29-03-2012, 07:45 PM
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[TD]THE EXTRA-JUDICIAL KILLING OF AMERICANS OVERSEAS:
THE ATTACK ON MAGNA CARTA AND THE U.S. CONSTITUTION BY PRESIDENTS G.W. BUSH AND OBAMA
JOHN DiJOSEPH
In September 2011, the United States launched a drone air strike that successfully killed an American citizen living in Yemen, Anwar al-Awlaki. According to the Washington Post, later confirmed by Obama Administration officials, Awlaki, 40, "was a skilled propagandist and the chief of external operations for al-Qaeda's affiliate in Yemen, which has attempted a number of terrorist attacks on the United States, . . . . He had been placed on "kill lists" compiled by the CIA and the military's Joint Special Operations Command." Assuming all of this is true, al-Awlaki, was an American citizen, who, despite the heinousness of his crimes, was entitled to the procedural due process protections of the U.S. Constitution, whose origins have ancient roots in the Common Law of England. This question posed by this paper is: Does the extra-judicial killing of an American citizen violate the Fifth Amendment's right to procedural due process and the centuries old tradition of due process that has defined American political values?
THE BACKGROUND AND THE PROBLEM
Our inquiry starts in Thirteenth Century England. In 1215, the barons of the English Realm, fed up with the arbitrary acts of King John, rebelled. On June 15, 1215, in a barren field near Runnymede, England, the king was forced to sign a documentlater called Magna Carta, the Great Charterthat was to become a beacon for constitutional and democratic government throughout the world. Buried in the Magna Carta was a provision that evolved into what we call due process, and which has distinguished the Anglo-American legal system from every other legal system in the world:
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
To no one will we sell, to no one deny or delay right or justice.
Due process is the oldest constitutional right predating by centuries in the Magna Carta constitutional rights such as freedom of religion and freedom of the press, etc. William Stubbs, the English constitutional historian, in his Constitutional History of England, 6[SUP]th[/SUP] edition, Oxford, 1896-97, vol. I, pp. 569-572 stated that "[T]he whole of the constitutional history of England is little more than a commentary on Magna Carta." William Blackstone and Sir Edward Coke, Chief Justice of the King's Bench, 1613, the two great commentators on the English Common Law interpreted "lawful judgment of peers" as trial by jury and the "law of the land" in the original as the right to due process. The American Founders were well aware of the ancient roots of the Great Charter and the authoritative interpretations of Blackstone and Coke. Magna Carta became the scaffolding for the U.S. Constitution and the Bill of Rights. In pertinent part, the Fifth Amendment to the U.S Constitution mirrors Magna Carta ". . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law."
The U.S. Supreme Court has zealously protected due process. The Court, for example, has stated that due process protects "those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." Hurtado v. California, 110 U.S. 516, 535 (1884). Procedural due process guarantees those procedures which are mandated for the "protection of ultimate decency in a civilized society." Adamson v. California, 332 U.S. 42, 61 (1948) (Frankfurter, J. concurring).
The seminal case of Goldberg v. Kelly, 397 U.S. 254 (1970) is the lodestar to determine what process is due. The Court explained in Goldberg at 270, citing Greene v. McElroy, 360 U.S. 474, 496-497 (1959) that:
Certain Principles have remained relatively immutable in our jurisprudence. One of these is that where government action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross examination. They have ancient roots. They find expression in the Sixth Amendment. . . . This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases . . . but also in all types of cases where administrative . . . actions were under scrutiny.
A computer check found over 7,500 cases, federal and state, judicial and administrative, that have cited and followed Goldberg. Goldberg's teaching about procedural due process is so clearly established and is so pervasive, for example, that there are numerous federal regulations implementing various federal laws, such as the Child Welfare Act, which mandate that states who take federal funds must have in place a system of administrative review of challenged decisions through a "fair hearing" process, a hearing conducted under the due process standards ofGoldberg. Parsed to its essentials, due process has four critical components: (1) an impartial judge, arbiter, or administrative officer; (2) knowledge of the basis of the government's action; (3) an opportunity to refute the governments charges by challenging documentary evidence and cross-examination of the government's witnesses; and (4) an opportunity to present witnesses to refute the government's charges and/or mitigate the punishment which the government wants to impose.
An example of the extent that due process was so enshrined in American jurisprudence is that U.S. authorities insisted at the end of WWII to give due process to the most despicable enemies of the United Statesthe Nazi war criminals, who, of course, were not American citizens. The International Military Tribunal (IMT), popularly known as the Nuremberg War Crimes Tribunal was largely a creation of the United States. Article 16 of the IMT's Charter reflected Magna Carta and the Fifth Amendment:
In order to ensure fair trial for the defendants, the following procedure shall be followed:
(a) [The] Indictment shall include full particulars specifying in detail the charges against the defendants. A copy of the Indictment and of all the documents lodged with the Indictment, translated into a language which he understands, shall be furnished to the defendant at a reasonable time before the Trial.
(b) During any preliminary examination or trial of a defendant he shall have the right to give any explanation relevant to the charges made against him.
© A preliminary examination of a defendant and his trial shall be conducted in, or translated into, a language which the defendant understands.
(d) A defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of counsel.
(e) A defendant shall have the right through himself or through his counsel to present evidence at the Trial in support of his defense, and to cross-examine any witness called by the Prosecution. . . .
In 1945, within FDR's cabinet, the precursor of what sixty years later was to be the position of the GW Bush and Obama Administrations, existed in the person of Henry Morgenthau, Jr., FDR's Secretary of the Treasury. Morgenthau advised FDR to hunt down the Nazi leaders and summarily execute them on the spot without trials. Although sickened by the savagery of the Nazis, both FDR and President Truman rejected Morgenthau's advice. Truman even appointed Supreme Court Justice Robert Jackson as the chief prosecutor for the United States at Nuremberg. Jackson and Justice Hugo Black were the leading proponents of procedural due process on the Court at the time. Jackson led the successful fight to have the IMT adopt the Anglo-American adversarial system with its due process protections instead of the inquisitorial system of the Europeans as exemplified by the Napoleonic Code.
Morgenthau believed that the Nazi war criminalsand probably most Americans concur about present day terroristsare the scum of the earth that should be mercilessly exterminated with the same ruthlessness that they give their victims; an eye for any, a tooth for a tooth. Like due process, Morgenthau's position has roots in European history, in the defense of the French Revolution. Robespierre, one of the revolutionary leaders, on February 5, 1794, spoke to the French legislature:
If the mainspring of popular government in peacetime is virtue, amid revolution it is at the same time [both] virtue and terror: virtue, without which terror is fatal; terror, without which virtue is impotent. Terror is nothing but prompt, severe, inflexible justice; it is therefore an emanation of virtue. It is less a special principle than a consequence of the general principle of democracy [emphasis added] applied to our country's most pressing needs.
It has been said that terror was the mainspring of despotic government. Does your government, then, resemble a despotism? Yes, as the sword which glitters in the hands of liberty's heroes resembles the one with which tyranny's lackeys are armed. Let the despot govern his brutalized subjects by terror; he is right to do this as a despot. Subdue liberty's enemies by terror, and you will be right, as Founders of the Republic. The government of the revolution is the despotism of liberty against tyranny. Is force made only to protect crime? And is it not to strike the heads of the proud that lightning is destined?
Nature imposes upon every physical and moral being the law of providing for its own preservation. Crime slaughters innocence in order to reign, and innocence in the hands of crime fights with all its strength.
