{"id":30610,"date":"2014-02-17T16:06:55","date_gmt":"2014-02-17T12:06:55","guid":{"rendered":"https:\/\/mideastposts.com\/?p=30610"},"modified":"2014-02-17T16:06:56","modified_gmt":"2014-02-17T12:06:56","slug":"due-process-erased-u-s-constitution","status":"publish","type":"post","link":"https:\/\/mideastposts.com\/middle-east-politics-analysis\/due-process-erased-u-s-constitution\/","title":{"rendered":"“Due Process”: It’s Being Erased from U.S Constitution"},"content":{"rendered":"

\"drone<\/a><\/p>\n

Terrorism (ter-ror-ism; see also terror) n. 1. When a foreign organization kills an American for political reasons.<\/i><\/p>\n

Justice (jus-tice) n. 1. When the United States Government uses a drone to kill an American for political reasons.<\/i><\/p>\n

How\u2019s that morning coffee treating you? Nice and warming? Mmmm.<\/p>\n

While you\u2019re savoring your cup o\u2019 joe, imagine the president <\/i>of the United States hunched over his own coffee, considering the murder of another American citizen. Now, if you<\/i> were plotting to kill an American over coffee, you <\/i>could end up in jail on a whole range of charges including \u2014 depending on the situation \u2014 terrorism. However, if the president\u2019s doing the killing, it\u2019s all nice and \u2014 let\u2019s put those quote marks around it \u2014 \u201clegal.\u201d How do we know? We\u2019re assured that the Justice Department tells him so.\u00a0 And that\u2019s justice enough in <\/i>post-Constitutional America<\/a>.<\/p>\n

Through what seems to have been an Obama administration leak to the Associated Press<\/a>, we recently learned that the president and his top officials believe a U.S. citizen \u2014 name unknown to us out here \u2014 probably somewhere in the tribal backlands of Pakistan<\/a>, is reputedly planning attacks against Americans abroad. As a result, the White House has, for the last several months, been considering whether or not to assassinate him by drone without trial or due process.<\/p>\n

Supposedly, the one thing that\u2019s held up sending in the drones is the administration\u2019s desire to make sure the kill is \u201clegal.\u201d (Those quotes again.)<\/p>\n

Last May, Obama gave a speech<\/a> on the subject.\u00a0 It was, in part, a response to growing anger in Pakistan, Yemen, and elsewhere over the CIA\u2019s ongoing drone assassination campaigns with all their \u201ccollateral damage,\u201d and to the White House\u2019s reported \u201ckill list<\/a>.\u201d In it, he insisted that any target of the drones must pose \u201ca continuing and imminent threat to the American people.\u201d At the time, the White House also issued a fact sheet<\/a> that stated: \u201cLethal force must only be used to prevent or stop attacks against <\/i>U.S. persons, and even then, only when capture is not feasible and no other reasonable alternatives exist to address the threat effectively.\u201d While that sounds like a pretty imposing set of hurdles to leap, all of the \u201clegal\u201d criteria are determined in secret by the White House with advice from the Justice Department, but with no oversight or accountability.<\/p>\n

Even then, it turns out that the supposedly tortured deliberations of the administration are not really necessary. Despite the president\u2019s criteria, according to<\/a> an unnamed administration official quoted by the Associated Press, Obama could make an exception to his policy and authorize the CIA to strike on a one-time <\/i>basis, no matter what the circumstances. One way or another, it is Obama who decides who to kill and when.<\/p>\n

Short-Term Questions<\/b><\/p>\n

At this point, it\u2019s unclear just why the Obama administration leaked its plans in reference to this errant American abroad. After all, official after official has insisted that Edward Snowden\u2019s revelations of secret NSA documents have caused terrorists to change their communication tactics<\/a>, yet the one American up to no good somewhere in the terrorist world apparently has not done so in response to the leak about his potential fate, and will remain locatable whenever needed as a target. And yet giving notice of a possible attack in advance in the media would, on the face of it, seem both counterproductive and an invitation to the very barrage of criticisms leveled by key officials at Snowden. After all, under the circumstances, an American connected with al-Qaeda wouldn\u2019t exactly have to be a Bond villain to decide to change his behavior and his location, stay indoors or outdoors more, keep off his phone for a while or trade it in for another.<\/p>\n

Could the administration leak have been a trick to flush the bad guy out, causing him to panic and run? Was it an elaborate ruse designed to induce widespread concern in al-Qaeda about the liabilities of having American compatriots? Was it a bone thrown to Republicans otherwise eager<\/a> to paint the president as weak? Could it have been some kind of geopolitical muscle tussle with once compliant but now more assertively anti-drone Pakistan? Or could the leak have been a PSYOP<\/a> on the American people, an attempt to manipulate us into feeling better about government decisions to kill American citizens by revealing the deliberative and heart-wrenching process<\/a> Obama goes through?\u00a0 Or could it simply have been an attempt to normalize such acts for us, to make them part of the understandable everyday background noise of a dangerous world?<\/p>\n

The answer is: we don\u2019t know.\u00a0 Not yet anyway.<\/p>\n

Not the First Time<\/b><\/p>\n

The Obama administration admits to killing four Americans<\/a> as part of its war on (or is it \u201cwar of\u201d?) terror. We\u2019ll pause here a moment for you to contemplate whether there could have been other, undocumented killings of the same sort awaiting the revelations of some future Edward Snowden or Chelsea Manning.<\/p>\n

On May 7, 2011, a U.S. drone fired a missile in Yemen aimed at American citizen and key terror suspect Anwar al-Awlaki. The missile blew up a car with two other people in it, quickly labeled \u201cal-Qaeda operatives\u201d after we killed them.<\/p>\n

 <\/p>\n

Such collateral killings should be no surprise. The inaugural article<\/a> by Glenn Greenwald and Jeremy Scahill at their new media venture notes that the National Security Agency regularly identifies targets for CIA assassinations based on metadata analysis and cell-phone tracking. Rather than confirming that target\u2019s identity, the CIA is evidently ready and willing to blow a suspect away based on the location of a mobile phone he assumedly is using. In other words, people can be killed because they borrowed the wrong cell phone. (So much for a deliberative process.)<\/p>\n

The U.S. had tried to kill al-Awlaki before, including in the Bush years \u2014 and missed. In justifying one of these assassination attempts, Obama\u2019s counterterrorism chief, Michael Leiter, claimed<\/a> that al-Awlaki actually posed a bigger threat to the U.S. \u201chomeland\u201d than Osama bin Laden, albeit without explanation. No matter, they finally got their man.\u00a0 A follow-up strike killed al-Awlaki, and another soon after obliterated his teenage son, also in Yemen. Though no one argues that the boy was in any way linked to terrorism and no administration official has bothered to explain just why he was targeted, former White House press secretary Robert Gibbs did comment that the killing was justified<\/a> as he \u201cshould have had a more responsible father.\u201d<\/p>\n

Couldn\u2019t Happen Here?<\/b><\/p>\n

Though the president and his officials go to great pains to indicate that such assassinations are only going to happen abroad, there is nothing in the carefully worded distinctions made by the White House to preclude them at home. As a start, in his criteria for killing someone extrajudicially, the president claims there is no difference between an American citizen terrorist and a foreign terrorist. A careful look back at the statements of two government officials makes it clear that thought has already gone into the question of bringing the killings home.<\/p>\n

Remember the testimony<\/a> then-FBI Director Robert Mueller gave before a House subcommittee in 2012? When asked point-blank if the president could order the killing of an American in the United States, he replied \u201cUh, I\u2019m not certain whether that was addressed or not\u2026 I\u2019m going to defer that to others in the Department of Justice.\u201d Mueller, of course, had the option of saying flat-out, \u201cNo, no, of course the president can\u2019t order a hit on an American here in the U.S. where the full judicial system, Constitution, and due process protections exist! Are you mad?\u201d<\/p>\n

The truth emerged only in 2013 when Senator Rand Paul asked point-blank<\/a> whether the president could authorize lethal force, such as a drone strike, against an American citizen in the United States. Attorney General Eric Holder fired back that while the question was \u201chypothetical,\u201d the real-world answer was yes. Holder said he could imagine \u201can extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the president to authorize the military to use lethal force within the territory of the United States.\u201d<\/p>\n

It\u2019s easy enough, in fact, to imagine the sort of scenarios that might lend themselves to such an act: a ticking time bomb, a killer believed to have anthrax and on the loose, a suspected dirty-bomb maker in a desolate location, terrorists with a bus full of children on a mountain top. Imagine a slippery slope and\u2026 presto! You\u2019re there.<\/p>\n

They\u2019ve thought about it. They\u2019ve set up the legal manipulations necessary to justify it. The broad, open-ended criteria the president laid out for killing suspected terrorists exposes the post-Constitutional stance our government has already prepared for. All that\u2019s left to do is pull the trigger.<\/p>\n

Nostalgia for the Fifth Amendment<\/b><\/p>\n

It\u2019s still possible to remember, almost nostalgically, how the Fifth Amendment<\/a> used to guarantee Americans due process. The key phrase was indeed that \u201cdue process.\u201d It meant the government could not take away your property or imprison or execute you without first allowing you a chance to defend yourself. You would have your day in court with a lawyer and a jury of your peers to make the final decision. This would all be quite public and the people involved would be held accountable for their actions. The Fifth was meant by those who wrote it as a check on the ultimate in government excess: the purposeful taking of citizens\u2019 lives. Today, it increasingly seems an artifact of a quaint past, as seemingly lost to history as the corded phone or manual typewriter.<\/p>\n

Attorney General Eric Holder publicly rewrote<\/a> the Fifth Amendment in 2012, declaring, in a veiled reference to al-Awlaki, \u201cthat a careful and thorough executive branch review of the facts in a case amounts to \u2018due process\u2019 and that the Constitution\u2019s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a \u2018judicial process.\u2019\u201d In other words, in a pinch, skip the courts.\u00a0 In this way, Holder gave us a peak behind the White House curtain, making clear that the president\u2019s personal and secret decision to kill an American, perhaps made over morning coffee, was, in his opinion, good enough to make everything legal.<\/p>\n

The due process question Holder dismissed so casually still looms large over al-Awlaki\u2019s murder. Prior to the killing, attorneys for his father tried to persuade a U.S. District Court to issue an injunction preventing the government from killing him in Yemen. A judge dismissed<\/a> the case, ruling that the father did not have \u201cstanding\u201d to sue and that government officials themselves were immune from lawsuits for actions carried out as part of their official duties.<\/p>\n

This was the first time a father had sought to sue the U.S. government to prevent it from killing a son without trial. The judge did call the suit \u201cunique and extraordinary,\u201d but ultimately passed on getting involved.\u00a0 He wrote instead that it was up to the elected branches of government, not the courts, to determine if the United States has the authority to extrajudicially murder its own citizens.<\/p>\n

The judge\u2019s position was revealing of our moment. The extrajudicial killing of an American citizen seemed to him to be nothing but a political question to be argued out in Congress and the White House, not something intimately woven into the founding documents of our nation. The judge was not alone in his characterization of the problem. Mike Rogers, chair of the House Intelligence Committee, complained<\/a> that the killing of more terror suspects in a similar manner has been held back by \u201cself-imposed red tape.\u201d<\/p>\n

There are, however, no footnotes in the Fifth Amendment, no caveats, no secret memos, no exceptions for terrorism, mass rape, child torture, or any other horror the U.S. has confronted in its 238 years of existence. Such addendums to the Fifth were unnecessary, because in the beautiful preciseness of Lincoln\u2019s phrasing<\/a> at Gettysburg, ours is \u201ca government of the people, by the people, for the people,\u201d one made up of us, beholden to us, and whose purpose is to serve us.<\/p>\n

Such a government would be incapable of killing its own citizens without due care, debate, and open trial. Those actions would violate the sacred convent of trust between a people and their government in a democracy, the \u201cconsent of the governed<\/a>,\u201d and delegitimize the government itself.<\/p>\n

