Due Process and the Assassination Leak
February 18, 2014
Last week the Obama administration anonymously
leaked
(under terms of anonymity obligingly offered by the Associated Press)
the information that it has decided to assassinate another American
citizen without charge or trial.
Four safely unnamed officials reassured the public of all the
soul-searching, hand-wringing and gratifyingly intense West-Wing-style
backroom drama which the Administration had undergone in the course of
its decision to kill this newest, as-yet-unnamed American, setting
itself (we are told) some genuinely difficult hoops to jump through,
which, once jumped, would of course give it the legal authority to kill
an American citizen without the mere formality of actual charges or a
trial.
“One U.S. official” (unnamed) “said the Defense Department was
divided over whether the man is dangerous enough to merit the potential
domestic fallout“ – quite the P.R. brouhaha – “of killing an American
without charging him with a crime or trying him.” However, the article
continued, “Another of the U.S. officials” (also unnamed) “said the
Pentagon did ultimately decide to recommend lethal action.”
So that’s that, then.
DUE PROCESS
The Obama Administration has so far
assassinated four Americans by drone–
specifically targeting extremist lecturer Anwar Al-Awlaki for a raft of
unevidenced crimes, and killing along with him his fellow anti-American
propagandist (and fellow American) Samir Khan, followed two weeks later
by Awlaki’s nonpolitical (and American-born) sixteen-year-old son,
apparently a nice kid, killed dining with young, similarly civilian,
friends: when questioned on the second killing, Obama campaign senior
adviser Robert Gibbs answered
“He should have had a more responsible father.”
On March 5, 2012, in defense of the Awlaki killings, Attorney General Eric Holder
addressed the nation
insisting that precisely the kind of exciting deliberative process
leaked to us today is all the “due process” ensured U.S. people by our
Bill of Rights even in cases of planned execution – the drafters of our
Constitution having carelessly failed to mention, or mention in enough
places, the specific need for any “judicial” process involving courts
and laws, foolishly considered necessary in two centuries of American
legal practice where an American was facing execution by his or her
government. Judicial, Legislative, Executive? That last office,
without need for courts or the laws they interpret, could now be judge,
jury, and executioner.
WHO WILL PILOT?
Today’s AP story spotlights
Justice Department guidelines leaked in 2013, the “prudent limits” boasted in Obama’s recent
State of the Union Address,
specifying that the Pentagon and not the CIA would perform the killing
of future American citizens, not to mention hundreds of potentially
dangerous civilians in countries with which we are not at war. All
this in compliance with Council of Foreign Relations
recommendations
intended “to ensure drone strikes do not go the way of third-country
renditions and enhanced interrogation techniques,” given the
unpopularity (66% vs. 75% approval in poll the recommendations cite), of
CIA assassinations versus those the Pentagon conducts. Pentagon
assassinations, unlike CIA hits, can be defended after the fact in the
court of public opinion.
This weekend’s soul-searching,
AP
tells us, has been chiefly a search for ways to retain these guidelines
and have Pentagon soldiers, and not CIA spies, perform the actual
assassination using the drones currently tracking the unnamed American.
However, dissenting voices such as Sen Diane Feinstein (D-CA) are quoted
insisting that the drone-savvy CIA are far more skilled at this sort of
killing, while House Intelligence Chair Mike Rogers (R-Mich) laments
“missed opportunities” for assassination when only blank check
permission for death by air can fully safeguard American lives.
Congress may indeed have tied the President’s hands, the article continues, by its
refusal to allocate
specific funding to allow a cash-strapped Pentagon to fire the needed
missile at this new target, making the pressing question that of whether
Obama’s
self-imposed guidelines
on the killing of uncharged, untried American citizens still entitle
him to legally kill a citizen without trial, if, due to their
inconvenience, he ignores them maybe just this once.
CONSTITUTIONAL WITHOUT COURTS
The article explains: “If the target is an American citizen, the Justice
Department is required to show that killing the person through military
action is “legal and constitutional”.” Not to show any judge or jury,
of course: “due process,” as Eric Holder has confirmed, no longer
entails “judicial process” and the Supreme Court at any rate has shown
every recent willingness to invoke technicalities in evading challenges
to the constitutionality of post-9/11 legal innovations.
A.P. insists that, even if the CIA shouldn’t, “the Pentagon can take
action against the American, as the administration has ruled him an
enemy combatant under the [2001] Authorization for Use of Military
Force.” This was Congress’s panicked legislative response to 9/11 which,
though it might not have specifically _mentioned_ any doctrine of White
House-designated “enemy combatants” losing all constitutional rights,
has now been interpreted as doing so by both the Bush and Obama
Administrations. Years ago, when the Bush Administration was jailing
(but not yet killing) “enemy combatants” without trial, reporters were
apt to label the “enemy combatant” doctrine controversial. But now that
Obama is not just jailing but killing the bad people against whom it
can produce no evidence, now that it defines every last corner of the
world as governed not by any civil law but by a universally precedent
Law of War, the “enemy combatant” principle is more than constitutional:
it’s downright bipartisan.
With no courts to speak of and with blank-check law left to the
President to write retroactively, all that’s left for the commanders of
our military and intelligence organizations to consider is “the
potential domestic fallout” of assassination of Americans. How will it
poll? Will it give one of the parties an advantage in its quadrennial
contest against the other, for the last office in the Government that
has any influence over the reasons for which an American is executed?
THE GIFT OF TODAY
Today’s leaks represent another historic softening of Obama
assassination policy following generous promises leaked last year, to
_try_ and have soldiers rather than spies do the killing, whether of
Americans without trial or foreign civilians without number, on a newly
declared global battlefield where no law but the Law of War remains.
Not that the Executive Branch’s former rivals to power, the courts or
the legislature, will be relevant to the process: this is “due process”
and doesn’t need to be “judicial”: but they might let the Pentagon in
instead of giving the CIA sole access, which is apparently supposed to
be a balance of power.
And the press! Today’s leaks go even beyond empowering the Pentagon,
with the exciting promise of an assassination list that may still have
been drafted behind closed White House doors, but this time with
exciting press leaks accompanying them. This is openness. Democracy!
The sources can’t be identified, lest they be called upon to defend
what they’re witnessed and said: but when an unnamed American is to be
killed, to prevent crimes they haven’t actually committed but might even
now be planning, we will not be denied our celebrity gossip. We
breathlessly await the reveal of their name, along with the star footage
the drone will have filmed of their Gala Event, their Candid Camera
surprise. We might even get a few more hints of why it had to
happen. Through the press, in leaks and speeches, lip service will
continue to be paid to the principles on which our country was founded
and which it has nostalgically, lovingly outgrown – new rules will be
thrown up and then only partly broken so as to avoid “domestic fallout,”
measured not in prison sentences for rogue politicians using lethal
force, but ratings dips.
Lip service will have a new name. We’re already calling it “due process.”