Let tyranny reign for a single day, and on the morrow not one patriot will be left. How long will the despots' fury be called justice, and the people's justice barbarism or rebellion? How tender one is to the oppressors and how inexorable against the oppressed! And how natural whoever has no hatred for crime cannot love virtue. . . .
There is a lesson here for the present day American politicians and policymakers. The revolutionary leaders followed Robespierre's advice by defending the French democracy with the guillotine in what historians call the Reign of Terror. Robespierre, Danton, Saint-Just and most of the revolutionary leaders were guillotined. Eventually, the French democracy evolved into the autocracy of Napoleon Bonaparte, which spawned decades of political unrest in France andEurope.
The IMT with its due process protections became the gold standard for the war crimes tribunals of the Twenty-First Century that saw the perpetrators of the most heinous crimes, including genocidethe butchers of Cambodia, Serbia, and Rwanda among othersbrought to justice. In the United States, however, the trend was in the opposite direction. Morgenthau's position started to gain traction as American politicians and policymakers fought the "evil empire" of "godless" communism and then with 9/11 the so-called "war" on terrorism. Space constraints prohibit a full exposition of this history. One of the progenitors of this change can be found in a little-noticed Report to President Eisenhower by General Jimmy Doolittle, who echoed Robespierre in words equally applicable to the "war" on terrorism:
It is now clear that we are facing an implacable enemy [the Soviet Union] whose avowed objective is world domination by whatever means and at whatever cost. There are no rules in such a game. Hitherto acceptable norms of human conduct do not apply. If the United States is to survive, long-standing American concepts of "fair play" must be reconsidered. We must develop effective espionage and counterespionage services and must learn to subvert, sabotage and destroy our enemies by more clever, more sophisticated and more effective methods than those used against us. It may become necessary that the American people be made acquainted with, understand and support this fundamentally repugnant philosophy.[1]
In other wordsin order to defeat our enemy, we must become more like our enemy. Doolittle's recommendation was more or less effectively adopted by every US president, Republican and Democrat, from Eisenhower through Clinton.[2] After 9/11, the so-called "war" on terrorism has given birth to the most viral and Orwellian adoption of what I call the Morgenthau position by first the Bush Administration's use of torture, rendition, etc. and then by the Obama Administration's extra-judicial killing of American citizens.
THE JUSTIFICATION
On March 5, 2012, Obama's Attorney General, Eric Holder, attempted to defend the administration in a speech to law school students at Northwestern University. Holder mentioned the due process protections of the Fifth Amendment:
Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad. Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it's clear that United States citizenship alone does not make such individuals immune from being targeted. But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens even those who are leading efforts to kill innocent Americans. Of these, the most relevant is the Fifth Amendment's Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.
The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances. In cases arising under the Due Process Clause including in a case involving a U.S. citizen captured in the conflict against al Qaeda the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process. Where national security operations are at stake, due process takes into account the realities of combat.
Holder's speech has been much criticized. Although it is interesting that many liberal Democrats, who excoriated the Bush Administration policies have become strangely silent about the Obama Administration's assault on civil liberties. And many conservative Republicans who are upset by abortion and the expanding power of the Federal Government have easily been willing to give that government the ultimate powerthe power of extra-judicial killing of American citizens. A complete refutation of Holder's speech would rival Tolstoy's War and Peace in length. The highly respected constitutional scholar, Professor Jonathan Turley of George WashingtonUniversity, a virulent critic of the Bush Administration, has not remained silent. He gives, in my opinion, a well-reasoned, cogent critique of Holder's justification on his blog athttp://jonathanturley.org/2012/03/06/holder/:
Holder Promises To Kill Citizens With Care. He [Holder] was more clear in establishing that due process itself is now defined differently than it has been defined by courts since the start of this Republic. He declared that "a careful and thorough executive branch review of the facts in a case amounts to due process.'" Of course, from any objective standpoint, that statement is absurd and Orwellian. It is basically saying that "we will give the process that we consider due to a target." His main point was that "due process" will now longer mean "judicial process."
That last statement goes to the heart of the controversy. Many reporters have bought into the spin of the Administration that there are real limits to this power because they perform their own constitutional analysis for each killing. This starts with the presumption that the Constitution does not require these determinations to be made by a court or that they be subject to court review. They then redefine the protections of due process as a balancing test within the administration. This Administration has consistently maintained that courts do not have a say in such matters. Instead, they simply define the matter as covered by the Law Of Armed Conflicts (LOAC), even when the conflict is a war on terror. That war, they have stressed, is to be fought all around the world, including the United States. It is a battlefield without borders as strikes in other countries have vividly demonstrated.
The result is that they are claiming that they are following self-imposed "limits" which are meaningless particularly in a system that is premised on the availability of judicial review. The Administration has never said that the LOAC does not allow the same powers to be used in the United States. It would be an easy thing to state. Holder can affirmatively state that the President's inherent power to kill citizens exists only outside of the country. He can then explain where those limits are found in the Constitution and why they do not apply equally to a citizen in London or Berlin.
All the Administration has said is that they closely and faithfully follow their own guidelines even if their decision[s] are not subject to judicial review. The fact that they say those guidelines are based on notions of due process is meaningless. They are not a constitutional process of review. They are a dressed claim of process for a unilateral power. Presumably, the President can override the panel or disregard the panel. The panel is an extension of his claim of inherent unilateral authority.
Liberal commentator, Glen Greenwald, writing in Salon, succinctly exposes the disingenuousness of Holder's defense:
the President and his underlings are your accuser, your judge, your jury and your executioner all wrapped up in one, acting in total secrecy and without your even knowing that he's accused you and sentenced you to death, and you have no opportunity even to know about, let alone confront and address, his accusations; is that not enough due process for you?" At Esquire, Charles Pierce, writing about Holder's speech, described this best: "a monumental pile of crap that should embarrass every Democrat who ever said an unkind word about John Yoo [Yoo was the government lawyer whose secret memos provided legal cover for the Bush Administration]"
Greenwald is describing the closed circle of "justice" that was endemic to the "evil empire" of the Soviet Union and is the hallmark of every other authoritarian regime. The executive branch of the government is the originator and the investigator of the charges. Then the same executive passes judgment on its own investigation. Then the circle is closed when the same executive decrees punishment for the charges that the executive brought in the first place, all done in secret. Americans would be justifiably outraged if their local law enforcement agency could investigate them, charge them and then punish them, all in secret. The citizen wakes up one night to the knock on the door. When he responds, he is told that he has been investigated, charged and punished by the same officials who have knocked on his door. Procedural due process breaks this circle.
At this point in the inquiry, the discussion and analysis would focus on the Supreme Court decisions and other legal authorities, mentioned by Holder that support the Obama Administration's position. That is not possible because Holder, similar to the Bush Administration, has refused to release to the public the DOJ legal memos supporting the Administration, despite repeated requests by various groups that he do so. To make certain that the public doesn't get its hands on the memos, Holder has classified them as "Top Secret." What dark government secrets lay buried in the written opinions of Supreme Court Justices that are freely available to the public?
There is a highly respected American thinker/philosopher/scholar whose writings can provide the intellectual framework for the Obama Administration. Richard A. Posner (Posner) is a distinguished jurist who sits on the U.S. Court of Appeals for the Seventh Circuit. In his spare time, Judge Posner has created an impressive body of work on everything from strictly legal subjects, The Economics of Contract Law, to literature, Law and Literature, to sex, Sex and Reason.
