There is something of a master narrative of the early Obama administration currently emerging into view, issue by issue. It goes like this: A given situation is in a disastrous state of disarray when the new president and his staff take the reins. A rough and unsteady policy consensus forms among area experts and crucial political actors about how to move forward. At this point, the administration starts pushing a course of action designed to hold the political center. Those to the president’s left are consistently disappointed, but only sometimes outraged. While many Republicans are initially responsive, the party’s more conservative arm rallies its grass-roots base against cooperation.
The GOP then, like Lucy in "Peanuts," yanks the football away: Party leaders denounce the centrist compromise as radical and dangerous, and employ procedural tactics to stall while building their case with the electorate. By this point in the process, the compromise stance begins to wilt in the face of hardening public opinion. The emboldened opposition intensifies its attacks, the administration retreats, and whichever disastrous situation is being debated -- the job market, say -- continues to deteriorate. The administration, appearing ineffectual and counterproductive, loses much of its remaining purchase on public opinion on this particular issue.
This story is an obviously recognizable one on many of the signal issues of Barack Obama’s presidency thus far. The healthcare fight is the one that fits this pattern most tightly -- and painfully -- but conflicts over stimulating the economy, slowing climate change, and stabilizing and regulating Wall Street have all looked more or less like this. A bit more surprisingly, so has the increasingly vicious debate on what the legal response to terrorism ought to be.
Politico today reports that Senate Minority Leader Mitch McConnell, ever a sly political fox, has found his wedge issue for the midterm elections: the trial of Khalid Sheikh Mohammed, and the president and administration’s incomprehensible (partial) commitment to the rule of law. He's launching what is described as a "relentless, blistering" attack on the administration. Says McConnell, "The core question is whether the attorney general of the United States ought to be in charge of the war on terror. And the answer is no."
This is the end stage of the process. In an excellent article in the current New Yorker, reporter Jane Mayer traces the whole unpleasant business up to this point. When Obama came into office, there was widespread, if not universal, agreement that President Bush’s legal approach to terrorism and detention had to change. Washington wise men like former Secretary of State Colin Powell had largely turned against the administration’s harsh methods, which were of questionable effectiveness and dubious legality. The Supreme Court had rebuked Bush and his aides several times, and even Bush himself said of the prison at Guantánamo, "I’d like it to be over with." Sen. John McCain, R-Ariz., repeatedly called for closing the base while running for president. (However, foreshadowing what lay ahead, then-candidate Mitt Romney responded to McCain by saying Guantánamo should be doubled.)
But once the president and Attorney General Eric Holder tried to implement the plan they thought had gained the consensus position, everything came apart. The efforts to transfer detainees to the United States provoked a "not-in-my-backyard" backlash in Congress. Then a pair of attacks on Americans, at Fort Hood and on a flight to Detroit, unnerved politicians and, apparently, voters. The parallel idea of trying Khalid Sheikh Mohammed in lower Manhattan -- a location chosen because of its high security -- caught fire in the Massachusetts special election for Senate, and according to a consultant for eventual winner Scott Brown, became the most potent issue the Republican had to run on. Moderates like New York Mayor Mike Bloomberg and California Sen. Dianne Feinstein, once supportive of the idea of trying Mohammed in New York, got the willies. Sen. Chuck Schumer, D-N.Y., who had once pledged his support to Holder, called the idea of moving the trial away from New York "obvious."
Even within the administration, attacks on Holder have mounted as he’s pursued an agenda that seems to be weakening the president politically. White House Chief of Staff Rahm Emanuel, as always concerned with keeping a friendly majority in Congress, accused the attorney general of endangering his relationship with key Sen. Lindsey Graham, R-S.C. Said Emanuel, "If we don’t have Graham, we can’t close Guantánamo, and it’s on Eric!"
The rule of law is different from, say, healthcare, in that the attorney general doesn’t have to -- and isn’t supposed to, bow to political necessity. Holder seems to believe that he can just push through what is, by his judgment, the best legal course. He told Mayer last month,
This is something that can get a rise out of me, the notion that somehow Eric Holder and Barack Obama, this administration, is not tough. We have the welfare of the American people in our minds all the time. We’ll fight our enemies, and we’ll do that which is necessary, and we won’t turn our backs on the values and traditions that have made this country great. That is what is tough.
