On the Claimed "War Exception" to the Constitution
By Glenn Greenwald
February 06, 2010 "Salon" Feb. 04, 2010 --- Last week, I wrote about a revelation buried in a Washington Post article by Dana Priest which described how the Obama administration has adopted the Bush policy of targeting selected American citizens for assassination if they are deemed (by the Executive Branch) to be Terrorists. As The Washington Times' Eli Lake reports, Adm. Dennis Blair was asked about this program at a Congressional hearing yesterday and he acknowledged its existence:
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?
But even if you're someone who does want the President to have the power to order American citizens killed without a trial by decreeing that they are Terrorists (and it's worth remembering that if you advocate that power, it's going to be vested in all Presidents, not just the ones who are as Nice, Good, Kind-Hearted and Trustworthy as Barack Obama), shouldn't there at least be some judicial approval required? Do we really want the President to be able to make this decision unilaterally and without outside checks? Remember when many Democrats were horrified (or at least when they purported to be) at the idea that Bush was merely eavesdropping on American citizens without judicial approval? Shouldn't we be at least as concerned about the President's being able to assassinate Americans without judicial oversight? That seems much more Draconian to me.
It would be perverse in the extreme, but wouldn't it be preferable to at least require the President to demonstrate to a court that probable cause exists to warrant the assassination of an American citizen before the President should be allowed to order it? That would basically mean that courts would issue "assassination warrants" or "murder warrants" -- a repugnant idea given that they're tantamount to imposing the death sentence without a trial -- but isn't that minimal safeguard preferable to allowing the President unchecked authority to do it on his own, the very power he has now claimed for himself? And if the Fifth Amendment's explicit guarantee -- that one shall not be deprived of life without due process -- does not prohibit the U.S. Government from assassinating you without any process, what exactly does it prohibit? Noting Scott Brown's campaign to deny accused Terrorists access to lawyers and a real trial, Adam Serwer wrote:
That's absolutely true, but that also perfectly describes this assassination program -- as well as a whole host of other now-Democratic policies, from indefinite detention to denial of civilian trials.
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The severe dangers of vesting assassination powers in the President are so glaring that even GOP Rep. Pete Hoekstra is able to see them (at least he is now that there's a Democratic President). At yesterday's hearing, Hoekstra asked Adm. Blair about the threat that the President might order Americans killed due to their Constitutionally protected political speech rather than because they were actually engaged in Terrorism. This concern is not an abstract one. 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).
The question of where First Amendment-protected radical advocacy ends and criminality begins is exactly the sort of question with which courts have long grappled. In the 1969 case of Brandenburg v. Ohio, the Supreme Court unanimously reversed a criminal conviction of a Ku Klux Klan leader who -- surrounded by hooded indivduals holding weapons -- gave a speech threatening "revengeance" against any government official who "continues to suppress the white, Caucasian race." The Court held that the First Amendment protects advocacy of violence and revolution, and that the State is barred from punishing citizens for the expression of such views. The Brandenburg Court pointed to a long history of precedent protecting the First Amendment rights of Communists to call for revolution -- even violent revolution -- inside the U.S., and explained that the Government can punish someone for violent actions but not for speech that merely advocates or justifies violence (emphasis added):
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. Obviously, there are those who justify such assassination powers on the ground that radical Islam is a grave threat, but that is what is always said to justify Constitutional abridgements (it was obviously said of Communists and war critics during World War I). Indeed, in light of episodes like the Timothy McVeigh bombing and the various attacks on abortion clinics, shouldn't those who want the President to be able to assassinate American "radical clerics" without a trial also support the President's targeting of Americans who advocate extremism or violence from a far right or extremist Christian perspective? What's the principle that allows one but not the other?
In response to these concerns, Admiral Blair said yesterday: "We don't target people for free speech. We target them for taking action that threatens Americans or has resulted in it." But the U.S. Government -- like all governments -- has a long history of viewing "free speech" as a violent threat or even Terrorism. That's why this is exactly the type of question that is typically -- and is intended to be -- resolved by courts, according the citizen due process, not by the President acting alone. That's especially true if the death penalty is to be imposed.