It is Posner's Not A Suicide Pact: The Constitution In Time of National Emergency, Oxford University Press, 2007, that concerns us here.[3] Posner advocates what he calls "pragmatism" grounded on cost benefit analysis when engaging in constitutional analysis. The only resemblance between Posner's "pragmatism" and the philosophy of Pragmatism developed by American philosophers William James and John Dewey in the early Twentieth Century is coincidental. Posner states that "The core meaning of civil liberties is freedom from coercive or otherwise intrusive governmental actions designed to secure the nation against real, or sometimes, imagined internal and external enemies (p. 4)." The central question is "how far civil liberties based on the Constitution should be permitted to vary with the threat level where the threat arises from terrorism that has the potential to create a national emergency (p.7)." Posner continues (p.31):
Ideally, in the case of a right (for example the right to be free from unreasonable searches and seizures) that could be asserted against government measures for protecting national security, one would like to locate the point at which a slight expansion in the scope of the right would subtract more from public safety than it would add to personal liberty and a slight contraction would subtract more from personal liberty than it would add to public safety. That is the point of balance, and it determines the optimal scope of the right.
For Posner, that tipping point has been reached with Islamic Terrorism, which he claims threatens the very existence of the United States. Therefore, Posner argues we should reinterpret the principle of habeas corpus to allow for the indefinite detention of suspected terrorists (p. 56); reinterpret the Fourth Amendment to the U.S. Constitution so as to deny its applicability to suspected terrorists (pp. 88-91); allow torture for purposes of intelligence-related information gathering (pp. 86-7); allow unlimited electronic surveillance (and perhaps physical searches) without warrants or probable cause (pp. 99-101); and reinterpret the First Amendment so as to allow for the censorship of hate speech' by and against Muslims (p. 124).
Posner ends the book with a passage from David Hume's Enquiry Concerning the Principles of Morals (p.158). "The safety of the people is the supreme law: All other particular laws are subordinate to it, and dependent on it: And if, in the common course of things, they be followed and regarded; it is only because the public safety and interest commonly demand so equal and impartial an administration." Machiavelli was more explicit in his Discourses, III, 41, "When it is a question of saving the Fatherland one should not stop for a moment to consider whether something is lawful or unlawful, gentle or cruel, laudable or shameful; but putting aside every other consideration, one ought to follow out to the end whatever resolve will save the life of the State and preserve its freedom."
In fairness to Posner, his remarks cited above apply only to Islamic Terrorism and only in times of emergency. Posner's emergency, however, like the "war" on terrorism is never ending. Terrorist movements are extremely long-lived. ETA, the Basque terrorist movement is fifty years old. The IRA in Northern Ireland lasted almost seventy-five years. There is a group that call themselves "the real IRA" that refuses to accept the accommodation between the IRA and the UKreached in 1997. The FARK in Columbia is almost fifty years old. It is probable that Islamic Terrorism will last well into the second half of the Twenty-First Century.
Many commentators believe that Posner's philosophy with its never ending emergency will eventually result in a totalitarian democracy. While I agree with this interpretation, based on my limited reading of Posner, I have temporarily concluded that he would not favor the extra-judicial killing of American citizens. Posner's Not A Suicide Pact, however, has closed the theoretical loop from Robespierre to Machiavelli to Hume to Morgenthau to Obama.
President Obama should re-read "one of my favorite philosophers" Reinhold Niebuhr, as an antidote to the Robespierre-Posner philosophy. In an April 26, 2007 interview in the New York Times, then candidate Obama, when asked by David Brooks, "Have you ever read Reinhold Niebuhr? Obama's tone changed. I love him. He's one of my favorite philosophers.'"
Niebuhr was more than a philosopher. He was a Lutheran minister, a public intellectual, a scholar, who wielded enormous influence until his death at age 79 in 1971. In his Moral Man and Immoral Society, 1932, (MMIS) and other works, Niebuhr had important insights about the nation state and the United States, which hold true today. One of his basic premises was that "the most moral characteristic of the nation is its hypocrisy." Deception and hypocrisy are in every individual. "They are the device by which the lesser self gains the consent of the larger self to engage in impulses and adventures which the rational self can approve only when disguised." The disguise enables the lesser self to not only deceive external observers but more importantly, the self itself. The nation can only act through the actions of disguised individuals. So, "Naturally, this defect in individuals becomes more apparent in the life of nations."
Niebuhr concentrated on ends versus means. "It is, of course, dangerous to accept the principle, that the end justifies the means which are used in its attainment. The danger arises from the ease with which any social group, engaged in social conflict, may justify itself by professing to be fighting for freedom and equality (MMIS, 235)." The ends justifies the means is implicit in Obama's decision to use extra-judicial killing against American citizens who allegedly are terrorists because they pose a serious, immediate threat to the United States. Neibuhr rejected this survival of the nation position as historically advocated by Robespierre-Posner. The instinct for survival is basic in all individuals, and, of course, in the nation. According to Niebuhr (MMIS 95):
Every human self-assertion, whether individual or collective, is therefore involved in the inconsistency of claiming, on the one hand, that it is justified by the primary right of survival, and on the other hand that it is the bearer of interests and values larger than its own and that the more inclusive values are its justification of its conflict with competing social wills.
For Niebuhr, part of self interest had to transcend parochial interests. In his Christian Realism and Practical Problems, 1948 (131), he wrote:
But consistent self interest on the part of a nation will work against its interests because it will fail to do justice to the broader and longer interests, which are involved with the interests of other nations. A narrow national loyalty on our part for instance will obscure our long range interests when they are involved with those of a whole alliance of free nations. Thus the loyalty of a leavening portion of a nation's citizens to a value transcending national interest will save a realistic nation from defining its interest in such narrow and short range terms as to defeat the real interests of the nation.
Niebuhr envisioned what he called a "wise self interest" that draws upon "another moral and spiritual resource to widen the conception of interest." Some Americans at least must "have loyalties and responsibility to a wider system of values than that of national interestto a civilization, for instance, to a system of justice, and to a community of free nations." This wider system of values will leaven a nation's mind. This larger, more refined self interest "will prevent prudence from becoming too prudential in defining interests (Christian Realism 131)." Niebuhr was prescient about the effect of unbridled self interest on friendly nations. The drone attacks inPakistan have exacerbated anti-American feeling in that country. The Bush Administration's torture and rendition programs have not only generated anti-American feeling in Canada and Italy, but, are a prime recruiting tool for Islamist terrorists. Niebuhr looked to Christianity to provide theUnited States with the basis of his wise self interest. That did not and is not going to happen as many present-day Christian leaders vie for whom can be the most militaristic. However, "the system of justice" mentioned by Niebuhr, involving the long tradition of procedural due process that was in place until recently should have helped to create Niebuhr's wise self interest in the Obama Administration's instead of its end justifies the means philosophy that in the long term will not protect Americans from terrorist attacks.
David Brooks's question to Obama about Niebuhr, above, was probably not fortuitous. Brooks is a well-known neocon. They have used Niebuhr's "Christian Realism" to justify their preservation of democracy at any cost. Professor Hatcher in his The Suicide of an Elite gives an excellent, brief summary of "Christian Realism:"
In practical terms, he [Niebuhr] gave them [Americans] much greater license to act. They no longer needed to believe that international goals had to embody moral values. American Internationalists had to find explanations for apparently amoral, or immoral actions. [Niebuhr] justified choosing between the lesser of two evils with only one caveat: there should be some likelihood that the lesser evil could be reformed, to some degree, over a span of time that was appropriate to the task. . . . Good men had to act, and in acting, they could choose between bad, worse, and worst. And therein lay the escape route from cognitive dissonance. Confronted with evidence that many choices made in Vietnam had produced "bad" results, the Niebuhrian disciples could answer that they had prevented "worst" results.