Maybe, over time, heat from the public and from the Republicans will dissipate on this, as it did slowly over the course of the last decade before resurging this year. For the moment, though, the GOP is planning to score every point it can. Don’t take it from me -- take it from McConnell: "I’d be the last one to suggest that absolutely everything the administration does is incorrect. When we think that they’re on the right path, they’ll find Republican support." The minority leader continued, "Would I love to have the election tomorrow? I sure would. Early signs are that this could be a good year, but we have a long way to go."
Urging the Justice Department to move the trial of al-Qaida leader Khalid Sheikh Mohammed and his accomplices from Manhattan's federal courthouse to a more remote location, Mayor Michael Bloomberg suggests that he is merely talking common sense. Holding the KSM trial downtown will cost too much money, says the mayor, and "disturb" too many people.
Actually, Bloomberg was closer to the mark when he first commented on the pending trial last December. As he told reporters then: "It is fitting that 9/11 suspects face justice near the World Trade Center site where so many New Yorkers were murdered." As long ago as last November, he had received assurances from Attorney General Eric Holder that the federal government would not expect the city to pay the huge security costs of the trial.
But with the real estate industry, Sen. Charles Schumer and Wall Street demanding that the trial be moved -- along with the Republican congressional leaders and a host of right-wing blatherers -- Bloomberg quickly dropped his own instinctive principle. Why didn't he inflate the cost -- and ask the Obama administration to pay the estimated $200 million -- before he endorsed the Manhattan location? And why did he choose to blindside the president -- who helped him win an amazingly close election last year with a tepid endorsement of the Democrat? With his exploding cost estimates and subsequent flip-flop, Bloomberg looks unreliable, untrustworthy and unserious.
There happens to be a strong argument for Bloomberg's instinctive first response, as Peter Bergen and Karen Greenberg pointed out in a highly perceptive CNN.com essay titled "Why the 9/11 Trial Belongs in New York." Bergen, a highly respected international expert on al-Qaida, and Greenberg, who heads New York University's Center on Law and Security (and lives and works about a mile north of ground zero), note that if necessary the trial could be moved to one of the other four boroughs -- or to Governor's Island, a former military base in New York harbor that is a short ferry ride from the downtown neighborhood ravaged on 9/11. They offer two compelling reasons:
"The courts in New York are unusually well-prepared to try Mohammed. Although the federal courts in general have a strong conviction record in trying terrorism crimes, New York's federal courts have won a 100 percent conviction rate on terrorism trials.
"Before 9/11 as well, New York courts successfully prosecuted, convicted and imprisoned for life the likes of the 'Blind Sheikh' Omar Abdel Rahman; the al Qaeda bombers who launched the attacks on the embassies in Kenya and Tanzania in 1998; and the plotters of the first Trade Center attack five years earlier.
"And New York City is now preparing for the trial of Ahmed Khalfan Ghailani, an al Qaeda member allegedly involved in the 1998 embassies bombings who, unbeknownst to most New Yorkers, has been living in prison in the city for nearly eight months, without incident…
"... Most important of all, perhaps, is that the fearfulness of New York authorities feeds a sense of learned insecurity that has dominated the U.S. since 9/11. By contrast, the American military families posted to Guantanamo Bay chose to stay when they learned that suspects who they legitimately believed were the worst of the worst terrorists would be imprisoned there. They did this because they trusted U.S. troops to protect them.
"The backing down of the Obama administration ... signals weakness and fear. Rather than facing our enemies by showing confidence in ourselves as a nation that knows how to protect itself, our government leaders have let us know that they do not trust our institutions to protect us, an idea that should be intolerable to Americans."
There is also a strong argument for the Obama administration to stand up to Bloomberg and the rest of the fear chorus -- as Richard Clarke, the former counterterrorism advisor to Presidents Bush and Clinton, noted in a brave Sunday News essay on the politics of terrorism.
The genuinely tough Clarke is not fazed by the bombastic rhetoric of the neoconservatives, who are trying to frighten New Yorkers so they can harm Obama -- even at the cost of humiliating the United States in the face of its enemies. As Clarke recalls, correctly, "There were numerous al-Qaida trials in Manhattan when Rudy Giuliani was mayor and the world did not end. Yes, Manhattan will become a target of al-Qaida if a trial takes place there. But it already is target No. 1 for al-Qaida; it can't get any more so.
"The evidence is clear that the GOP talking point machine, repeated by Fox television commentators and others, does not bother to learn the facts about terrorism before they leap to attacking the party in power's handling of the issue. They are wrong on the facts and they are wrong morally to attempt to make political gain on the damage inflicted by terrorism."
