Summary: It’s not too soon to begin preparations for your Memorial Day celebrations. I suggest starting with a public reading of the documents (suitably redacted) which create a New America on the ruins of the Republic. Let’s remember the Republic that our fallen fought for — and how we we threw it away. I can imagine no better way to honor their sacrifices than by taking the first steps to rebuild America. {1st of 2 posts today.}
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury … nor be deprived of life, liberty, or property, without due process of law…
— Fifth Amendment to the Constitution of the United State (1788 — ????),
On 16 July 2010 the DoJ’s Office of Legal Counsel (OLC) provided Attorney General Eric Holder with the “Memorandum for the Attorney General Re: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi” (see the document’s history on page 40, and the document itself starting on page 67; dating it 12 days earlier would have been quite apt).
Originally classified secret, last year a Federal Judge ordered release of this heavily redacted version in response to litigation over a Freedom of Information Act request by the ACLU and the New York Times. It’s a historic document, declaring that the Constitution requires “due process” that can be provided by action of the Executive branch alone, without judicial review or action — for actions up to and including execution of citizens
It, along with the OLC’s 2002 memorandum declaring that torture is legal, are among the great documents creating a the New America on the ruins of the Second Republic (built on the Constitution). It’s fitting that the Second Republic was created in daylight — public debate followed with votes by elected representatives — while government attorneys issue in secret the documents creating its replacement. It’s fitting that both parties drive this process, the first issued under Bush Jr and the second under Obama. Bipartisanship!
James P. Stevenson at AntiWar eviscerates the OLC’s reasoning in his brief clear “Protecting American Citizens From Drones“. But this analysis, like other such rebuttals, is irrelevant. Once government officials can at on legalese stating that the plain language of the Constitution no longer applies, then the Constitution is finished. No legal rebuttals can save it.
Limiting the Monarchs’ right of arbitrary arrest and punishment of their subjects took 450 years, from the first tentative agreement in Magna Carta (1215) to its achievement in the English Civil War (1641-1662). Now we allow government officials to easily erase these liberties so painfully gained over centuries, granting themselves powers not seen in Anglo-American history since the Stuart Kings.
These men created the precedent that an attorney can write a word salad repealing core provisions of the Constitution — and the President can act upon it. That this occurs in secret is just grease on these wheels. Neither the Courts nor Congress nor the public rebelled at news of these documents.
Nobody has been punished. Bush and his attorney generals are distinguished statesmen. The author of the torture memos, John Yoo, is a professor of law at Berkeley. His boss, Jay Bybee, sits as judge on Ninth Circuit Court of Appeals.
Former Attorney General Holder gave the 2012 commencement speech to graduates of Harvard Law, urging them to “Put your skills to use to define our future’ — since there still many parts of the Constitution yet to be shredded. If they pelted him with fruit it would have shown that some spirit of liberty still lived in America, and that some students at Harvard Law understood the system which they should serve. Rather their applause showed awareness of our new legal regime, and the rewards for the pioneers who aid it.
Previous generations of Americans fought — and many died — for the rights we allow the government to take away. I can imagine no greater betrayal of our debt to them and our obligation to our children. We can point to those responsible, but when doing so more fingers point back to us.
America can change only by the decisions of individuals — such as you. Link up with others to do what you believe should be done. See the posts at Reforming America: steps to new politics for ideas about tactics and strategy. The political machinery the Founders built for us remains idle yet potentially powerful. On Memorial Day make your own beginning.
For More Information
If you liked this post, like us on Facebook and follow us on Twitter. See the links at the pages About the quiet coup in America and Reforming America: steps to new politics. Also see these other posts:
- “The Great Charter, Its Fate, and Ours” by Noam Chomsky,.
- Obama repeals Magna Carta, asserting powers our forefathers denied to Kings.
- We are alone in the defense of the Republic — Attorneys, doctors, judges, and their professional societies. None will help.