Niebuhr's well-publicized opposition to the Vietnam War did not stop the neocons from citing his Christian Realism to justify their flawed and immoral policies in Vietnam. Niebuhr was a leader of The Clergymen Concerned about Vietnam. He continuously criticized Lyndon Johnson for what Niebuhr regarded as the fundamental error of U.S. policymakers of not recognizing historical realitythe principal issue in Vietnam was not the containment of communism, but the nationalism of a small nation in Asia that wanted to throw off the yoke of Western imperialism.
Given the Obama Administration's penchant for secrecy about its sources for extra-judicial killing, we can only speculate that Obama may have adopted the flawed and myopic reading of Niebuhr by the neocons. My extensive reading of Niebuhr, including Richard Wrightman Fox's superb, Reinhold Niebuhr: A Biography, supports the view of the more knowledgeable Niebuhr scholars including his former students, backed by Niebuhr's own words in his last book that the necons reading of Neibuhr is wrong. In Man's Nature and His Communities, 1965, 24-25, Niebuhr was clear: "It is my strong conviction that a realist conception of human nature should be made the servant of an ethic of progressive justice and should not be made into a bastion of conservatism, particularly a conservatism which defends unjust privileges."
Lastly, what Holder did not mention in his speech was what the students had probably been taught in their first year class on Constitutional Lawnot all constitutional rights are equal. The U.S. Supreme Court has placed procedural due process in the top tier of rights; what the Court calls "fundamental liberty interests." These are the rights that are absolutely essential for ordered liberty. They are given the highest level of protection in the form of what the Court calls "strict scrutiny constitutional analysis." In order to pass constitutional muster, strict scrutiny requires: (1) the government must demonstrate that there is an overriding government interest involved; and (2) the government must use the least restrictive means possible. The Obama's Administration killing of American citizens can probably meet the first test. The fight against terrorism is an overriding government interest. Killing is, of course, not the least restrictive means, just the opposite. Holder played intellectual ju-jitsu with this part of strict scrutiny when later in the speech, without mentioning strict scrutiny, he stated that "First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles." The bottom line: when the GW Bush and the Obama Administrations quixotically diminish fundamental liberty interests, they are striking a dagger at the heart of American liberty.
CONCLUSION AND A LOOK INTO THE FUTURE
This paper proposed to answer the question: Is the extra-judicial killing of an American citizen a violation of the Fifth Amendment and the centuries old tradition of due process that has defined American political values? Based on the discussion and analysis above, which showed that due process is the linchpin of American jurisprudence, the answer is "yes." American constitutional protection has never before the Obama Administration depended on the moral sanctity or depravity of individuals or made the rights and the lives of American citizens subservient to the imminent danger they might pose for the US Government. All American citizens, whether devils or saints and everything in between are entitled to, and until the Obama Administration, have received the due process protections of the United States Constitution. Due process like the biblical sun shines on the evil and the good and like the biblical rain falls on the just and unjust (Matthew 5:45).
However, there is an overarching, more important question lurking in the background of this inquiry. The Bush Administration took the first, clear steps toward an abridgement of American's civil liberties. The Obama Administration has taken a significant second step down that slippery slope. How far will this slide into totalitarian democracy go?
It is easy to imagine sometime in the not too distant future when the American homeland is subjected to another 9/11-like attack. Our leaders have repeatedly said that such an attack is inevitable. Thousands, maybe tens of thousands are dead or wounded. Big Brother, Obama, or Romney, or Santorum,or Big Sister, Hilary Rodham Clinton or Sarah Palin, or Michele Bachman,unleash the huge media apparatus of the federal government to tell Americans that the Government's Kill Committee, after the most careful deliberation including consultation with selected congressional and religious leaders who are leaders of CASA (Christian Alliance to Save America), has determined that American citizens are involved in the planning and execution of the attack. Some of the American perpetrators live in London and Berlin. Others live in the USA. This information has been obtained from intelligence sources, including a huge database of information about 40,000,000+Americns that was initially started by the Bush Administration. For years Government regulations required that an individual's information could only be kept for six months. In March 2012, the Obama Administration expanded the time to five years. Later the time was expanded to fifty years.
Information about the attack was also "harvested" (Orwell Newspeak) from the torture of a twelve year old female, the daughter of one of the leaders, who was present at the planning of the attack. Big Brother/Sister tells Americans that it is not feasible to arrest the perpetrators. They must be stopped before they continue with new attacks. Big Brother/Sister, following the precedents established by the Bush and Obama Administrations, has accepted the recommendations of the Kill Committee and ordered drone air strikes against the perpetrators both here in the USA and abroad, to deal with the perpetrators with extreme prejudice (Orwell's Newspeak for killing). Some of the drone strikes in this country will be executed by local law enforcement drones aided by federal authorities.[4] Big Brother/Sister finishes his/her speech by telling Americans, "Do not worry. The Lord Jesus with his mighty angels in flaming fire will extract divine vengeance from our enemies. God is on our side."
At this time, will the overwhelming majority of Americans be like Orwell's Winston Smith, at the end of 1984? "Two gin-scented tears trickled down the sides of his nose. But it was all right, everything was all right. He had won the victory over himself. He loved Big Brother [or Big Sister]."
ABOUT THE AUTHOR
John DiJoseph teaches biomedical ethics at the Howard University College of Medicine and a variety of courses in the Graduate Liberal Studies Program at Loyola University, Maryland, including "An Analysis of the Terrorist Mind" and "The Intelligence Services and American Culture." Dr. DiJoseph is a former Special Agent in the U.S. Army's Counterintelligence Corp(CIC). He is the author of Jacques Maritain and the Moral Foundation of Democracy, Rowman and Littlefield, 1996 and Noble Cause Corruption, the Banality of Evil and the Threat to American Democracy, 1950-2008, University Press of America, 2010.
[1] The Doolittle Report: Special Study Group, "Report on the Covert Activities of the Central Intelligence Agency," September 30, 1954, declassified August 20, 2001, CIA/CREST.
[2] The adoption has been extensively studied and analyzed. Here are a few examples: Christopher Andrew, For the President's Eyes Only: Secret Intelligence and the American Presidency from Washington to Bush, New York, Harper-Collins, 1995; Tim Weiner, Legacy of Ashes: The History of the CIA, New York, Doubleday, 2007; Nick Cullather, Secret History: The CIA's Classified Account of its Operations in Guatemala 1952-1954, Stanford, Ca., Stanford University Press, 1999; Loch K. Johnson, America's Secret Power: the CIA in a Democratic Society, New York, Oxford University Press, 1989; The Pinochet File: A Detailed Dossier on Atrocity and Accountability, New York, The New Press, 2003; Alfred W. McCoy, The Politics of Heroin: CIA Complicity in the Global Drug Trade, 2[SUP]nd[/SUP] revised ed., Chicago, Il., Lawrence Hill Press, 2003; Robert Baer, See No Evil: The True Story of a Ground Soldier in the CIA's War on Terrorism, New York, Three River Press, 2002; and Sister Diana Ortiz, The Blindfold's Eye: My Journey from Torture to Truth, Orbis Books, Maryknoll, N.Y. 2002
[3] I am indebted to Professor Irfan Khawaja, an instructor in philosophy at John Jay College of Criminal Justice, City University of New York, for his insightful review of Not A Suicide Pact in Democratiya 8 | Spring 2007
[4] At the time of this writing, about forty local law enforcement agencies have purchased drone technology.