As the Republicans foment hysteria around the 9/11 trial -- and pretend that hiding KSM on a military base would somehow be more macho -- it is hard not to remember the old slogan from the authoritarian world of Orwell's 1984: Weakness is strength.
(updated below)
If I had the power to have one statement of fact be universally recognized in our political discussions, it would be this one:
The fact that the Government labels Person X a "Terrorist" is not proof that Person X is, in fact, a Terrorist.
That proposition should be intrinsically understood by any American who completed sixth grade civics and was thus taught that a central prong of our political system is that government officials often abuse their power and/or err and therefore must prove accusations to be true (with tested evidence) before they're assumed to be true and the person punished accordingly. In particular, the fact that the U.S. Government, over and over, has falsely accused numerous people of being Terrorists -- only for it to turn out that they did nothing wrong -- by itself should compel a recognition of this truth. But it doesn't.
All throughout the Bush years, no matter what one objected to -- illegal eavesdropping, torture, rendition, indefinite detention, denial of civilian trials -- the response from Bush followers was the same: "But these are Terrorists, and Terrorists have no rights, so who cares what is done to them?" What they actually meant was: "the Government has claimed they are Terrorists," but in their minds, that was the same thing as: "they are Terrorists." They recognized no distinction between "a government accusation" and "unchallengeable truth"; in the authoritarian's mind, by definition, those are synonymous. The whole point of the Bush-era controversies was that -- away from an actual battlefield and where the Constitution applies (on U.S. soil and/or towards American citizens wherever they are) -- the Government should have to demonstrate someone's guilt before it's assumed (e.g., they should have to show probable cause to a court and obtain warrants before eavesdropping; they should have to offer evidence that a person engaged in Terrorism before locking them in a cage, etc.). But to someone who equates unproven government accusations with proof, those processes are entirely unnecessary. Even in the absence of those processes, they already know that these persons are Terrorists. How do they know that? Because the Government said so. Even when it comes to their fellow citizens, that's all the "proof" that is needed.
That authoritarian mentality is stronger than ever now. Why? Because unlike during the Bush years, when it was primarily Republicans willing to blindly trust Government accusations, many Democrats are now willing to do so as well. Just look at the reaction to the Government's recent attempts to assassinate the U.S.-born American citizen and Islamic cleric Anwar al-Awlaki. Up until last November, virtually no Americans had ever even heard of al-Awlaki. But in the past few months, beginning with the Fort Hood shootings, government officials have repeatedly claimed that he's a Terrorist: usually anonymously, with virtually no evidence, and in the face of al-Awlaki's vehement denials but without any opportunity for him to defend himself (because he's in hiding out of fear of being killed by his own Government). The Government can literally just flash someone's face on the TV screen with the word Terrorist over it (as was done with al-Awlaki), and provided the face is nefarious and Muslim-looking enough (basically the same thing), nothing else need be offered.
That's enough for many people -- including many Democrats -- to march forward overnight and mindlessly proclaim that al-Awlaki is "a declared enemy of the United States working to kill Americans" (if you can stomach it, read some of these comments -- from Obama defenders at a liberal blog -- with several sounding exactly like Dick Cheney, screeching: "Of course al-Awlaki should be killed without charges; he's a Terrorist who is trying to kill Americans!!!"). Even now, beyond government assertions about his associations, the public knows virtually nothing about al-Awlaki other than the fact that he's a Muslim cleric with a Muslim name dressed in Muslim garb, sitting in a Bad Arab Country expressing anger towards the actions of the U.S. and Israel. But no matter. That's more than enough. They're willing not only to mindlessly embrace the Government's unproven accusation that their fellow citizen is a TERRORIST ("a declared enemy of the United States working to kill Americans"), but even beyond that, to cheer for his due-process-free execution like drunken fans at a football game. And the same people declare: no civilian trials are necessary for Terrorists (meaning: people accused by the Government of being Terrorists). Even more amazingly, the identities of the other Americans on the hit list aren't even known, but that's OK: they're Terrorists, because the Government said so.
