The sun never sets

It seems the sun never sets on the long arm of the U.S. Marshal. It can snatch a war criminal from his hideaway wherever it may be, provided he’s the right kind of war criminal, of course, the one we’re hunting, not the one we’re selling weapons to. It can extradite awkward gadfly internet publishers to Sweden to face cosmetic rape trials. It can land helicopters in your backyard and put a neat little hole through your forehead before you can say “Allah’u’akbar”. It can send drones deep into neutral or even allied territory to decimate a village, blow up a wedding feast or execute an entire meeting of village elders gathered together to discuss measures against sheep rustling. And if it means one less gun-toting, hellfire-preaching cleric with a YouTube account, it can even whack a single stray Toyota van on a back road in Yemen. Meanwhile, at the other end of that arm there stands, not some nameless CIA operative with a face pasty from too much secrecy, but the tall, elegantly suited, manly figure of the Commander in Chief, President Barack Obama himself.

The friend of my enemy is my enemy

According to a speech given in March at North-Western University School of Law, by Eric Holder, the current U.S. Attorney General, the Obama administration reserves the right to kill enemies of the United States, whether they be foreign or U.S. citizens, without judicial review. It’s not as if we didn’t already know this, what is exceptional is having it confirmed by a senior official through open channels. Hina Shamsi, director of the National Security Project for the ACLU (American Civil Liberties Union), said at the time that Holder’s speech “raises profound legal and moral questions”, almost as if those questions were not raised as long as the policy remained covert.

The ACLU reaction was, however, sharpened when another senior official, Defense Department counsel Jeh Johnson this time, speaking only last month at Yale Law School, a preferred location for floating trial legal balloons, insisted that the President’s authority in such cases is “without geographic limitation” and that “U.S. citizens do not enjoy immunity” from extra-judicial killings. The doors are now clearly wide open for massive abuses of executive power by any future leader, claims the ACLU, particularly since there is no prior disclosure on these cases, neither is one permitted to discuss them in a court of law for reasons of national security.

The enemy of my enemy is my friend

The ACLU would quite reasonably like to know why the government is “permitted to declare in court that discussing a program would jeopardize national security, when it has already disclosed the same program” in public speeches at two renowned law schools. A further argument that friendly agents would be compromised by disclosure might have been valid before, but no longer. “The government has told the courts that its targeted killing program is so secret that even its existence can’t be acknowledged, but that proposition can no longer be taken seriously,” concludes Ms Shamsi. “If the Attorney General can discuss the targeted killing program at a law school, then the administration can surely release the legal memos it uses to justify its claimed killing authority, and also defend its legal justifications in court.” None of this need involve the names of non-American friendly operatives or of those in covert service, and besides, the prosecution of Pakistanis who helped trace Osama bin Laden and the feeble non-defence of these agents put up by the U.S. administration in a couple of milk-toast memos, has definitely poured scorn on that argument.

Further muddying the waters is a more recent “clarification” by Attorney General Holder: “Some have called such operations assassinations,” he says. “They are not, and the use of that loaded term is misplaced” – Gosh, Mr Holder, you mean those targets are still alive? They’ve been zapped with a stun-gun and beamed over to Roswell, maybe? – “Assassinations are unlawful killings” – Well yes, they are actually, Mr Holder, but do go on. I imagine you’re now going to tell us that these are not ‘unlawful killings’ but ‘extra-judicial executions’ and that there’s a difference, even if I don’t get it, because you are doing the killing, not some barbaric little rogue state – “The U.S. government’s use of lethal force in self defence” – ah yes, that wedding feast was VERY loud – “against a leader of al Qaeda or an associated force presenting an imminent threat of violent attack would not be unlawful, and therefore would not violate the Executive Order banning assassination or criminal statutes.”

Let’s just give you a few pieces from the timeline on this particular ‘executive power’:

February 18, 1976: President Ford issued Executive Order 11905, barring U.S. personnel from assassination plots – “Prohibition on Assassination: No employee of the United States Government shall engage in, or conspire to engage in, political assassination.”

January 26, 1978: President Carter renewed the ban with Executive Order 12306 – “Prohibition on Assassination: No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.   Restrictions on Indirect Participation in Prohibited Activities: No agency of the Intelligence Community shall request or otherwise encourage, directly or indirectly, any person, organization, or government agency to undertake activities forbidden by this order or by applicable law.”

December 4, 1981: Executive Order 12333, signed by President Reagan continued the ban, stating under section 2.11: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”

When covert goes overt, does that make it right?