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http://www.waynemadsenreport.com/articles/20120328
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[TD]THE EXTRA-JUDICIAL KILLING OF AMERICANS OVERSEAS:
THE ATTACK ON MAGNA CARTA AND THE U.S. CONSTITUTION BY PRESIDENTS G.W. BUSH AND OBAMA
JOHN DiJOSEPH
In September 2011, the United States launched a drone air strike that successfully killed an American citizen living in Yemen, Anwar al-Awlaki. According to the Washington Post, later confirmed by Obama Administration officials, Awlaki, 40, "was a skilled propagandist and the chief of external operations for al-Qaeda's affiliate in Yemen, which has attempted a number of terrorist attacks on the United States, . . . . He had been placed on "kill lists" compiled by the CIA and the military's Joint Special Operations Command." Assuming all of this is true, al-Awlaki, was an American citizen, who, despite the heinousness of his crimes, was entitled to the procedural due process protections of the U.S. Constitution, whose origins have ancient roots in the Common Law of England. This question posed by this paper is: Does the extra-judicial killing of an American citizen violate the Fifth Amendment's right to procedural due process and the centuries old tradition of due process that has defined American political values?
THE BACKGROUND AND THE PROBLEM
Our inquiry starts in Thirteenth Century England. In 1215, the barons of the English Realm, fed up with the arbitrary acts of King John, rebelled. On June 15, 1215, in a barren field near Runnymede, England, the king was forced to sign a documentlater called Magna Carta, the Great Charterthat was to become a beacon for constitutional and democratic government throughout the world. Buried in the Magna Carta was a provision that evolved into what we call due process, and which has distinguished the Anglo-American legal system from every other legal system in the world:
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
To no one will we sell, to no one deny or delay right or justice.
Due process is the oldest constitutional right predating by centuries in the Magna Carta constitutional rights such as freedom of religion and freedom of the press, etc. William Stubbs, the English constitutional historian, in his Constitutional History of England, 6[SUP]th[/SUP] edition, Oxford, 1896-97, vol. I, pp. 569-572 stated that "[T]he whole of the constitutional history of England is little more than a commentary on Magna Carta." William Blackstone and Sir Edward Coke, Chief Justice of the King's Bench, 1613, the two great commentators on the English Common Law interpreted "lawful judgment of peers" as trial by jury and the "law of the land" in the original as the right to due process. The American Founders were well aware of the ancient roots of the Great Charter and the authoritative interpretations of Blackstone and Coke. Magna Carta became the scaffolding for the U.S. Constitution and the Bill of Rights. In pertinent part, the Fifth Amendment to the U.S Constitution mirrors Magna Carta ". . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law."
The U.S. Supreme Court has zealously protected due process. The Court, for example, has stated that due process protects "those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." Hurtado v. California, 110 U.S. 516, 535 (1884). Procedural due process guarantees those procedures which are mandated for the "protection of ultimate decency in a civilized society." Adamson v. California, 332 U.S. 42, 61 (1948) (Frankfurter, J. concurring).
The seminal case of Goldberg v. Kelly, 397 U.S. 254 (1970) is the lodestar to determine what process is due. The Court explained in Goldberg at 270, citing Greene v. McElroy, 360 U.S. 474, 496-497 (1959) that:
Certain Principles have remained relatively immutable in our jurisprudence. One of these is that where government action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross examination. They have ancient roots. They find expression in the Sixth Amendment. . . . This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases . . . but also in all types of cases where administrative . . . actions were under scrutiny.
A computer check found over 7,500 cases, federal and state, judicial and administrative, that have cited and followed Goldberg. Goldberg's teaching about procedural due process is so clearly established and is so pervasive, for example, that there are numerous federal regulations implementing various federal laws, such as the Child Welfare Act, which mandate that states who take federal funds must have in place a system of administrative review of challenged decisions through a "fair hearing" process, a hearing conducted under the due process standards ofGoldberg. Parsed to its essentials, due process has four critical components: (1) an impartial judge, arbiter, or administrative officer; (2) knowledge of the basis of the government's action; (3) an opportunity to refute the governments charges by challenging documentary evidence and cross-examination of the government's witnesses; and (4) an opportunity to present witnesses to refute the government's charges and/or mitigate the punishment which the government wants to impose.
An example of the extent that due process was so enshrined in American jurisprudence is that U.S. authorities insisted at the end of WWII to give due process to the most despicable enemies of the United Statesthe Nazi war criminals, who, of course, were not American citizens. The International Military Tribunal (IMT), popularly known as the Nuremberg War Crimes Tribunal was largely a creation of the United States. Article 16 of the IMT's Charter reflected Magna Carta and the Fifth Amendment:
In order to ensure fair trial for the defendants, the following procedure shall be followed:
(a) [The] Indictment shall include full particulars specifying in detail the charges against the defendants. A copy of the Indictment and of all the documents lodged with the Indictment, translated into a language which he understands, shall be furnished to the defendant at a reasonable time before the Trial.
(b) During any preliminary examination or trial of a defendant he shall have the right to give any explanation relevant to the charges made against him.
© A preliminary examination of a defendant and his trial shall be conducted in, or translated into, a language which the defendant understands.
(d) A defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of counsel.
(e) A defendant shall have the right through himself or through his counsel to present evidence at the Trial in support of his defense, and to cross-examine any witness called by the Prosecution. . . .
In 1945, within FDR's cabinet, the precursor of what sixty years later was to be the position of the GW Bush and Obama Administrations, existed in the person of Henry Morgenthau, Jr., FDR's Secretary of the Treasury. Morgenthau advised FDR to hunt down the Nazi leaders and summarily execute them on the spot without trials. Although sickened by the savagery of the Nazis, both FDR and President Truman rejected Morgenthau's advice. Truman even appointed Supreme Court Justice Robert Jackson as the chief prosecutor for the United States at Nuremberg. Jackson and Justice Hugo Black were the leading proponents of procedural due process on the Court at the time. Jackson led the successful fight to have the IMT adopt the Anglo-American adversarial system with its due process protections instead of the inquisitorial system of the Europeans as exemplified by the Napoleonic Code.
Morgenthau believed that the Nazi war criminalsand probably most Americans concur about present day terroristsare the scum of the earth that should be mercilessly exterminated with the same ruthlessness that they give their victims; an eye for any, a tooth for a tooth. Like due process, Morgenthau's position has roots in European history, in the defense of the French Revolution. Robespierre, one of the revolutionary leaders, on February 5, 1794, spoke to the French legislature:
If the mainspring of popular government in peacetime is virtue, amid revolution it is at the same time [both] virtue and terror: virtue, without which terror is fatal; terror, without which virtue is impotent. Terror is nothing but prompt, severe, inflexible justice; it is therefore an emanation of virtue. It is less a special principle than a consequence of the general principle of democracy [emphasis added] applied to our country's most pressing needs.
It has been said that terror was the mainspring of despotic government. Does your government, then, resemble a despotism? Yes, as the sword which glitters in the hands of liberty's heroes resembles the one with which tyranny's lackeys are armed. Let the despot govern his brutalized subjects by terror; he is right to do this as a despot. Subdue liberty's enemies by terror, and you will be right, as Founders of the Republic. The government of the revolution is the despotism of liberty against tyranny. Is force made only to protect crime? And is it not to strike the heads of the proud that lightning is destined?
Nature imposes upon every physical and moral being the law of providing for its own preservation. Crime slaughters innocence in order to reign, and innocence in the hands of crime fights with all its strength.