A very long time ago, I would be baffled when I'd read about things like the Salem witch hunts. How could so many people be collectively worked up into that level of irrational frenzy, where they cheered for people's torturous death as "witches" without any real due process or meaningful evidence? But all one has to do is look at our current Terrorism debates and it's easy to see how things like that happen. It's just pure mob mentality: an authority figure appears and affixes a demonizing Other label to someone's forehead, and the adoring crowd -- frothing-at-the-mouth and feeding on each other's hatred, fears and desire to be lead -- demands "justice." I imagine that if one could travel back in time to the Salem era in order to speak with some of those gathered outside an accused witch's home, screaming for her to be killed, the conversation would go something like this:
Mob Participant: Hang the Witch!!! Kill her!!!
Far Left Civil Liberties Extremist-Purist ("FLCLE-P"): How do you know she's a witch?
Mob Participant: Didn't you just hear the government official say so?
FLCLE-P: But don't you want to see real evidence before you assume that's true and call for her death?
Mob Participant: You just heard the evidence! The magistrate said she's a witch!
FLCLE-P: But shouldn't there be a real trial first, with tangible evidence and due process protections, to see if the accusation is actually true?
Mob Participant: A "real" trial? She's a witch! She's trying to curse us and kill us all. She got more than what she deserved. Witches don't have rights!!!
Return to Question 1.
That's essentially how I hear our debates over Terrorism, and how I've heard them for quite some time. And it's how I hear them more loudly now than ever before. And with those deeply confused premises now locked into place on a bipartisan basis ("no trials are needed to determine if someone is a Terrorist because Terrorists don't have rights"), imagine how much louder that will get if there is another successful terrorist attack in the U.S. But in fairness to the 17th Century Puritans, at least the Salem witches received pretenses of due process and even trials (albeit with coerced confessions and speculative hearsay). Even when it comes to our fellow citizens, we don't even bother with those. For us, the mere accusation by our leaders is sufficient: Kill that American Terrorist with a drone!
UPDATE: A long-time, regular commenter here, Jestaplero, is a state prosecutor in New York, and he explains -- in this comment -- how the mentality discussed here can and does easily expand beyond the realm of Terrorism.
Interestingly, even Allahpundit at Michelle Malkin's Hot Air recognizes the serious dangers in allowing the Government to decree even U.S. citizens to be "Terrorists" and then treat them accordingly, with no due process. But note how his right-wing commenters are almost exclusively of the "just-kill-him" school of thought, and how identical they sound to that minority of Daily Kos commenters I linked above who, in their blind loyalty to Obama, also insist that there's nothing wrong with simply snuffing out the lives of their fellow citizens who are "Terrorists" (meaning: anyone their Leader claims is a Terrorist) with no due process or oversight whatsoever. Ultimately, authoritarians are authoritarians, regardless of whether they situate themselves on the left or right.
Fans of "Calvin and Hobbes" may remember "Calvinball," the much-loved game that was sometimes featured in the comic strip. Long story short, the rules to "Calvinball" are constantly changing, and nearly always unknown -- which makes it easy for Calvin to suddenly announce a rule change that helps him. Sometimes, politics is a lot like that.
The right has been getting a lot of mileage lately out of its criticism of the way the Obama administration handled the arrest and interrogation of Umar Farouk Abdulmutallab, the man who allegedly tried to blow up a Northwest plane as it neared Detroit on Christmas Day. They've done this despite copious evidence that Abdulmutallab wouldn't have been treated any differently under the Bush administration, or at least that people in similar situations -- like shoe bomber Richard Reid -- were treated the same way Abdulmutallab was.
Little details like that haven't stopped the critics, especially as they've focused on the fact that Abdulmutallab was read his Miranda rights and allegedly stopped cooperating immediately afterwards. (In fact, Abdulmutallab was reportedly only Mirandized after he'd stopped talking.)
The White House has been fighting back, though, and as part of that effort, on Tuesday administration officials told reporters that Abdulmutallab has begun cooperating again. Methods softer than those the right would prefer were employed: Rather than waterboarding him, authorities brought some of Abdulmutallab's family to the U.S. and allowed him to see them.
Sen. Kit Bond, R-Mo., the ranking member of the Senate Intelligence Committee, wasn't happy about that public disclosure. In a scathing letter to President Obama, Bond wrote, "This information immediately hit the air waves globally and, no doubt, reached the ears of our enemies abroad." He added that the news "has no doubt been helpful to his terrorist cohorts around the world" and said, "Consider the consequences of publicly disseminating sensitive information vital to the defense of the American people. I do not believe the American people want this information jeopardized to further political arguments."
Bond does have one legitimate point in that he says members of Congress briefed on Abdulmutallab's cooperation were initially told that it was important that fact a secret. But the information essentially came out anyway during Senate hearings this week, and that led to the administration's decision to brief reporters.