These measures, however, did not prevent the existence, throughout the 1970s and 1980s of a “Special Activities” branch of the CIA for the covert elimination of naughty boys. I do not know whether the Presidents of the period signed off on those executions, I rather doubt it. Thus it is to Mr Obama’s credit that he has since confirmed signing every extrajudicial killing order of individuals on his terrorism A-list himself. Because, in January 23, 1995, President Clinton signed Executive Order 12947, which approved the drawing up of such a list, thus re-opening the door to the targeting of individuals for elimination by lethal force. By signing the death warrants, for that is what they are, which land on his desk in the oval office each time a listed target is located, Mr Obama is telling us that the buck stops here. Except that it doesn’t, it stops somewhere on the road to Damascus when a 17-year old kid and his radical uncle are vaporized in their old Subaru. No real responsibility touches the President, despite his signature, because he has already freed himself by executive order from the constraints of answering to a court or even to the Congress for his actions.

Apologists for Obama, and I admit to having been one on occasion, argue that this is just part of the “War on Terror” declared by his predecessor Mr Bush, a war into which he has been co-opted. They will claim legality for his actions under the Homeland Security Act. However, former New Jersey Superior Court Judge Andrew Napolitano, who is highly respected for his general probity, despite his closeness to the New Right libertarian agenda, challenges the constitutionality of that Act and recently called Barack Obama’s kill list “blatantly unconstitutional”. I offer large sections of his argument at this point, since the Judge’s opinion is both cogent, pertinent and well worth the read:

“We have known for some time that President Obama is waging a private war. By that I mean he is using the CIA on his own — and not the military after congressional authorization — to fire drones at thousands of persons in foreign lands, usually while they are riding in a car or a truck. He has done this both with the consent and over the objection of the governments of the countries in which he has killed. He doesn’t want to talk about this, but he doesn’t deny it. How chilling is it that David Axelrod — the president’s campaign manager — has periodically seen the secret kill list? Might this be to keep the killings politically correct? Can the president legally do this? In a word: No.

The president cannot lawfully order the killing of anyone, except according to the Constitution and federal law. Under the Constitution, he can only order killing using the military when the U.S. has been attacked, or when an attack is so imminent and certain that delay would cost innocent American lives, or in pursuit of a congressional declaration of war. Under federal law, he can only order killing using civilians when a person has been sentenced lawfully to death by a federal court and the jury verdict and the death sentence have been upheld on appeal. If he uses the military to kill, federal law requires public reports of its use to Congress and congressional approval after 180 days.

The U.S. has not declared war since World War II. If the president knows that an attack on our shores is imminent, he’d be hard-pressed to argue convincingly that a guy in a truck in a desert 10,000 miles from here — no matter what his intentions — poses a threat to the U.S. so imminent and certain that he needs to be killed on the spot in order to save the lives of Americans who would surely die during the time it would take to declare war on the country that harbours him, or during the time it would take to arrest him. Under no circumstances may he use civilian agents for non-judicial killing. Surely, CIA agents can use deadly force to protect themselves, but they may not use it offensively. Federal laws against murder apply to the president and to all federal agents and personnel, wherever they go on the planet.

Obama has argued that his careful consideration of each person he orders killed and the narrow use of deadly force are an adequate and constitutional substitute for due process. But the Constitution provides for no such thing. He has also argued that the use of drones to do his killing is humane since they are “surgical” and only kill their targets. We know that is incorrect. And he has argued that these killings are consistent with our values. What is he talking about? The essence of our values is the rule of law, not the rule of presidents.

The Constitution applies to all persons, not just citizens. If you read the Constitution, its protections are not limited to Americans. And that was written intentionally, because at the time it was written, they didn’t know what Native Americans would be. When the post Civil War amendments were added, they didn’t know how blacks would be considered, because they had a recent decision of the Supreme Court that said blacks are not persons. So in order to make sure the Constitution protected every human being: American, alien; citizen, non-citizen; lawful combatant, enemy combatant; innocent, guilty; those who wish us well, those who wish us ill … they used the broadest possible language, to make it clear: Wherever the government goes, the Constitution goes, and wherever the Constitution goes, the protections that it guarantees restrain the government and requires it to protect those rights.”

This last paragraph would alone justify reintroducing the doctrine of Pax Americana if only it were adhered to. But in a world where the U.S. government reserves the right to kill other people’s citizens, but does not admit the right of foreign courts to try members of the U.S. military or call government officials to the witness stand, it must be clear to all how very far that nation has strayed outside the bounds of its own constitutional safeguards, and thus how unworthy it has become of its own claim to be a guarantor of universal freedoms.

Edwin Drood

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