Let tyranny reign for a single day, and on the morrow not one patriot will be left. How long will the despots' fury be called justice, and the people's justice barbarism or rebellion? How tender one is to the oppressors and how inexorable against the oppressed! And how natural whoever has no hatred for crime cannot love virtue. . . .
There is a lesson here for the present day American politicians and policymakers. The revolutionary leaders followed Robespierre's advice by defending the French democracy with the guillotine in what historians call the Reign of Terror. Robespierre, Danton, Saint-Just and most of the revolutionary leaders were guillotined. Eventually, the French democracy evolved into the autocracy of Napoleon Bonaparte, which spawned decades of political unrest in France andEurope.
The IMT with its due process protections became the gold standard for the war crimes tribunals of the Twenty-First Century that saw the perpetrators of the most heinous crimes, including genocidethe butchers of Cambodia, Serbia, and Rwanda among othersbrought to justice. In the United States, however, the trend was in the opposite direction. Morgenthau's position started to gain traction as American politicians and policymakers fought the "evil empire" of "godless" communism and then with 9/11 the so-called "war" on terrorism. Space constraints prohibit a full exposition of this history. One of the progenitors of this change can be found in a little-noticed Report to President Eisenhower by General Jimmy Doolittle, who echoed Robespierre in words equally applicable to the "war" on terrorism:
It is now clear that we are facing an implacable enemy [the Soviet Union] whose avowed objective is world domination by whatever means and at whatever cost. There are no rules in such a game. Hitherto acceptable norms of human conduct do not apply. If the United States is to survive, long-standing American concepts of "fair play" must be reconsidered. We must develop effective espionage and counterespionage services and must learn to subvert, sabotage and destroy our enemies by more clever, more sophisticated and more effective methods than those used against us. It may become necessary that the American people be made acquainted with, understand and support this fundamentally repugnant philosophy.[1]
In other wordsin order to defeat our enemy, we must become more like our enemy. Doolittle's recommendation was more or less effectively adopted by every US president, Republican and Democrat, from Eisenhower through Clinton.[2] After 9/11, the so-called "war" on terrorism has given birth to the most viral and Orwellian adoption of what I call the Morgenthau position by first the Bush Administration's use of torture, rendition, etc. and then by the Obama Administration's extra-judicial killing of American citizens.
THE JUSTIFICATION
On March 5, 2012, Obama's Attorney General, Eric Holder, attempted to defend the administration in a speech to law school students at Northwestern University. Holder mentioned the due process protections of the Fifth Amendment:
Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad. Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it's clear that United States citizenship alone does not make such individuals immune from being targeted. But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens even those who are leading efforts to kill innocent Americans. Of these, the most relevant is the Fifth Amendment's Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.
The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances. In cases arising under the Due Process Clause including in a case involving a U.S. citizen captured in the conflict against al Qaeda the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process. Where national security operations are at stake, due process takes into account the realities of combat.
Holder's speech has been much criticized. Although it is interesting that many liberal Democrats, who excoriated the Bush Administration policies have become strangely silent about the Obama Administration's assault on civil liberties. And many conservative Republicans who are upset by abortion and the expanding power of the Federal Government have easily been willing to give that government the ultimate powerthe power of extra-judicial killing of American citizens. A complete refutation of Holder's speech would rival Tolstoy's War and Peace in length. The highly respected constitutional scholar, Professor Jonathan Turley of George WashingtonUniversity, a virulent critic of the Bush Administration, has not remained silent. He gives, in my opinion, a well-reasoned, cogent critique of Holder's justification on his blog athttp://jonathanturley.org/2012/03/06/holder/:
Holder Promises To Kill Citizens With Care. He [Holder] was more clear in establishing that due process itself is now defined differently than it has been defined by courts since the start of this Republic. He declared that "a careful and thorough executive branch review of the facts in a case amounts to due process.'" Of course, from any objective standpoint, that statement is absurd and Orwellian. It is basically saying that "we will give the process that we consider due to a target." His main point was that "due process" will now longer mean "judicial process."
That last statement goes to the heart of the controversy. Many reporters have bought into the spin of the Administration that there are real limits to this power because they perform their own constitutional analysis for each killing. This starts with the presumption that the Constitution does not require these determinations to be made by a court or that they be subject to court review. They then redefine the protections of due process as a balancing test within the administration. This Administration has consistently maintained that courts do not have a say in such matters. Instead, they simply define the matter as covered by the Law Of Armed Conflicts (LOAC), even when the conflict is a war on terror. That war, they have stressed, is to be fought all around the world, including the United States. It is a battlefield without borders as strikes in other countries have vividly demonstrated.
The result is that they are claiming that they are following self-imposed "limits" which are meaningless particularly in a system that is premised on the availability of judicial review. The Administration has never said that the LOAC does not allow the same powers to be used in the United States. It would be an easy thing to state. Holder can affirmatively state that the President's inherent power to kill citizens exists only outside of the country. He can then explain where those limits are found in the Constitution and why they do not apply equally to a citizen in London or Berlin.
All the Administration has said is that they closely and faithfully follow their own guidelines even if their decision[s] are not subject to judicial review. The fact that they say those guidelines are based on notions of due process is meaningless. They are not a constitutional process of review. They are a dressed claim of process for a unilateral power. Presumably, the President can override the panel or disregard the panel. The panel is an extension of his claim of inherent unilateral authority.
Liberal commentator, Glen Greenwald, writing in Salon, succinctly exposes the disingenuousness of Holder's defense:
the President and his underlings are your accuser, your judge, your jury and your executioner all wrapped up in one, acting in total secrecy and without your even knowing that he's accused you and sentenced you to death, and you have no opportunity even to know about, let alone confront and address, his accusations; is that not enough due process for you?" At Esquire, Charles Pierce, writing about Holder's speech, described this best: "a monumental pile of crap that should embarrass every Democrat who ever said an unkind word about John Yoo [Yoo was the government lawyer whose secret memos provided legal cover for the Bush Administration]"
Greenwald is describing the closed circle of "justice" that was endemic to the "evil empire" of the Soviet Union and is the hallmark of every other authoritarian regime. The executive branch of the government is the originator and the investigator of the charges. Then the same executive passes judgment on its own investigation. Then the circle is closed when the same executive decrees punishment for the charges that the executive brought in the first place, all done in secret. Americans would be justifiably outraged if their local law enforcement agency could investigate them, charge them and then punish them, all in secret. The citizen wakes up one night to the knock on the door. When he responds, he is told that he has been investigated, charged and punished by the same officials who have knocked on his door. Procedural due process breaks this circle.
At this point in the inquiry, the discussion and analysis would focus on the Supreme Court decisions and other legal authorities, mentioned by Holder that support the Obama Administration's position. That is not possible because Holder, similar to the Bush Administration, has refused to release to the public the DOJ legal memos supporting the Administration, despite repeated requests by various groups that he do so. To make certain that the public doesn't get its hands on the memos, Holder has classified them as "Top Secret." What dark government secrets lay buried in the written opinions of Supreme Court Justices that are freely available to the public?
There is a highly respected American thinker/philosopher/scholar whose writings can provide the intellectual framework for the Obama Administration. Richard A. Posner (Posner) is a distinguished jurist who sits on the U.S. Court of Appeals for the Seventh Circuit. In his spare time, Judge Posner has created an impressive body of work on everything from strictly legal subjects, The Economics of Contract Law, to literature, Law and Literature, to sex, Sex and Reason.