Moreover, Bond has to know that he and his fellow Republicans aren't blameless here. They can't seriously expect to be able to take potshots at the administration's handling of terror cases without prompting some sort of response -- once you've started politicizing the issue, it's hard to call for that politicization to stop. If the GOP's worried about the consequences of that, it might want to take a hard look at its criticism of the way Obama's handling terrorism and decide what are actually legitimate points that need to be raised and what's just political grandstanding; all too often, it seems, the focus is much more on the latter.
Update: At his briefing on Thursday, White House Press Secretary Robert Gibbs called on Bond to apologize, saying, "The notion that somehow the White House, in conjunction with agencies involved in this interrogation, gave out classified information? I think an apology on that is owed, because it's not true."
Bond wasn't having any of it, saying in a statement, "After telling me to keep my mouth shut, the White House discloses sensitive information in an effort to defend a dangerous and unpopular decision to Mirandize Abdulmutallab and I’m supposed to apologize?"
Separately, on his blog, Andrew Sullivan's posted a letter from a reader who argues that Reid and Abdulmutallab shouldn't have been Mirandized because it simply wasn't necessary in their cases. We can debate procedure, but the letter's worth reading if only because it's a good, succinct explanation of the way Miranda works.
What a lot of people don't understand -- certainly what gets missed when people like Rush Limbaugh start worrying about hypothetically reading Osama bin Laden his rights -- is that the right at issue is about self-incrimination. In short, if you've already given the goverment all it needs to convict you by, say, trying to blow yourself up in front of a plane full of witnesses, then the police can talk to you indefinitely without ever Mirandizing you; they just can't use what you say during that interrogation against you in court. They can, however, still use it to investigate others, and potentially to prosecute them, though that depends on other circumstances as well.
The fragile Pakistani government of Prime Minister Yusuf Raza Gilani and President Asaf Ali Zardari was deeply embarrassed Wednesday when a massive bombing killed three U.S. soldiers on the ground in that country. The Pakistani public has been increasingly upset about U.S. military and paramilitary (Blackwater/Xe) actions in their country. On Tuesday, several U.S. drone strikes killed a total of 29 persons. The controversy over whether the U.S. is actually fighting a third war, in Pakistan, may have been settled by the troop deaths.
On Wednesday morning, a suicide car bomber slammed into a Frontier Corps convoy of vehicles heading to inaugurate a girls school in the village of Kad, in the Lower Dir district of northwest Pakistan, killing seven and wounding at least 130. Among the dead were three U.S. troops in Pakistani dress and a Frontier Corpsman. The others were schoolgirls. The attack occurred as the convoy was reaching two girls' schools, one an elementary school and one a high school rebuilt with U.S. funds. The force of the blast collapsed the high school's walls, but it was empty. Most of the wounded were schoolgirls in the elementary school, hit by flying glass and debris; ironically, given that the Taliban claim to be Muslims, some were having their class on Islam when the shrapnel hit them.
The bombing was claimed by the Tehrik-i Taliban Pakistan (Taliban Movement of Pakistan), according to Agence France Presse: "We claim responsibility for the blast," Tehreek-e-Taliban Pakistan (TTP) spokesman Azam Tariq said in the call from an undisclosed location. "The Americans killed were members of the Blackwater group. We know they are responsible for bomb blasts in Peshawar and other Pakistani cities."
Many Pakistanis believe that the wave of bombings besetting their country, blamed by the mainstream on the Taliban, is secretly carried out by American agents, in order to destabilize Pakistan and justify a U.S. imperial presence.
The bombing differs little from numerous other such attacks in the frontier badlands, but is distinctive because it accidentally revealed that some 200 U.S. troops are on the ground in Pakistan, some 60-100 on a training mission. Those killed had been giving training and support to the Frontier Corps, a Pakistani unit charged with policing the lawless Pashtun areas on the border between Pakistan and Afghanistan.
The News says,
The U.S. soldiers were apparently in the area to train the FC [Frontier Corps] personnel engaged in the military operation against the Taliban in Maidan, which is the native area of Tanzim Nifaz Shariat-e-Muhammadi's [Organization for the Implementation of the Law of Muhammad's] jailed chief Maulana Sufi Muhammad. The Taliban group in the area was commanded by Hafizullah, who had escaped the action.
