NBC has obtained the Justice Department memo used as justification for the September 2011 killing of Anwar Al Awlaki and Samir Khan, two US Citizens, by means of a drone strike. “Due Process”, the memo asserts, can and should be transmogrified from what our Constitution defines under the 4th, 5th, and 6th Amendments, into an allegation that “an informed, high-level official has determined”, well out of the light of public scrutiny.
Note that the language is very similar in character to that which Attorney General Thornburgh used during the George H. W. Bush Administration to justify greatly expanding the seizure provisions of the RICO act (1990). The War on Drugs was too dangerous, and Law Enforcement didn’t have time for Due Process, so it wasn’t practical. The very dangerous precedent was set, and Due Process has been a consistent casualty in the eroding of individual liberties since that day.
This Justice Department Memo represents another, very dangerous precedent. That of the closed deliberations of a Government star chamber replacing the legal processes and requirements for charging American citizens with treason under Article III of our Constitution. That article requires:
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
No longer is any of that required for the US Government to pronounce and carry out a capital sentence against an American citizen.
As for “two witnesses to the same overt act”, or to “a confession in open court”, it would seem that those requirements are also dispensed with.
And just where is this jurisdiction for the authorization of the use of force? Why, it is anywhere at all where the Government perceives an enemy to be. As the Memo informs us, there are no geographic limits. Which implies no battlefield, or perhaps, that everywhere is a battlefield.
Read the whole memo. It is enlightening and disturbing. Especially in light of the fact that this same Administration wished to try illegal combatants (subject under the Geneva Convention of 1949 to summary execution) captured in Iraq and Afghanistan in US civilian courts, giving them all the rights of an American citizen in a capital crime, including the government requirement for presentation of classified evidence.
Look, I have no love lost for men like Awlaki and Khan. If they are killed in an exchange of gunfire with US troops, let them rot in hell. With bellies full of pork rinds. And if they are captured in that fight, the post or the gibbet is good enough for them. But that is hardly the point. And this Administration knows it. The precedent here is not some bold statement of American willingness to fight its enemies wherever the find them. Rather, it is that the US Government now has codified quasi-legal justification to kill an American citizen that a group of people, out of the public eye, have deemed a “threat”. No evidence, no proof, no sworn testimony, and in fact, damned little other than the determination itself.
Attorney General Eric Holder has a massive integrity problem, ranging from the refusal to prosecute because of skin color, to his demands for new laws punishing people who “put guns in the hands of dangerous criminals”, he of Fast and Furious. This Administration as a whole, with the shameful complicity of senior military leadership, has played very loose with the Constitution and has consistently sought to portray political opponents as dangerous national enemies. From FBI memos to “full-spectrum” military training scenarios that intentionally portray law-abiding Americans as dangerous threats, in the wake of the Newtown tragedy, the collective guilt by association and the demonization of law-abiding citizens continues apace.
The new language for America’s enemies, “violent extremists” (replacing “Islamic extremists” in 2009) has been invoked to describe those who believe differently from what the radical Left who holds the levers of power believes. Schumer, Boxer, Napolitano, Feinstein, have all described lawful American citizens using precisely these words in the last several months.
So then, these becomes the questions. With the precedent set by the Justice memo to justify killing Americans without due process, how soon until this precedent reaches American soil? After all, will not “imminence” be even greater here? How easily will the claim be made that capture is “infeasible”? And will the Grand Jury indictment, the rights of the accused, the Government burden of proof beyond reasonable doubt, all disappear in the expedient of a puff of smoke and the impact of a bullet or a missile?
After all, in light of the Justice Memo, what’s to prevent it?
Despite my admitted distaste for this Administration and the people with whom our President surrounds himself and takes counsel, I do not wish ANY Administration to have such extra-Constitutional “authority”. Never, ever give this government unbridled power that is only restrained by the civility of those who hold that power. Ever. No matter who they may be. Our Constitution forbade it. By the time those reasons become clear once again, it will be too late.
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I must say I believed there scant chance that I would agree to something that MSNBC/NBC considered headline material. But, a scant chance is still a chance. Behold:
And, frankly, I thought there would be less of a chance that I would agree with someone from Columbia. Surprise, surprise, surprise, as Gomer might say.
“We should be concerned when the White House is acting as judge, jury and executioner,” she said. “And there’s no one outside of the White House who has real oversight over that process. What’s put forward here is there’s no role for the courts, not even after the fact.”
The fact that virtually nothing in the Justice Memo is a surprise, and none of this criticism was leveled before, say, the 2012 election, leads one to believe that these people felt compelled to say SOMETHING for the record, even as they perhaps hope that nobody quite remembers that they waited so long to say what they said.
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Craig Swain
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