First, a side bar–had you been reading TCA, you would have all along been informed about the outrageous assassination regime instituted by President Obama, who decided that he would kill, instead of capture and torture (presumably his answer to Guantanamo Bay, which he had promised to close, but hasn’t quite got around to yet), anyone suspected of terrorism, including US citizens.
Democrats nowadays call their political philosophy “progressive”, having abandoned the old moniker of “liberal” as burdened with too much negative baggage. Well now, I’d say assassinating via pilotless drone with no oversight except the Chief Executive’s is quite a progression from simply capturing and torturing and incarcerating them at Gitmo. Such progress from the progressives.
But now, they’re finally beginning to realize the Frankensteinian President they have helped create might just be a monster. Here’s Eugene Robinson of the Washington Post, with whom I almost never agree, at least until now:
If George W. Bush had told us that the “war on terror” gave him the right to execute a U.S. citizen overseas with a missile fired from a drone aircraft, without due process or judicial review, I’d have gone ballistic. It makes no difference that the president making this chilling claim is Barack Obama. What’s wrong is wrong.
I’ve said it many times myself, Mr. Robinson. Indeed, wrong is wrong. And allowing a President to kill US citizens at his own whim, with absolutely no oversight or control from either of the other branches of government is simply, and profoundly wrong.
Where are the courts? The Supreme Court regularly issues nonsensical, Talmudic rulings on whether or not a holiday display depicting the manger scene violates the Establishment Clause of the First Amendment. But it remains silent on whether the Constitution prohibits depriving a US citizen of his life without any legal process whatsoever? What a bunch of mealy-mouthed cowards wear those hallowed robes. Constitutional law professor, Noah Feldman, writing for Bloomberg.com offers the following assessment of the legalities of assassinating US citizens by pilotless drone:
The cases cited by the white paper provide no precedent for the idea that due process could be satisfied by some secret, internal process within the executive branch — not that any such process is even mentioned. The reason they don’t is obvious: There is no such precedent. Never, to my knowledge, in the history of due process jurisprudence, has a court said that a neutral decision maker wasn’t necessary. And as Justice Felix Frankfurter wrote in language cited in the Mathews case, “the essence of due process is the requirement that a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it.”
Although the white paper doesn’t say so, Awlaki even tried to get a hearing before he was killed. His father asked a federal court to find that he wasn’t a terrorist. But the court never heard his claim, because the Obama administration persuaded it not to consider the case.
The “white paper” to which he refers is a legal memorandum prepared at Obama’s request by his own Office of Legal Counsel which purports to offer a defensible rationale under which the assassination regime might be considered legal. The paper is utter nonsense, citing a case involving torture (which is not nearly as progressive as murder) and another one on whether or not Social Security benefits can be denied without a hearing. That sounds about right for this Administration, though. Equating Social Security benefits with one’s life. What progress. Even were the paper not nonsense, it would necessarily require heavy discounting, as its commissioning was tantamount to a potential defendant hiring a law firm to justify his actions. The Office of Legal Counsel is essentially the President’s in-house law firm. They are hired to conjure legal justifications for whatever the President wants to do, just like a law firm does in advising a business client.
Feldman notes that the protection of legal rights, as apply to life, liberty and property, heavily depend on the process through which they might be deprived, which is just as the Constitution provides in its Fifth Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense 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; nor shall private property be taken for public use, without just compensation.
I don’t care how rabbinically clever are the lawyers in the Office of Legal Counsel, there is simply no possible way that the killing of US citizens, with nothing in the way of process except that the Chief Executive says, “Trust me”, would stand constitutional muster.
But then, I have often noted that the US seems poised on the cusp of imperial rule. Congress has no national political clout as it has become the stage upon which the political divisiveness plaguing the country is acted out. The Supreme Court spent its political capital way back in the seventies, when it most remarkably found in the Constitution a right for a woman to abort a pregnancy in the shadowy penumbra of the Bill of Rights. So it is to the Chief Executive that all national leadership issues resolve. And he decides to use the power laid at his feet to assassinate his own citizens.
If the Constitution allows the Executive the discretion to assassinate US citizens to whom its protections apply then the Constitution is nothing more than an anachronism, a relic of a bygone day. The constitutional republic is dead. And the guy who killed it is one who claims he is the legacy of the guy who saved it roughly seven score and eight years ago. Lincoln must be rolling in his grave.