I still do not understand how Awlaqi’s father could not get standing to sue before or after his son’s extra-judicial murder from the courts. While I agree that Harvard Law School students, in fact every citizen, should have been pelting Eric Holder with rocks and garbage, the signal failures in the birth of this rough beast have been the refusal of the legislative and judicial branches to assert their rights and exercise their responsibilities.
Citizens are waiting, as I used to kid a friend’s dad who worshipped the Times, for the headline that says, “Nation Quietly Slips into Fascism.” Congress and the judiciary don’t need to wait for anything, but are refusing to do their jobs.
MFLKKT,
Nicely said. Rephrased, the citizenry need to act in response to a massive failure of our political institutions. But then, the people of those institutions are Americans, and so share our apathy and passivity with regards to the burdens of self-government. So this should not surprise us.
Members and judges get paid to to assert their institutions’ rights and exercise their responsibilities. Citizens don’t. Indeed, unless they are invited to do so, citizens will be punished if they show up in court and urge a judge to let Awlaqi Sr. go ahead with his lawsuit or in a Congressional hearing room and urge Congresscritters to investigate and prosecute Bush the Lesser Era war criminals.
So, except in a virtual cultural sense, I don’t see how the first failure here is mine or yours or any citizen’s who isn’t a judge or a Member. Vince Bugliosi and Sean Wilentz wrote their asses off when Bush the Lesser stole the election. Other then the CBC, who called for an investigation? Al Gore sure didn’t. Millions of Americans demonstrated against his war of choice against Iraq. The media said, for the 10,000th time, “There were echoes of the Vietnam War Era today when …” So, which comes first – institutional refusal to perform the work they are paid to do, or citizen frustration, resignation and passivity?
I don’t see any indication at this point that Our Betters in the judiciary, Congress or the major media will respond to anything less than violence.
MFLKKT,
We are not consumers of American politics, sitting on our butts as we critique the people who run America. If the members of the 3 branches disregard the Constitution, We the People have the obligation to stop them. Voting, organizing to elect candidates — using the wide range of tactics developed during the past 2 centuries (communication, protesting, etc).
“Silence means assent” is an ancient principle of western law and philosophy. We see this in the comments here about the decline of America, which are largely people explaining why we cannot do anything. I find this really really depressing.
“I don’t see any indication at this point that Our Betters in the judiciary, Congress or the major media will respond to anything less than violence.”
That’s a popular surrender trope. We sit on our butts and wonder why we’re not powerful. It must mean that the Republic’s political machinery no longer works. Let’s sit on our butts until that Great Day when the Masses Arise and Smite our Oppressors.
I agree that violence is a surrender of sorts. But it is completely unfair to characterize what citizens have been doing while the Third Republic has been slouching toward Bethlehem as ‘sitting on our butts’ and I notice that you didn’t respond to my actual points: that both practitioners and professors of the law and many, many common citizens have in fact taken action to reverse this trend and the net result has been nothing.
This is first and foremost a failure of paid leadership: Al Gore didn’t have the election stolen from him so much as you and I did. I am not responsible for Al Gore’s passivity. A friend left his comfortable law practice and went to Florida to raise hell about the 2000 election. He wasn’t responsible for Al Gore’s passivity either. I did in fact switch careers and get some good people elected to Congress and then go to Capitol Hill to get done what I could. That was part of that wonderful time when common citizens worked their asses off to elect a Constitutional law professor who promised to restore the Bill of Rights etc. Millions who had never voted before turned out and worked their asses off to get him elected.
Indiana and North Carolina for fuck’s sake voted for this fellow – and then he stabbed all of us in the back by being just another fucking Chamber of Commerce Republican. This is a failure of leadership. Citizens are regrouping now. Because when we worked out asses off before, things only got worse – bipartisan worse.
Blame yourself if you wish. But leave me out of it.
MFLKKT,
(1) “I agree that violence is a surrender of sorts.”
That’s too absurd for reply, and quite obviously not what I said.
(2) “I notice that you didn’t respond to my actual points: that both practitioners and professors of the law and many, many common citizens have in fact taken action to reverse this trend and the net result has been nothing.”
