Published on Thursday, February 4, 2010 by Salon.com
On the Claimed 'War Exception' to the Constitution
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:
Director of National Intelligence Dennis C. Blair said in each case a decision to use lethal force against a
He also said there are criteria that must be met to authorize the killing of a U.S. citizen that include "whether that American is involved in a group that is trying to attack us, whether that American is a threat to other Americans. Those are the factors involved."
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 Preisdent, 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
This is the new normal for Republicans: You can be denied rights not through due process of law but merely based on the nature of the crime you are suspected of committing.
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
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
As we [395 U.S. 444, 448] said in Noto v. United States, 367 U.S. 290, 297 -298 (1961), "the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action." See also Herndon v. Lowry, 301
From all appearances, al-Awalki seems to believe that violence by Muslims against the
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
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
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
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
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:
Moreover, each time Republicans go to their terrorism crazy-place, they go just a little bit farther than they did the last time, so that things that made us feel safe last year make us feel vulnerable today. . . . In short, what was once tough on terror is now soft on terror. And each time the Republicans move their own crazy-place goal posts, the Obama administration moves right along with them. . . .
We're terrified when a terror attack happens, and we're also terrified when it's thwarted. We're terrified when we give terrorists trials, and we're terrified when we warehouse them at
But here's the paradox: It's not a terrorist's time bomb that's ticking. It's us. Since 9/11, we have become ever more willing to suspend basic protections and more contemptuous of American traditions and institutions. The failed Christmas bombing and its political aftermath have revealed that the terrorists have changed very little in the eight-plus years since the
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 presdiency:
Can it be true that any president really has such powers under our Constitution?
If the answer is yes, then under the theory by which these acts are committed, are there any acts that can on their face be prohibited?
If the president has the inherent authority to eavesdrop on American citizens without a warrant, imprison American citizens on his own declaration, kidnap and torture, then what can't he do?
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.
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Glenn Greenwald was previously a constitutional law and civil rights litigator in
URL to article: http://www.commondreams.org/view/2010/02/04-3
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"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs