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Destroying Rights Guaranteed since the Magna Carta
Here are the Department of Justice’s legal arguments granting permission to the president to assassinate Americans if they are connected with al Qaeda, essentially destroying rights guaranteed citizens since the Magna Carta— right to life, right to a trial, right to due process.This will be one of the documents historians study years from now while chronicling the end of the American experiment in democracy. Those historians will conclude that no foreign power defeated us; we ate ourselves.
Torture as American Policy
The release of these legal arguments comes on the same day that the Open Society Foundation detailed the CIA’s effort to outsource torture since 9/11 in excruciating detail. Known as “extraordinary rendition,” the practice concerns taking detainees to and from U.S. custody without a legal process — think of it like an off-the-books extradition — and often entailed handing detainees over to countries that practiced torture. The Open Society Foundation found that 136 people went through the post-9/11 extraordinary rendition, and 54 countries were complicit in it. The U.S. worked with Iran to take new prisoners, and sent others into Assad’s Syria for torture.
Justification to Ignore the Constitution
According to MSNBC, the undated DOJ memo is entitled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force.” It was provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and not discussed publicly. The white paper was represented by administration officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department’s Office of Legal Counsel. The administration has refused to turn over to Congress or release those more detailed memos publicly, or even to overtly confirm they existence.
In the DOJ white paper, it is determined that in order for the United States of America to kill one of its own citizens, all that is needed is that “an informed, high-level official of the U.S. Government has determined that the targeted individual poses an imminent threat of violent attack against the United States,” and that capture is not feasible and of course that the laws of war are followed. For those tracking the amount of blood on the president’s hands, note that no review takes place, no due process, no jury, no anything, just death because the president (or, technically, any anonymous informed high-level official) says kill that man, woman or child. This is considered by the Department of Justice to be “a lawful act of national self-defense.”
DOJ specifically states that if the targeted individual had rights under the Fourth Amendment and the Due Process Clause, such rights would not “immunize him from a lethal operation.”
The Fourth Amendment is a now-quaint part of the U.S. Constitution that guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause. The Due Process Clause is contained in the Fifth and Fourteenth Amendments to the United States Constitution. It once acted as a safeguard from arbitrary denial of life, liberty, or property by the Government. The clear intent of Due Process, appearing twice in the Constitution, is to assure Americans that the government cannot act against them outside of a judicial process, a set of laws to protect against the government having too much power.
The Department of Justice also concludes that the murder of an American Citizen under such circumstances “would not violate certain criminal provisions prohibiting the killing of U.S. nationals outside the United States; nor would it constitute the commission of a war crime or an assassination prohibited by Executive Order.”
It was found that “the realities of the conflict and the weight of the government’s interest in protecting its citizens from an imminent attack are such that the Constitution would not require the government to provide further process to such a U.S. Citizen before using lethal force.”
The document notes that “the condition that the operational leader present an imminent threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” Instead, DOJ asserts a “broader definition of imminence.”
Neatly, to conclude their argument, the Department of Justice states that due to the unique circumstances of the conflict with terror, “there exists no appropriate judicial forum to evaluate these constitutional considerations.”
The End of the Experiment
One is left literally gasping for air, pale with anger, wondering what we have become in America. Have we stooped to the level of the Nazi Nuremberg Laws, which in precise legalese justified the Holocaust? Have we reached the point where we believe we must destroy our beautiful Constitution in order to save it?
Of what value anymore is the oath all Federal employees take, the same oath Obama took on the steps of the Capitol last month, promising to defend and uphold the Constitution? What value is that oath when with a memo he deems that that Constitution does not apply when there is killing to be done abroad. What type of nation declares war on its own citizens?
Those questions are left rhetorical for now, but this much is now true: the president of the United States has granted himself legal justification to ignore the most basic tenet of freedom– the right to live– and empowered himself to kill his own citizens without any form of due process or judicial procedure. It is an easy way for a writer to grab headlines, claiming such-and-such is the end of our rights, such as the limits imposed on habeas corpus, online spying, no-fly lists, restrictions on free speech, etc. But now we have truly approached the edge, because when you are dead, killed extra judicially by your own government, well, no other theoretical rights really matter anymore.