That is quite absurd. There are 319 million Americans. The number of people who have taken personal actions as you describe is a very very small fraction of the total. That’s not how collective action works.
(3) “Millions of Americans demonstrated against his war of choice against Iraq.”
Please cite a source. That is imo quite exaggerated.
(4) “This is first and foremost a failure of paid leadership:”
How sad that the staff of the restaurant does not perform up to the standards our awesomeness deserves! As for the rest of your comment, it is a tragedy that the efforts you describe did not succeed in the eyeblink you expect, so I guess it’s back to the couch!
(5) “if you wish. But leave me out of it.”
Poor baby. Life is so difficult.
MFLKKT,
“I don’t see any indication at this point that Our Betters in the judiciary, Congress or the major media will respond to anything less than violence.”
This is the bottom line of your analysis, and shows its total bankruptcy. There has been no mass movement or large-scale political opposition to the trends reshaping America: surveillance, foreign wars, the TPP, militarization of police, rising inequality (as driven by public policy, e.g., education and taxes), etc. Nothing remotely on the scale of the 1950s – 1960s civil rights movement, the late 1960s anti-war movement, or the progressive era political and union organizations
In the absence of any large scale attempts at political reform by the usual and proven methods, to declare violence the only solution is bizarre. When done so by people who have absolutely no intention of acting on their belief it is just a rationalization for inaction.
Bravo Well stated and your anger/disappointment shines through. Thanks for putting the meme of this Blog in the spotlight. You must blame the Citizens here….it defers from the real work of defining the real Problem. Is it so unreasonable to speak openly and continuously about the betrayal of the citizens by the paid political class?
The USA is like an old dog, best days behind him, the dog is trying to run as fast as he can, to keep with his master in the Way he once was able. Give him some atta boys, be patient, enjoy the few years he has left and by all means put your firm attention on the young dogs in your pack who will soon replace him.
Long road ahead. Many will arise soon. Reality will force it and become more clear.
Breton
Breton,
“unreasonable to speak openly and continuously about the betrayal of the citizens by the paid political class?”
We elect them, and so must assume responsibility for them. This is just another example — so well shown in these comments — of our refusal to take responsibility for the Republic. Loud whining about the service is not a substitute.
“You must blame the Citizens here….it defers from the real work of defining the real Problem.”
I see the real problem is our unwillingness to act. You give analogies about dogs. Good luck with that accomplishing anything.
While we’re on the subject of secret agreements that trump the Constitution, I’d like to mention the Trans-Pacific Partnership. While not yet official, it’s being pushed through with considerable force, and like the memorandums you mentioned, its text is a closely guarded secret. It is different from the memos in that it empowers corporations, rather than the executive branch. It creates special courts designed to protect companies and investors from loss of profits caused by government regulations, which reminds me of FISA courts but for plutocrats instead of spooks.
tice,
I agree. The TPP is a clear example of the political processes of New America, where secret treaties are given “fast track” status with support of both parties (there is no polarization when it comes to policies which aid the 1%). Much like the process for reauthorization of the Patriot Act and faux-reform of the NSA, what we see in the newspapers has little resemblance to the final result.
FM remarked:
This is what baffles me. A million people jammed into the area around the Lincoln Memorial in Washington protest Nixon’s widening of the war into Cambodia in 1970. But when key provisions of the constitution get shredded…nothing.
Prohibitions against torture and extrajudicial murder of a nation’s citizens aren’t just part of the U.S. constitution, they represent the foundation of Western civil society since the Magna Carta. Yet except for a few lone voices like Glenn Greenwald and Naomi Wolf and Chris Hedges, no one in America seems inclined even to raise their voices about these atrocities.
Thomas,
“This is what baffles me.”
I agree. I’ve written quite a bit about this question: why we have become so apathetic or passive. My guess — impossible to validate — is that we have tired of carrying the burden of self-government. That was so in late Republican Rome. For more about this sad story see Caesar: A Biography
by Christian Meier.