On the Claimed 'War Exception' to the Constitution

Published on Thursday, February 4, 2010 by Salon.com

On the Claimed 'War Exception' to the Constitution

by Salon.com

by Glenn Greenwald

Last week, I wrote about [1] a revelation buried in a Washington Post article [2] 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 [3], Adm. Dennis Blair was asked about this program at a Congressional hearing yesterday and he acknowledged its existence:

The U.S. intelligence community policy on killing American citizens who have joined al Qaeda requires first obtaining high-level government approval, a senior official disclosed to Congress on Wednesday.

Director of National Intelligence Dennis C. Blair said in each case a decision to use lethal force against a U.S. citizen must get special permission. . . .

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 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 [4]:  

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.

* * * * *

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-Awalki 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 Qeada and now provides "encouragement" to others to engage in attacks --  a charge al-Awalki's family vehemently denies [5] (al-Awalki 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 [6], 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 Brandenberg 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):

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 U.S. 242, 259 -261 (1937); Bond v. Floyd, 385 U.S. 116, 134 (1966). A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.

From all appearances, al-Awalki 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 abrigements (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.

* * * * * 

That last point is the most important one here.  Atrios wrote [7] 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 [8] 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):

[9]

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 [10]?  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 [11], Dahlia Lithwick encapsulated this problem perfectly; her whole article should be read, but this excerpt is superb:

America has slid back again into its own special brand of terrorism-derangement syndrome. Each time this condition recurs, it presents with more acute and puzzling symptoms. . . .

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 Guantanamo without trials. If a terrorist cooperates without being tortured we complain about how much more he would have cooperated if he hadn't been read his rights. No matter how tough we've been on terror, we will never feel safe enough to ask for fewer safeguards. . . .

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 World Trade Center fell. What's changing -- what's slowly ticking its way down to zero -- is our own certainty that we can never be safe enough and our own confidence in the rule of law.

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 [12] 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.

Copyright ©2010 Salon Media Group, Inc.

Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act? [13]," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy [14]", examines the Bush legacy.

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