no standards at all to govern OFAC’s consideration of license applications. Nothing in the statute, the Executive Order, or the SDGT regulations forecloses OFAC from granting licenses to favored attorneys and denying them to disfavored ones; from responding expeditiously to favored attorneys and leisurely to disfavored ones; or from granting licenses in run-of-the-mill cases but denying them in politically controversial ones. And nothing prevents the government from using the licensing scheme as a means of insulating its own policies and conduct from judicial review. The regulatory regime violates the First Amendment by investing OFAC with unbridled discretion.

OFAC’s regulations are preventing Plaintiffs from providing legal services for the benefit of a U.S. citizen against the government’s decision to kill him without due process.

(3)  How did we get to this point?

See the comments at the Volokh Conspiracy website article “Targeting of US Citizen“, 7 April 2010.  Not much support there for a government of laws.  Lots of fear, blood-lust, rage.  These are 3 of the first 5.

  • Parable_of_the_rich_man says:  I’ll save everybody the trouble. Just tell me where he is. The lowlife traitor is |NO AMERICAN in my eyes.
  • John says: So long as each and every Hellfire has the Miranda warning imprinted on it I see no problem.
  • ShelbyC says:  The reliance on proximity to a battlefield strikes me as odd. Isn’t wherever the exec chooses to engage an enemy combattant a battlefield?

What degree of tyranny will these people accept?  All the way, I suspect.  Perhaps they see themselves as guard dogs for the emperor.  Or vicariously thrill to his power.

(4)  Posts about the Constitution and our government

  1. Forecast: Death of the American Constitution, 4 July 2006
  2. The Constitution: wonderful, if we can keep it, 15 February 2008
  3. Congress shows us how our new government works, 14 April 2008
  4. See the last glimmers of the Constitution’s life…, 27 June 2008
  5. Remembering what we have lost… thoughts while looking at the embers of the Constitution, 29 June 2008
  6. A report card for the Republic: are we still capable of self-government?, 3 July 2008
  7. Another step away from our Constitutional system, with applause, 19 September 2008
  8. What comes after the Constitution? Can we see the outlines of the “Mark 3″ version?, 10 November 2008
  9. Are Americans still willing to bear the burden of self-government?, 27 March 2009
  10. “Lights, Camera, Democracy” by Lewis Lapham, 24 May 2009
  11. “The Constitution that I interpret and apply is not living, but dead.” – Supreme Court Justice Scalia, 9 June 2009
  12. More about the tottering structure of the American political regime, 17 August 2009
  13. Listen to the crowds cheering Sarah Palin, hear the hammerblows of another nail in the Constitution’s coffin, 8 February 2010
  14. Another nail put in the Constitution’s coffin, but we don’t care, 9 February 2010
  15. Does the US government have the American people’s consent to govern?, 10 March 2010
  16. Recommended reading about the Constitution, 17 March 2010
  17. Another step towards fascism: “Silencing the Lawyers”, 31 May 2010
  18. The Feds decide who to lock up for life (not just at Guantanamo), another nail in the Constitution’s coffin, 2 June 2010
  19. The President’s big stick (domestic): his National Emergency Powers, 12 June 2010

(5)  Afterword and contact info

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