It is Posner's Not A Suicide Pact: The Constitution In Time of National Emergency, Oxford University Press, 2007, that concerns us here.[3] Posner advocates what he calls "pragmatism" grounded on cost benefit analysis when engaging in constitutional analysis. The only resemblance between Posner's "pragmatism" and the philosophy of Pragmatism developed by American philosophers William James and John Dewey in the early Twentieth Century is coincidental. Posner states that "The core meaning of civil liberties is freedom from coercive or otherwise intrusive governmental actions designed to secure the nation against real, or sometimes, imagined internal and external enemies (p. 4)." The central question is "how far civil liberties based on the Constitution should be permitted to vary with the threat level where the threat arises from terrorism that has the potential to create a national emergency (p.7)." Posner continues (p.31):
Ideally, in the case of a right (for example the right to be free from unreasonable searches and seizures) that could be asserted against government measures for protecting national security, one would like to locate the point at which a slight expansion in the scope of the right would subtract more from public safety than it would add to personal liberty and a slight contraction would subtract more from personal liberty than it would add to public safety. That is the point of balance, and it determines the optimal scope of the right.
For Posner, that tipping point has been reached with Islamic Terrorism, which he claims threatens the very existence of the United States. Therefore, Posner argues we should reinterpret the principle of habeas corpus to allow for the indefinite detention of suspected terrorists (p. 56); reinterpret the Fourth Amendment to the U.S. Constitution so as to deny its applicability to suspected terrorists (pp. 88-91); allow torture for purposes of intelligence-related information gathering (pp. 86-7); allow unlimited electronic surveillance (and perhaps physical searches) without warrants or probable cause (pp. 99-101); and reinterpret the First Amendment so as to allow for the censorship of hate speech' by and against Muslims (p. 124).
Posner ends the book with a passage from David Hume's Enquiry Concerning the Principles of Morals (p.158). "The safety of the people is the supreme law: All other particular laws are subordinate to it, and dependent on it: And if, in the common course of things, they be followed and regarded; it is only because the public safety and interest commonly demand so equal and impartial an administration." Machiavelli was more explicit in his Discourses, III, 41, "When it is a question of saving the Fatherland one should not stop for a moment to consider whether something is lawful or unlawful, gentle or cruel, laudable or shameful; but putting aside every other consideration, one ought to follow out to the end whatever resolve will save the life of the State and preserve its freedom."
In fairness to Posner, his remarks cited above apply only to Islamic Terrorism and only in times of emergency. Posner's emergency, however, like the "war" on terrorism is never ending. Terrorist movements are extremely long-lived. ETA, the Basque terrorist movement is fifty years old. The IRA in Northern Ireland lasted almost seventy-five years. There is a group that call themselves "the real IRA" that refuses to accept the accommodation between the IRA and the UKreached in 1997. The FARK in Columbia is almost fifty years old. It is probable that Islamic Terrorism will last well into the second half of the Twenty-First Century.
Many commentators believe that Posner's philosophy with its never ending emergency will eventually result in a totalitarian democracy. While I agree with this interpretation, based on my limited reading of Posner, I have temporarily concluded that he would not favor the extra-judicial killing of American citizens. Posner's Not A Suicide Pact, however, has closed the theoretical loop from Robespierre to Machiavelli to Hume to Morgenthau to Obama.
President Obama should re-read "one of my favorite philosophers" Reinhold Niebuhr, as an antidote to the Robespierre-Posner philosophy. In an April 26, 2007 interview in the New York Times, then candidate Obama, when asked by David Brooks, "Have you ever read Reinhold Niebuhr? Obama's tone changed. I love him. He's one of my favorite philosophers.'"
Niebuhr was more than a philosopher. He was a Lutheran minister, a public intellectual, a scholar, who wielded enormous influence until his death at age 79 in 1971. In his Moral Man and Immoral Society, 1932, (MMIS) and other works, Niebuhr had important insights about the nation state and the United States, which hold true today. One of his basic premises was that "the most moral characteristic of the nation is its hypocrisy." Deception and hypocrisy are in every individual. "They are the device by which the lesser self gains the consent of the larger self to engage in impulses and adventures which the rational self can approve only when disguised." The disguise enables the lesser self to not only deceive external observers but more importantly, the self itself. The nation can only act through the actions of disguised individuals. So, "Naturally, this defect in individuals becomes more apparent in the life of nations."
Niebuhr concentrated on ends versus means. "It is, of course, dangerous to accept the principle, that the end justifies the means which are used in its attainment. The danger arises from the ease with which any social group, engaged in social conflict, may justify itself by professing to be fighting for freedom and equality (MMIS, 235)." The ends justifies the means is implicit in Obama's decision to use extra-judicial killing against American citizens who allegedly are terrorists because they pose a serious, immediate threat to the United States. Neibuhr rejected this survival of the nation position as historically advocated by Robespierre-Posner. The instinct for survival is basic in all individuals, and, of course, in the nation. According to Niebuhr (MMIS 95):
Every human self-assertion, whether individual or collective, is therefore involved in the inconsistency of claiming, on the one hand, that it is justified by the primary right of survival, and on the other hand that it is the bearer of interests and values larger than its own and that the more inclusive values are its justification of its conflict with competing social wills.
For Niebuhr, part of self interest had to transcend parochial interests. In his Christian Realism and Practical Problems, 1948 (131), he wrote:
But consistent self interest on the part of a nation will work against its interests because it will fail to do justice to the broader and longer interests, which are involved with the interests of other nations. A narrow national loyalty on our part for instance will obscure our long range interests when they are involved with those of a whole alliance of free nations. Thus the loyalty of a leavening portion of a nation's citizens to a value transcending national interest will save a realistic nation from defining its interest in such narrow and short range terms as to defeat the real interests of the nation.
Niebuhr envisioned what he called a "wise self interest" that draws upon "another moral and spiritual resource to widen the conception of interest." Some Americans at least must "have loyalties and responsibility to a wider system of values than that of national interestto a civilization, for instance, to a system of justice, and to a community of free nations." This wider system of values will leaven a nation's mind. This larger, more refined self interest "will prevent prudence from becoming too prudential in defining interests (Christian Realism 131)." Niebuhr was prescient about the effect of unbridled self interest on friendly nations. The drone attacks inPakistan have exacerbated anti-American feeling in that country. The Bush Administration's torture and rendition programs have not only generated anti-American feeling in Canada and Italy, but, are a prime recruiting tool for Islamist terrorists. Niebuhr looked to Christianity to provide theUnited States with the basis of his wise self interest. That did not and is not going to happen as many present-day Christian leaders vie for whom can be the most militaristic. However, "the system of justice" mentioned by Niebuhr, involving the long tradition of procedural due process that was in place until recently should have helped to create Niebuhr's wise self interest in the Obama Administration's instead of its end justifies the means philosophy that in the long term will not protect Americans from terrorist attacks.
David Brooks's question to Obama about Niebuhr, above, was probably not fortuitous. Brooks is a well-known neocon. They have used Niebuhr's "Christian Realism" to justify their preservation of democracy at any cost. Professor Hatcher in his The Suicide of an Elite gives an excellent, brief summary of "Christian Realism:"
In practical terms, he [Niebuhr] gave them [Americans] much greater license to act. They no longer needed to believe that international goals had to embody moral values. American Internationalists had to find explanations for apparently amoral, or immoral actions. [Niebuhr] justified choosing between the lesser of two evils with only one caveat: there should be some likelihood that the lesser evil could be reformed, to some degree, over a span of time that was appropriate to the task. . . . Good men had to act, and in acting, they could choose between bad, worse, and worst. And therein lay the escape route from cognitive dissonance. Confronted with evidence that many choices made in Vietnam had produced "bad" results, the Niebuhrian disciples could answer that they had prevented "worst" results.