But Obama's presidential assassination policy completely short-circuits that process. It literally makes Barack Obama the judge, jury and executioner even of American citizens. Beyond its specific application, it is yet another step -- a rather major one -- towards abandoning our basic system of checks and balances in the name of Terrorism and War.
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That last point is the most important one here. Atrios wrote the other day that a central prong in the Washington consensus is that "all it takes to nullify the constitution is to call someone a terraist." That's absolutely true, but a close corollary is that merely uttering the word "war" justifies the same thing. That's particularly dangerous given that, by all accounts, this is a so-called "war" that will not end for a generation, if ever. To justify the abridgment or even suspension of the Constitution on the ground of "war" is to advocate serious alterations to our Constitutional framework that are more or less permanent. Several points about that "war" excuse:
First, there's no "war exception" in the Constitution. Even with real wars -- i.e., those involving combat between opposing armies -- the Constitution actually continues to constrain what government officials can do, most stringently as it concerns U.S. citizens. Second, strictly speaking, we're not really "at war," as Congress has merely authorized the use of military force but has not formally or Constitutionally declared war. Even the Bush administration conceded that this is a vital difference when it comes to legal rights. In 2006, the Bush DOJ insisted that the wartime provision of FISA -- allowing the Government to eavesdrop for up to 15 days without a warrant -- didn't apply because Congress only enacted an AUMF, not a declaration of war (click image to enlarge):
The Bush DOJ went on to explain that declarations of war trigger a whole variety of legal effects (such as terminating diplomatic relations and abrogating or suspending treaty obligations) which AUMFs do not trigger (see p. 27). To authorize military force is not to declare war. Finally, the U.S. is fighting numerous undeclared wars, including ones involving military action: given that our "War on Drugs" continues to rage, should the U.S. Government be able to target accused "drug kingpins" for assassination without a trial, the way we attempted to do in Afghanistan? After all, Terrorists blow up airplanes but Drug Kingpins kill our kids!!! The mindset that cheers for unlimited Presidential powers in the name of "war" invariably leads to exactly these sorts of expansions.
Far beyond the specific injustices of assassinating Americans without trials, the real significance, the real danger, is that we continue to be frightened into radically altering our system of government. In Slate yesterday, Dahlia Lithwick encapsulated this problem perfectly; her whole article should be read, but this excerpt is superb:
This descent has certainly not reversed itself -- it has not really even slowed -- with the election of a President who repeatedly vowed to reject this mentality. Just consider what Al Gore said in his truly excellent 2006 speech decrying the "Constitutional crisis" under the Bush presidency:
Here we are, almost four 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.
The Lynch-mob Mentality
That proposition should be intrinsically understood by any American who completed sixth grade civics and was thus taught that a central prong of our political system is that government officials often abuse their power and/or err and therefore must prove accusations to be true (with tested evidence) before they're assumed to be true and the person punished accordingly. In particular, the fact that the U.S. Government, over and over, has falsely accused numerous people of being Terrorists -- only for it to turn out that they did nothing wrong -- by itself should compel a recognition of this truth. But it doesn't.
All throughout the Bush years, no matter what one objected to -- illegal eavesdropping, torture, rendition, indefinite detention, denial of civilian trials -- the response from Bush followers was the same: "But these are Terrorists, and Terrorists have no rights, so who cares what is done to them?" What they actually meant was: "the Government has claimed they are Terrorists," but in their minds, that was the same thing as: "they are Terrorists." They recognized no distinction between "a government accusation" and "unchallengeable truth"; in the authoritarian's mind, by definition, those are synonymous. The whole point of the Bush-era controversies was that -- away from an actual battlefield and where the Constitution applies (on U.S. soil and/or towards American citizens wherever they are) -- the Government should have to demonstrate someone's guilt before it's assumed (e.g., they should have to show probable cause to a court and obtain warrants before eavesdropping; they should have to offer evidence that a person engaged in Terrorism before locking them in a cage, etc.). But to someone who equates unproven government accusations with proof, those processes are entirely unnecessary. Even in the absence of those processes, they already know that these persons are Terrorists. How do they know that? Because the Government said so. Even when it comes to their fellow citizens, that's all the "proof" that is needed.