That last point is worth a closer look, because it makes clear what murder-by-decree really represents in post-Constitutional America. The phrase \u201cconsent of the governed\u201d first appears in the Declaration of Independence, the document by which the United States declared itself no longer under the governance of the British king. The Declaration makes clear that a government\u2019s moral right to use state power is only justified and legal when derived from the people over which that power is exercised. Such consent is the opposite of the divine right of kings<\/a>, the philosophy under which the British ruled colonial Americans.\u00a0 Its foundational principle was obedience to government and its edicts and decisions, even on issues of life and death, as a religious and moral obligation.<\/p>\n

Following the more philosophical Declaration of Independence, the Bill of Rights was a practical exercise written to address directly the specific injustices of rule by royal decree. By turning its back on key elements of our founding, Washington, it seems, has brought us full circle.<\/p>\n

Life in Post-Constitutional America<\/b><\/p>\n

These days in the pseudo-debates about drone killings in the mainstream media, such changes are treated as matters of no great significance. On the day that the president\u2019s latest plans for the murder of a fellow citizen in the distant tribal backlands of Pakistan first appeared, they caused little stir. The headlines were instead dominated by Olympic gossip and an impending ice storm in Atlanta. Killings extrajudicially mandated by the White House? The Fifth Amendment?\u00a0 Maybe if the target were Shaun White in Sochi, more people would have cared.<\/p>\n

At the moment, we are threatened with a return to a pre-Constitutional situation that Americans would once have dismissed out of hand, a society in which the head of state can take a citizen\u2019s life on his own say-so. If it\u2019s the model for the building of post-Constitutional America, we\u2019re in trouble. Indeed the stakes are high, whether we notice or not.<\/p>\n

The question is: How far will post-Constitutional America stray from the nation so conceived in the Declaration of Independence and the Bill of Rights? Because in the twenty-first century, the midnight knock on the door may come not from the King\u2019s men, but from the sky.<\/p>\n

Peter Van Buren, a <\/i>TomDispatch regular<\/i><\/a>, blew the whistle on State Department waste and mismanagement during Iraqi reconstruction in his first book, <\/i>We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People<\/a>. A <\/i>TomDispatch regular<\/i><\/a>, he writes about current events at his blog, <\/i>We Meant Well<\/i><\/a>. His next book is <\/i>Ghosts of Tom Joad: A Story of the #99Percent<\/a>.<\/i><\/p>\n

Follow TomDispatch on Twitter and join us on <\/i>Facebook<\/i><\/a> or <\/i>Tumblr<\/i><\/a>. Check out the newest Dispatch Book, Ann Jones\u2019s <\/i>They Were Soldiers: How the Wounded Return From America\u2019s Wars \u2014 The Untold Story<\/a>.<\/i><\/p>\n

Copyright 2014 Peter Van Buren<\/p>\n

Mirrored from Tomdispatch.com<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

PETER VAN BUREN, INFORMED COMMENT: Drone attacks on U.S nationals overseas could be a portent of things to come at home. <\/p>\n","protected":false},"author":70,"featured_media":30612,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[154,692,82,60,135],"tags":[169,423,16717,18122,3102,3182,12714,18125,9168,18123,91,16612,16483,2317,359,18286,18124,1808,18290,18126,18302,3849,17267,2099,18313],"_links":{"self":[{"href":"https:\/\/mideastposts.com\/wp-json\/wp\/v2\/posts\/30610"}],"collection":[{"href":"https:\/\/mideastposts.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mideastposts.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mideastposts.com\/wp-json\/wp\/v2\/users\/70"}],"replies":[{"embeddable":true,"href":"https:\/\/mideastposts.com\/wp-json\/wp\/v2\/comments?post=30610"}],"version-history":[{"count":3,"href":"https:\/\/mideastposts.com\/wp-json\/wp\/v2\/posts\/30610\/revisions"}],"predecessor-version":[{"id":30614,"href":"https:\/\/mideastposts.com\/wp-json\/wp\/v2\/posts\/30610\/revisions\/30614"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/mideastposts.com\/wp-json\/wp\/v2\/media\/30612"}],"wp:attachment":[{"href":"https:\/\/mideastposts.com\/wp-json\/wp\/v2\/media?parent=30610"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mideastposts.com\/wp-json\/wp\/v2\/categories?post=30610"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mideastposts.com\/wp-json\/wp\/v2\/tags?post=30610"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}