Every day the Constitution dies a little more

Summary: Next steps in the legal battle to preserve the most basic of Constitutional rights, stopping the government from executing citizens as it pleases. Without even the pretense of warrants or trials. A follow-up to Another step towards fascism: “Silencing the Lawyers” and Code red! The Constitution is burning.

Every day the Constitution dies a little more. Slowly. That’s the key to moving sheep without upsetting them. We’ve become accustomed to arbitrary search at airports. Arbitrary monitoring of our communications and seizure of our assets. The current phase consists of the government getting us accustomed to arbitrary execution.

They government says he’s a bad guy, which suffices for execution.
Neither political party will help. The Left is ovine; the Right is increasingly authoritarian if not fascist.
The legal profession will, as a group, not help — other than producing nicely written papers justifying torture and arbitrary execution.
The Courts have done little so far; we can only wait to see what they do in the future.

Take a moment to read this document and weep, before turning to the latest TV program. Imagine how the Founders would despair at how weak and spineless we’ve become. From Anwar Al-Aulaqi vs. Barack H. Obama, Complaint for Declarative and Injunctive Relief, 30 August 2010:

(1) This case concerns the executive’s asserted authority to carry out “targeted killings” of U.S. citizens suspected of terrorism far from any field of armed conflict. According to numerous published reports, the government maintains lists of suspects — “kill lists” — against whom lethal force can be sued without charge, trial, or conviction. Individuals, including US citizens, are added to the lists based on executive determinations that secret criteria have been satisfied. Executive officials are thus invested with sweeping authority to impose extrajudical death sentences in violation of the Constitution and international law.

(2) The right to life is the most fundamental of all rights. Outside the context of armed conflict, the intentional use of lethal force without prior judicial process is an abridgement of this right except in the narrowest and most extraordinary circumstances.

(3) The United States is not at war with Yemen, or within it. Nonetheless, U.S. government officials have disclosed the government’s intention to carry out the targeted killing of U.S. citizen Anwar Al-Aulaqi, who is in hiding there. In early 2010, several newspapers reported that U.S. government officials had confirmed Anwar Al- Aulaqi’s placement on government kill lists; these lists amount to standing authorizations to use lethal force. Numerous subsequent reports have corroborated those accounts. According to one media report, there have already been as many as a dozen unsuccessful attempts on Anwar Al-Aulaqi’s life. Anwar Al-Aulaqi has been in hiding since at least January 2010. Plaintiff Nasser Al-Aulaqi is Anwar Al-Aulaqi’s father; he brings this action on his own behalf and as next friend to his son.

(4) Outside of armed conflict, both the Constitution and international law prohibit targeted killing except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury. The summary use of force is lawful in these narrow circumstances only because the imminence of the threat makes judicial process infeasible. A targeted killing policy under which individuals are added to kill lists after a bureaucratic process and remain on these lists for months at a time plainly goes beyond the use of lethal force as a last resort to address imminent threats, and accordingly goes beyond what the Constitution and international law permit.

(5) The government’s refusal to disclose the standard by which it determines to target U.S. citizens for death independently violates the Constitution: U.S. citizens have a right to know what conduct may subject them to (6) execution at the hands of their own government. Due process requires, at a minimum, that citizens be put on notice of what may cause them to be put to death by the state.

(6) Plaintiff seeks a declaration from this Court that the Constitution and international law prohibit the government from carrying out targeted killings outside of armed conflict except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury; and an injunction prohibiting the targeted killing of U.S. citizen Anwar Al-Aulaqi outside this narrow context. Plaintiff also seeks an injunction requiring the government to disclose the standards under which it determines whether U.S. citizens can be targeted for death.

That’s not the really bad news. This is the bad news.

Glenn Greenwald aptly describes the real horror of the situation:

What I’ve found most disturbing about this controversy from the start is how many Americans are willing to blindly believe the Government’s accusations of Terrorism against their fellow citizens — provided they’re Muslims with foreign-sounding names — without needing to see any evidence at all. All government officials have to do is anonymously leak to the media extremely vague accusations against someone without any evidence presented (Awlaki is involved in multiple plots!!), and a substantial number of people will then immediately run around yelling:  Kill that Terrorist!!

It’s an authoritarian scene out of some near-future dystopian novel, yet it’s exactly what is happening. This is precisely the reaction of a substantial portion of the population which has been trained to believe every unproven government accusation of Terrorism. The mere utterance of the accusation — Terrorist — sends them into mindless, fear-driven submission, so extreme that they’re willing even to endorse a Presidential-imposed death penalty on American citizens with no due process:  about the most tyrannical power that can be imagined, literally.

The fact that this very same Government is continuously and repeatedly wrong when it makes those accusations does not seem to be even a cause for hesitation among this faction. They just keep dutifully reciting the ultimate authoritarian anthem:  if my Government says it, it must be true, and I don’t need to see any evidence or indulge any of this bothersome process stuff — trials and courts or whatever — before punishment is meted out, including the death penalty.

A note from the past

“They who would give up essential liberty to purchase a little temporary safety deserve neither liberty or safety.”
— From the title page of An Historical review of the Constitution and Government of Pennsylvania (1759); written by Richard Jackson and published by Benjamin Franklin

Other posts about our government’s adoption of assassination as a routine tactic