That authoritarian mentality is stronger than ever now. Why? Because unlike during the Bush years, when it was primarily Republicans willing to blindly trust Government accusations, many Democrats are now willing to do so as well. Just look at the reaction to the Government's recent attempts to assassinate the U.S.-born American citizen and Islamic cleric Anwar al-Awlaki. Up until last November, virtually no Americans had ever even heard of al-Awlaki. But in the past few months, beginning with the Fort Hood shootings, government officials have repeatedly claimed that he's a Terrorist: usually anonymously, with virtually no evidence, and in the face of al-Awlaki's vehement denials but without any opportunity for him to defend himself (because he's in hiding out of fear of being killed by his own Government). The Government can literally just flash someone's face on the TV screen with the word Terrorist over it (as was done with al-Awlaki), and provided the face is nefarious and Muslim-looking enough (basically the same thing), nothing else need be offered.
That's enough for many people -- including many Democrats -- to march forward overnight and mindlessly proclaim that al-Awlaki is "a declared enemy of the United States working to kill Americans" (if you can stomach it, read some of these comments -- from Obama defenders at a liberal blog -- with several sounding exactly like Dick Cheney, screeching: "Of course al-Awlaki should be killed without charges; he's a Terrorist who is trying to kill Americans!!!"). Even now, beyond government assertions about his associations, the public knows virtually nothing about al-Awlaki other than the fact that he's a Muslim cleric with a Muslim name dressed in Muslim garb, sitting in a Bad Arab Country expressing anger towards the actions of the U.S. and Israel. But no matter. That's more than enough. They're willing not only to mindlessly embrace the Government's unproven accusation that their fellow citizen is a TERRORIST ("a declared enemy of the United States working to kill Americans"), but even beyond that, to cheer for his due-process-free execution like drunken fans at a football game. And the same people declare: no civilian trials are necessary for Terrorists (meaning: people accused by the Government of being Terrorists). Even more amazingly, the identities of the other Americans on the hit list aren't even known, but that's OK: they're Terrorists, because the Government said so.
A very long time ago, I would be baffled when I'd read about things like the Salem witch hunts. How could so many people be collectively worked up into that level of irrational frenzy, where they cheered for people's torturous death as "witches" without any real due process or meaningful evidence? But all one has to do is look at our current Terrorism debates and it's easy to see how things like that happen. It's just pure mob mentality: an authority figure appears and affixes a demonizing Other label to someone's forehead, and the adoring crowd -- frothing-at-the-mouth and feeding on each other's hatred, fears and desire to be lead -- demands "justice." I imagine that if one could travel back in time to the Salem era in order to speak with some of those gathered outside an accused witch's home, screaming for her to be killed, the conversation would go something like this:
That's essentially how I hear our debates over Terrorism, and how I've heard them for quite some time. And it's how I hear them more loudly now than ever before. And with those deeply confused premises now locked into place on a bipartisan basis ("no trials are needed to determine if someone is a Terrorist because Terrorists don't have rights"), imagine how much louder that will get if there is another successful terrorist attack in the U.S. But in fairness to the 17th Century Puritans, at least the Salem witches received pretenses of due process and even trials (albeit with coerced confessions and speculative hearsay). Even when it comes to our fellow citizens, we don't even bother with those. For us, the mere accusation by our leaders is sufficient: Kill that American Terrorist with a drone!
UPDATE: A long-time, regular commenter here, Jestaplero, is a state prosecutor in New York, and he explains -- in this comment -- how the mentality discussed here can and does easily expand beyond the realm of Terrorism.
Interestingly, even Allahpundit at Michelle Malkin's Hot Air recognizes the serious dangers in allowing the Government to decree even U.S. citizens to be "Terrorists" and then treat them accordingly, with no due process. But note how his right-wing commenters are almost exclusively of the "just-kill-him" school of thought, and how identical they sound to that minority of Daily Kos commenters I linked above who, in their blind loyalty to Obama, also insist that there's nothing wrong with simply snuffing out the lives of their fellow citizens who are "Terrorists" (meaning: anyone their Leader claims is a Terrorist) with no due process or oversight whatsoever. Ultimately, authoritarians are authoritarians, regardless of whether they situate themselves on the left or right.