Abu Graid, Guantanamo, the CIA secret prisons, imprisonment without trial of Bradley Manning, those are not aberrations or exceptions– they were practice. These are indeed the darkest of days for our democratic experiment.
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Rich Bauer said...
1“These are indeed the darkest of days for our democratic experiment.”
PVB,
It’s always darkest before the dawn, and we are so lucky to be Witnesses to it all.
02/6/13 2:30 PM | Comment Link
meloveconsullongtime said...
2“Have we stooped to the level of the Nazi Nuremberg Laws, which in precise legalese justified the Holocaust?”
Actually, America has sunk lower than that. During most of the years of the Third Reich, and especially in the early years including when that law was made, the government and its courts were scrupulous about following the letter of the law. What today’s American Empire’s executive branch is doing is the opposite of that, simply disregarding the letter of the law and granting itself total arbitrary power.
More simply, throughout most of Hitler’s rule, he did not claim total arbitrary power. He and his regime were scrupulous in following their own laws to the letter, thus the enforcement of their undemocratic laws was at least predictable. But Obama’s rules don’t even have self-defined boundaries.
By the way, the Nuremberg Laws, evil as they were, didn’t set any legal foundation for the Holocaust. The latter was intended to be kept secret precisely because it violated the laws – and yes the morals – of Germany and its people. Thus bloody Himmler’s devious speech to the SS after the Holocaust began:
“Most of you know what it means to see a hundred corpses lying together, five hundred, or a thousand. To have gone through this and yet – apart from a few exceptions, examples of human weakness – to have remained decent fellows, this is what has made us hard. This is a glorious page in our history that has never been written and shall never be written.”
…now THAT sounds more like Obama’s regime!
http://www.historyplace.com/worldwar2/holocaust/h-posen.htm
02/6/13 2:31 PM | Comment Link
Andrey said...
3If that is “the greatest force of good on Earth”, I’d rather sign up with the “bad guys”.
02/6/13 3:07 PM | Comment Link
John Poole said...
4I’m with PVB. I’m hopeful. It might still become much much darker before a new ethos is seen as necessary for this nation to recover.
02/6/13 9:22 PM | Comment Link
John Poole said...
5Maybe there is a need to create a new position in the Executive branch. HLITO (High Level Informed Target Official). I’m not sure if it should be an appointment or an office that requires an actual election. It wouldn’t be hard to fill the spot.
02/6/13 10:22 PM | Comment Link
John Poole said...
6Mr. Obama amusingly designates targeted assassination a continuance of the emperor’s thumbs down gesture except that the targets don’t even know they’ve been assigned to a floating coliseum for sport. Obama is clearly a pathological fellow but will end up a minor figure during the last days of empire.
02/6/13 11:11 PM | Comment Link
JVC said...
7All,
Playing a little bit devil’s advocate here and pending my own research into the rules of war which I believe are covered by the Geneva Convention(s)…
The 4th amendment covers the issues domestically of “Use of Force” by the government to preserve and maintain order based on the “Seizure” of someone i.e. to kill someone (a use of force) is to seize them, permanently. A “seizure” in the law enforcement sense is a temporary detention i.e. traffic stop up through arrest and lethal force i.e. killing a suspect. There are several supreme court rulings that govern seizures, most notably Graham vs. Conner, but in any case what’s critical to allowing government entities to seize someone is the “Reasonability” of the seizure based upon reasonable suspicion or probable cause, the verbiage of which is derived directly from the 4th Amendment. Note, it requires probable cause to gain a warrant, it takes only reasonable suspicion to conduct an investigative stop:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
My understanding of the rights promulgated in the US Constitution is that they apply to all people, citizens or not, residing, visiting, living on US territories or possessions.
For those not residing in the aforementioned jurisdictions… the US Constitution does not apply. It shouldn’t if it’s not US territory. My guess is this is the rationale behind Guantanamo as a holding center for individuals captured in hostilities overseas (enemy combatants or whatever contemporary jargon dictates). DoD is playing semantics as per 18 USC § 7 – Special maritime and territorial jurisdiction of the United States Guantanamo would seem to fall under US constitutional guarantees. But anyway…
If US citizens are promulgating war against the US government from overseas and outside of US jurisdictions, I am not sure, from my background, schooling and training, that those individuals are eligible for the rights and privileges engendered by the US Constitution.
The threshold necessary to stop, investigate, indict and convict people in the US do not apply overseas, particularly in a war zone.. i.e. a burden of proof. What a wonderful concept! Reasonable suspicion, probable cause, a preponderance of evidence and proof beyond a reasonable doubt… Wonderful for the accused here, plus the burden of proof gets placed on the accuser… I like that! But in a theater of war does the soldier eyeing a guerilla with an AK behind a rock need to arrive at a preponderance of evidence before shooting the guerrilla? Does a drone pilot in Nevada piloting a drone over Pakistan need a court order to send a Hellfire into convey of suspected militants? And then what if that convoy of militants turns into a wedding reception?
I am not a constitutional lawyer but it seems to me words matter (contrary to what Bill Clinton would say) and there are big differences between civil laws, criminal laws and the “laws” of war.
The use of drones, at present, seems to be directed against persons based and operating far outside of US jurisdictions whose intent and actions are solely to harm and injure the United States using weapons of war.
Does the US have the right to defend itself? Unequivocally, yes. Any sovereign does.
How then does it proceed?
Here I may splinter from the readership of this blog, maybe not, in that I do not believe AQ and other groups constitute a criminal challenge to the US. They are non-state actors whose primary aspiration is our destruction. Though they are engaged in criminal enterprises and pursuits and on many levels, are criminal entities… vis a vis the US, they are enemy organizations who I believe are best dealt with by the means they themselves espouse… massive, military levels of force.
In my humble opinion… this whole mess was catapulted through the 1990’s based on the Clinton administration’s treatment of AQ and other groups as criminal enterprises/activites. WTC 1993, Kobar Towers, the African embassy strikes and USS Cole were all acts of war. You don’t send the FBI. You send the Marines.
I don’t disagree that this is murky stuff. And I don’t particularly trust our government to get the response right or to in anyway possess the sort of acumen and nuance often evinced by the Israelis or Great Britain in their actions against similar groups.
But we must act and sending FBI teams into the heart of Africa, central Asia, etc., is probably not the way to do it.
Both Presidents Lincoln and F. D. Roosevelt suspended our civil liberties here in the US during their time of conflict. But their conflicts ended and our rights were re-instated. The enormity of danger in this conflict is that there is no end in sight.
02/7/13 12:01 AM | Comment Link
wemeantwell said...
8The problem is that we are not at war with anyone, we are at best at war with an idea, that the US seeks the destruction of Islam. Our actions, such as these killings, do not weaken the idea, our enemies, but instead add credibility to their argument and aid in their recruitment. We cannot kill them all, but we can destroy ourselves our values and our economy by foolishly trying. We have applied the full resources of the worlds most powerful military for twelve years with at best unclear progress, in case you wanted proof of my theory.
02/7/13 12:15 AM | Comment Link
JVC said...
9@ wemeantwell… I don’t disagree with you on this.
Not to sound clichéd here but we are having a clash of civilizations. I will posit that in the areas of personal freedom, the arts, sciences, religion and many other areas of human endeavor, I would prefer our civilization to that which currently exists from western Africa all the way to east Asia i.e. contemporary Islamic society. So would the members of those societies gauging from the number of Islamic émigrés residing in Europe and abroad.
There are many issues to be had, increasingly so, with the European, expansionist, consumer model that has embodied US policy and thinking since probably the Jacksonian era. All of this is an inheritance of the western European model and for most of the post-medieval era, world history has seen a collapse of aboriginal models (Africa, The Americas, Australia) in favor of the western “corporate” model created and exported by the Europeans.
Much of this is traceable to 1492, on many levels, and aboriginal societies, though not w/o problems of their own, were much more congruent with living on this planet than are the progenitors of the western European model which can’t stop consuming and destroying everything in their path to get…more…stuff.
At this late juncture pretty much everyone is onboard with the European model. The communist Chinese are the biggest capitalists on the planet… the Arabs with all their petroleum wealth have squandered it on wars, personal jumbo jets and buying out Al Gore.
The descendants of the aboriginal model live in displacement and eviction and can be seen on American Indian reservations, displaced persons camps in Syria and huddled in villages in Africa.
I don’t believe that the US seeks the destruction of Islam at all. I do believe the US demands adherence and servility to its system of economic and socio/political activity which is increasingly a sort of hyper-capitalistic dead end in which “He with the most toys wins.” This system is unsustainable, immoral and just plain unpleasant to live in as it is a relentless 24/7 toil which seems to be leaving most everyone in the dust with the exception of the corporate CEO types and their facilitators.
I believe the US wants the Islamic societies to work within this framework where their primary contribution will be oil to fuel the machine. Those states endowed with the reserves to participate in this framework and able to curtail their more extremist tendencies i.e. Saudi, Qatar, et al., cater to The System… The American diplomats, corporate entities, sheiks and emirs are all making off handsomely, of course behind closed doors there are epithets of “Raghead, Haji, Harram Amerikai” and the like but business goes on.
True believers who espouse sharia, practice Sufism, and what have you see the hypocrisy of their leadership and the banality of American culture and American desire to subjugate the caliphate (Maghreb, Andalucía, Sahel, Levant, Arabia, etc.,) into a sort of Disneyland cum Conoco station and resent it, among other things. I don’t blame them. I would too. I don’t think that killing more Muslims strengthens the argument for jihad as I think we are so haram on so many levels, in the eyes of many of that persuasion, that at this juncture we will be deserving of what we get.
With that said… fundamentalist Islam does exist in its Sunni and Shia manifestations and does pose an immediate and existential threat to western society, particularly western urban areas where a lot of people can be killed at a time, relatively quickly. As I was fond of saying in the 9-11 era, we can agree to disagree but we cannot have jumbo jets flying into our buildings.
“We have applied the full resources of the worlds most powerful military for twelve years with at best unclear progress, in case you wanted proof of my theory.”
To this I would say… the fact that there hasn’t been another 9-11 is about all we can hope for. And that we have achieved. Despite what I wrote in my prior missive, there is a role for law enforcement in this struggle and that is in the realm of financial investigations and domestic security. The sheer number of young jihadists killed thus far, the bombing campaigns, the assassinations, the invasion of Afghanistan, the intelligence gleaned, and most importantly, the ongoing covert war behind the scenes has possibly led to a near total neutralization of a group like AQ’s ability to project war into the US or European interior. I think that’s all we can hope for and I don’t think that’s unclear progress. I think it’s very clear that active war fighting, intelligence and law enforcement activity has led to a massive diminishment in AQ’s ability to project warfare abroad. Certainly from where they were on 9-10-01.
I do believe the onus is moving upon us at this time to begin a dialogue on where a post-modern, post-Christian hyper-capitalist system takes us. When is enough, enough?
Fundamentalist Islam and fundamentalist Capitalism are both toxic ideologies. Here in the US we are selling ourselves out, no one really sees it yet, I think the Occupy movement is a sounding of the alarm but too many are still vested and doing okay to buck the trend.
In my own personal, political and social development I had to learn that there are no utopias on this Earth and that all human endeavor is fucked from the outset as humans are not perfect. Christians call it “broken” biologists call it “defective”… no human system works perfectly all the time and most don’t work at all.
1776, 1787 and the foundation of the United States and the US Constitution with its rights and guarantees of personal freedom were unprecedented for all time. Though informed by the Magna Carta and other developments in the concept of human liberty, what we have inherited here is all the more precious once you realize that what we have is so rare.
What we do now with it is up to us. This forum is a critical part of that process and an insurance that the freedoms expounded in that document and desired by so many, including the jihadists we’re killing with our drones, does not go the way of the aboriginal peoples we mowed over to get where we are.
Don’t you love the irony of it all?
02/7/13 1:26 AM | Comment Link
John Poole said...
10JVC- Please keep your comments shorter. Perhaps you should think about starting your own site? That there is a civilizational clash is old news. There has always been an ongoing civilizational clash. Religious clashes alone within the various Christian denominations in the last 500 years have led to most likely millions of deaths.
Another “9/11” wouldn’t be a calamity in terms of homeland citizens lives lost. The USA has apparently killed hundreds of thousands of foreign civilians while waging war against actual enemy combatants without raising an eyebrow. At that pace we could lose tens of thousands of civilians in a war of attrition and still “win”. Are we prepared for those types of losses? If not, why not? What makes us so special that we aren’t willing to sustain large civilian fatalities in the mother of all civilizational clashes?
02/7/13 3:40 AM | Comment Link
meloveconsullongtime said...
11Oh please spare the world that shitty little term, “enemy combatants”. It’s meaningless. It has zero legal significance. It was concocted by sophomoric whores for the Empire to cover murdering and torturing anyone tney choose.
It sounds like something a sixth-grader would make up.
02/7/13 5:22 AM | Comment Link
Jhoover said...
12Apologies been out of the subject, but just to update you that Paul Bremer shoe while delivering a lecture in London today 2013 while giving his speech by an Iraqi living in Lodon?
here & here (Arabic Text)
02/7/13 9:29 AM | Comment Link
John Poole said...
13For melove…….. I purposely use empire speak for sardonic effect. I’m open for any suggestions of a more fitting term or definition of America’s current boogie man/men. Perhaps “injun” might work since it does conjure America’s early ethos of wanting to eliminate those who are “different”.
02/7/13 2:24 PM | Comment Link
meloveconsullongtime said...
14“I’m open for any suggestions of a more fitting term or definition of America’s current boogie man/men”
How about “the unevolved”.
02/7/13 3:09 PM | Comment Link
John Poole said...
15melove……… Nice, I’ll start using it immediately.
02/7/13 3:29 PM | Comment Link
pitchfork said...
16Meanwhile, the fight continues this morning on the NDAA.
http://dissenter.firedoglake.com/
Unfuckingbelievable.
02/7/13 3:47 PM | Comment Link
pitchfork said...
17JVC said..amonst other things..
quote:”Don’t you love the irony of it all?”unquote
Wow, that post contained so many big words it took me a half hour to look them up. 🙂
Great post though.
meloveconsullongtime said…
quote::Oh please spare the world that shitty little term, “enemy combatants”. It’s meaningless. It has zero legal significance. It was concocted by sophomoric whores for the Empire to cover murdering and torturing anyone tney choose.
It sounds like something a sixth-grader would make up.” unquote
BWAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!
shitty little term.
concocted by sophomoric whores for the Empire
BWAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!
pleas stop. yer killen me.
02/7/13 4:00 PM | Comment Link
pitchfork said...
18I had a dream last night that all that has happened since 9/ll was just a nightmare within a dream.
And then…I woke up..to the real nightmare… on steroids. Bartender…I’ll start with one scotch, one bourbon, one beer.
shheeeezus.
02/7/13 4:20 PM | Comment Link
John Poole said...
19For melove……. The unevolved term really needs a clarifying prefix- the domestically (homelanders) unevolved and the off shore, foreign or just plain turrurist unevolved. There probably isn’t much difference between the two types if you brain scanned them.
02/7/13 8:19 PM | Comment Link
John Poole said...
20Sory melove for riffing on your term but to further distinguish the homelanders unevolved from the foreign based unevolved I should use the term “uninvolved unevolved”.
02/7/13 11:04 PM | Comment Link
pitchfork said...
21John Poole said…
20
“Sory melove for riffing on your term…”
Hahahaha! Riffing. I like it. Are you a guitarist by chance?
02/8/13 12:59 AM | Comment Link
meloveconsullongtime said...
22The riffs are goood. Not to break the improvs but just to clarify, I was thinking in terms of the Empire’s maniacally intolerant state religion of “progress”, and all who aren’t on board with the Empire’s program of world revolution – basically meaning making the world safe for Lesbian Scout Leaders with strap-ons – are doomed for extermination.
02/8/13 6:51 AM | Comment Link
meloveconsullongtime said...
23Next up, “house to house public opinion polls”, Idi Amin style:
http://www.youtube.com/watch?v=P8oN-kPPpqE
02/8/13 9:16 AM | Comment Link