Freedom and the Omnipotent Power to Assassinate
By Jacob G. Hornberger
April 25, 2015 "Information
Clearing House" - "FFF"
- As a kid growing up, did you ever think you’d live under a government
that had the omnipotent power to assassinate you and every other American
citizen? If you heard about some communist regime or other totalitarian
government wielding the omnipotent power to assassinate its own citizens, you
wouldn’t be surprised. But I’ll bet that the vast majority of Americans never
thought they would end up living under a governmental structure that had that
sort of power over the citizenry.
That’s certainly not
the type of governmental structure that the Framers brought into existence with
the Constitution. The federal governmental structure that the Constitution
brought into existence was one whose powers were limited to those enumerated in
the Constitution itself. The power to assassinate people, Americans or
foreigners, was not among those enumerated powers.
The American people were skeptical and distrustful about the
powers of the new government. They had had experience with a government that
engaged in brutal actions against its own citizens. They were concerned about
the same sort of thing happening again. That’s why they insisted that the
Constitution be amended immediately after its approval. Among the amendments
were the Fourth, Fifth, Sixth, and Eighth Amendments, which prohibited the
federal government from killing people, Americans or foreigners, without
according them long-established procedural rights and guarantees, such as trial
by jury, due process of law, and right to counsel.
And then came the 9/11 attacks. President Bush simply issued a
decree stating that he and his national-security establishment—i.e., the
military and the CIA—now automatically wielded the omnipotent power to
assassinate both Americans and foreigners.
Ironically, when Nicolas Maduro, the president of Venezuela,
recently sought extraordinary, emergency powers in response to President Obama’s
decree that Venezuela now posed a grave threat to U.S. “national security,” he
asked the Venezuela legislature to grant him such powers. Ironically, Adolph
Hitler did the same thing after the terrorist attack on the Reichstag. He went
to the German legislature to make his case for giving him extraordinary powers
to wage the war on terrorism.
Not Bush. He said that since America now had its own war on
terrorism, he didn’t need congressional approval for assuming and exercising the
power to assassinate. He simply announced that he now had such power over the
American people and others around the world. Of course, he exercised such
omnipotent power through his military forces and his CIA forces.
Bush’s omnipotent power to assassinate Americans and
foreigners was passed to President Obama. It will be also passed to Hillary
Clinton, Jeb Bush, or whoever is elected president in 2016.
The federal judiciary has made it clear that it has absolutely
no intention of interfering with the national-security state’s power to
assassinate people. The Supreme Court calls the “political question doctrine,” a
doctrine that, needless to say, is not found in the Constitution and is simply a
way to avoid interfering with the operations of the most powerful branch of the
federal government — the national-security branch.
The members of Congress certainly aren’t going to interfere
with the president’s power to assassinate Americans. The Pentagon could threaten
to cancel military projects in their district. And taking on the CIA is
something that the members of Congress have absolutely no interest in doing.
One might say: “But Jacob, the government isn’t assassinating
multitudes of Americans or rounding them up, putting them into concentration
camps, and torturing them. They’re only doing such things to a very small number
of Americans. And they’re doing it as part of national-security operations to
keep us safe. The rest of us are still living in a free society because while
they wield the power to assassinate us, they’re not exercising the power except
on a tiny few.”
Suppose that after 9/11, Americans immediately amended the
Constitution to nullify the First Amendment. Immediately after the nullification
became effective, the government enacted a law that said that anyone who
criticized the government would receive the death penalty. For the past decade,
however, only a handful of people have been executed for criticizing the
government. Millions more have continued to criticize the government without
being rounded up and executed.
Would you feel that you lived in a free society under that
type of law? Would you say, “Jacob, of course we’re free because the government
isn’t enforcing the sedition law except on just a handful of critics”?
Simply because the government wasn’t exercising its power to
punish all the critics wouldn’t mean that that’s a free society. Everyone would
have to factor into his decision-making the fact that the government wields the
power to execute people for criticizing the government and that it could begin
exercising its powers in a widespread manner on a moment’s notice.
Thus, as our American ancestors understood so clearly, the
genuinely free society is not one in which the government wields the power to
execute people for criticizing the government but exercises such power wisely
and judiciously. The genuinely free society is one in which the government lacks
the power to punish people for criticizing the government.
That’s why the Constitution failed to grant the federal
government the power to kill or otherwise do bad things to people for
criticizing the government. It’s also why our ancestors made certain that the
First Amendment was enacted — to make sure that federal officials got the point.
The same principles apply to the government’s post-9/11 power
to assassinate Americans. No matter how wisely and judiciously such power might
be exercised, the mere wielding of such power is what totalitarian regimes do,
not governments in free societies. The genuinely free society is one in which
the government lacks the power to assassinate. That’s why the Constitution fails
to delegate to the federal government the power to assassinate people, even in
matters relating to “national security.” It’s also why our ancestors made
certain that the Fourth, Fifth, Sixth, and Eight Amendments were enacted — to
make certain that federal officials got the point.
Jacob G. Hornberger is founder and president of The Future
of Freedom Foundation. He was born and raised in Laredo, Texas, and received his
B.A. in economics from Virginia Military Institute and his law degree from the
University of Texas. He was a trial attorney for twelve years in Texas. He also
was an adjunct professor at the University of Dallas, where he taught law and
economics. In 1987, Mr. Hornberger left the practice of law to become director
of programs at the Foundation for Economic Education