Niebuhr's well-publicized opposition to the Vietnam War did not stop the neocons from citing his Christian Realism to justify their flawed and immoral policies in Vietnam. Niebuhr was a leader of The Clergymen Concerned about Vietnam. He continuously criticized Lyndon Johnson for what Niebuhr regarded as the fundamental error of U.S. policymakers of not recognizing historical realitythe principal issue in Vietnam was not the containment of communism, but the nationalism of a small nation in Asia that wanted to throw off the yoke of Western imperialism.
Given the Obama Administration's penchant for secrecy about its sources for extra-judicial killing, we can only speculate that Obama may have adopted the flawed and myopic reading of Niebuhr by the neocons. My extensive reading of Niebuhr, including Richard Wrightman Fox's superb, Reinhold Niebuhr: A Biography, supports the view of the more knowledgeable Niebuhr scholars including his former students, backed by Niebuhr's own words in his last book that the necons reading of Neibuhr is wrong. In Man's Nature and His Communities, 1965, 24-25, Niebuhr was clear: "It is my strong conviction that a realist conception of human nature should be made the servant of an ethic of progressive justice and should not be made into a bastion of conservatism, particularly a conservatism which defends unjust privileges."
Lastly, what Holder did not mention in his speech was what the students had probably been taught in their first year class on Constitutional Lawnot all constitutional rights are equal. The U.S. Supreme Court has placed procedural due process in the top tier of rights; what the Court calls "fundamental liberty interests." These are the rights that are absolutely essential for ordered liberty. They are given the highest level of protection in the form of what the Court calls "strict scrutiny constitutional analysis." In order to pass constitutional muster, strict scrutiny requires: (1) the government must demonstrate that there is an overriding government interest involved; and (2) the government must use the least restrictive means possible. The Obama's Administration killing of American citizens can probably meet the first test. The fight against terrorism is an overriding government interest. Killing is, of course, not the least restrictive means, just the opposite. Holder played intellectual ju-jitsu with this part of strict scrutiny when later in the speech, without mentioning strict scrutiny, he stated that "First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles." The bottom line: when the GW Bush and the Obama Administrations quixotically diminish fundamental liberty interests, they are striking a dagger at the heart of American liberty.
CONCLUSION AND A LOOK INTO THE FUTURE
This paper proposed to answer the question: Is the extra-judicial killing of an American citizen a violation of the Fifth Amendment and the centuries old tradition of due process that has defined American political values? Based on the discussion and analysis above, which showed that due process is the linchpin of American jurisprudence, the answer is "yes." American constitutional protection has never before the Obama Administration depended on the moral sanctity or depravity of individuals or made the rights and the lives of American citizens subservient to the imminent danger they might pose for the US Government. All American citizens, whether devils or saints and everything in between are entitled to, and until the Obama Administration, have received the due process protections of the United States Constitution. Due process like the biblical sun shines on the evil and the good and like the biblical rain falls on the just and unjust (Matthew 5:45).
However, there is an overarching, more important question lurking in the background of this inquiry. The Bush Administration took the first, clear steps toward an abridgement of American's civil liberties. The Obama Administration has taken a significant second step down that slippery slope. How far will this slide into totalitarian democracy go?
It is easy to imagine sometime in the not too distant future when the American homeland is subjected to another 9/11-like attack. Our leaders have repeatedly said that such an attack is inevitable. Thousands, maybe tens of thousands are dead or wounded. Big Brother, Obama, or Romney, or Santorum,or Big Sister, Hilary Rodham Clinton or Sarah Palin, or Michele Bachman,unleash the huge media apparatus of the federal government to tell Americans that the Government's Kill Committee, after the most careful deliberation including consultation with selected congressional and religious leaders who are leaders of CASA (Christian Alliance to Save America), has determined that American citizens are involved in the planning and execution of the attack. Some of the American perpetrators live in London and Berlin. Others live in the USA. This information has been obtained from intelligence sources, including a huge database of information about 40,000,000+Americns that was initially started by the Bush Administration. For years Government regulations required that an individual's information could only be kept for six months. In March 2012, the Obama Administration expanded the time to five years. Later the time was expanded to fifty years.
Information about the attack was also "harvested" (Orwell Newspeak) from the torture of a twelve year old female, the daughter of one of the leaders, who was present at the planning of the attack. Big Brother/Sister tells Americans that it is not feasible to arrest the perpetrators. They must be stopped before they continue with new attacks. Big Brother/Sister, following the precedents established by the Bush and Obama Administrations, has accepted the recommendations of the Kill Committee and ordered drone air strikes against the perpetrators both here in the USA and abroad, to deal with the perpetrators with extreme prejudice (Orwell's Newspeak for killing). Some of the drone strikes in this country will be executed by local law enforcement drones aided by federal authorities.[4] Big Brother/Sister finishes his/her speech by telling Americans, "Do not worry. The Lord Jesus with his mighty angels in flaming fire will extract divine vengeance from our enemies. God is on our side."
At this time, will the overwhelming majority of Americans be like Orwell's Winston Smith, at the end of 1984? "Two gin-scented tears trickled down the sides of his nose. But it was all right, everything was all right. He had won the victory over himself. He loved Big Brother [or Big Sister]."
ABOUT THE AUTHOR
John DiJoseph teaches biomedical ethics at the Howard University College of Medicine and a variety of courses in the Graduate Liberal Studies Program at Loyola University, Maryland, including "An Analysis of the Terrorist Mind" and "The Intelligence Services and American Culture." Dr. DiJoseph is a former Special Agent in the U.S. Army's Counterintelligence Corp(CIC). He is the author of Jacques Maritain and the Moral Foundation of Democracy, Rowman and Littlefield, 1996 and Noble Cause Corruption, the Banality of Evil and the Threat to American Democracy, 1950-2008, University Press of America, 2010.
[1] The Doolittle Report: Special Study Group, "Report on the Covert Activities of the Central Intelligence Agency," September 30, 1954, declassified August 20, 2001, CIA/CREST.
[2] The adoption has been extensively studied and analyzed. Here are a few examples: Christopher Andrew, For the President's Eyes Only: Secret Intelligence and the American Presidency from Washington to Bush, New York, Harper-Collins, 1995; Tim Weiner, Legacy of Ashes: The History of the CIA, New York, Doubleday, 2007; Nick Cullather, Secret History: The CIA's Classified Account of its Operations in Guatemala 1952-1954, Stanford, Ca., Stanford University Press, 1999; Loch K. Johnson, America's Secret Power: the CIA in a Democratic Society, New York, Oxford University Press, 1989; The Pinochet File: A Detailed Dossier on Atrocity and Accountability, New York, The New Press, 2003; Alfred W. McCoy, The Politics of Heroin: CIA Complicity in the Global Drug Trade, 2[SUP]nd[/SUP] revised ed., Chicago, Il., Lawrence Hill Press, 2003; Robert Baer, See No Evil: The True Story of a Ground Soldier in the CIA's War on Terrorism, New York, Three River Press, 2002; and Sister Diana Ortiz, The Blindfold's Eye: My Journey from Torture to Truth, Orbis Books, Maryknoll, N.Y. 2002
[3] I am indebted to Professor Irfan Khawaja, an instructor in philosophy at John Jay College of Criminal Justice, City University of New York, for his insightful review of Not A Suicide Pact in Democratiya 8 | Spring 2007
[4] At the time of this writing, about forty local law enforcement agencies have purchased drone technology.
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http://www.waynemadsenreport.com/articles/20120328
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