The Daily Times notes, "Local authorities appear confused by the foreign troops’ plans to attend the inauguration of the school, as “they had little role in the project."
But in fact, The Guardian reveals,
The attack also highlighted an even less well-known civilian aid scheme: a retired U.S. official said the defence department had been discreetly funding development projects such as schools in North West Frontier for years. The targeted soldiers could have been going to the school in Dir as "a show of solidarity" with their Pakistani colleagues, he said.
The targeting of the convoy by truck bomb strongly suggests that the operation was an assassination aimed at the U.S. troops, and further suggests that the Taliban had a man on the inside among the Frontier Corps, who could report the Americans' movements. The U.S. military is known to use jamming technology that interferes with the detonation of roadside bombs by remote control, so that ramming by car bomb would be the only way an insurgent group could bomb them.
Al-Jazeera English has video:
Opinion polls show that many observers in Pakistan already feel that the U.S. is humiliating their country and sowing discord there, and this revelation of the presence of U.S. troops on the ground, along with the Department of Defense role in building girls' schools, will further raise hackles (and risks making girls' schools unpopular even among non-Taliban).
The USG Open Source Center translated an editorial by Dr Hussein Ahmed Paracha: "How Much Dignity is Left?", published in Nawa-e Waqt in Urdu on January 18, 2010, which exemplified this point of view:
The United States has been attacking within Pakistani land with drones for the last four to five years and is also killing innocent people. . . There were 44 drone attacks in 2009 alone in which more than 700 innocent people, majority of whom were innocent children, elderly, and women, were killed. According to the statistics provided by various agencies, those who belonged to "Al-Qa'ida" or the Taliban could not be more than 18. . .
Having made sure that the wealth of our national dignity has turned to ashes and the last flame has burned down, the U.S. Administration has now announced a program of naked screening for the passengers coming from a few countries. All these countries are Muslim countries, and Pakistan is one of them. Yes, the same Pakistan, which is the frontline U.S. ally in war against terror. Pakistan has danced to death in others' parties and has made fun of itself. It is the same Pakistan, which left its citizens starving and spent $35 billion in others' war. . .
The United States is bent on treating us shamelessly. Moreover, we pay too much regard to anyone coming from the United States. The Blackwater operatives, who committed heinous and inhuman crimes in Iraq, come wherever they please in Pakistan without visa or travel document. They keep on roaming around in vehicles with fake number plates with dangerous weapons. These U.S. officials point guns at the security people if asked to reveal their identity. During a few minutes debate, there is a series of phone calls from the high officials, and they, who consider Pakistan as their playground, are allowed to go with honor
In an opinion poll done last summer, 64 percent of the Pakistani public said that they saw the U.S. as an 'enemy,' and only 9 percent saw it as an ally.
Pakistan was born out of the freedom struggle against British colonial domination, which aimed at securing independence for what had been branded as 'British India' and an end to control of the place by foreign Western white Christian troops. The return of such troops to Pakistani soil under an American guise will be highly unwelcome to most Pakistanis. Now that Pakistan is having parliamentary elections again, moreover, it matters what the public thinks, because they could well vote for anti-American parties in the next polls, as part of a backlash against U.S. intervention.
Last week, I wrote about a revelation buried in a Washington Post article by Dana Priest which described how the Obama administration has adopted the Bush policy of targeting selected American citizens for assassination if they are deemed (by the Executive Branch) to be Terrorists. As The Washington Times' Eli Lake reports, Adm. Dennis Blair was asked about this program at a Congressional hearing yesterday and he acknowledged its existence:
The U.S. intelligence community policy on killing American citizens who have joined al Qaeda requires first obtaining high-level government approval, a senior official disclosed to Congress on Wednesday.
Director of National Intelligence Dennis C. Blair said in each case a decision to use lethal force against a U.S. citizen must get special permission. . . .
He also said there are criteria that must be met to authorize the killing of a U.S. citizen that include "whether that American is involved in a group that is trying to attack us, whether that American is a threat to other Americans. Those are the factors involved."
Although Blair emphasized that it requires "special permission" before an American citizen can be placed on the assassination list, consider from whom that "permission" is obtained: the President, or someone else under his authority within the Executive Branch. There are no outside checks or limits at all on how these "factors" are weighed. In last week's post, I wrote about all the reasons why it's so dangerous -- as well as both legally and Consitutionally dubious -- to allow the President to kill American citizens not on an active battlefield during combat, but while they are sleeping, sitting with their families in their home, walking on the street, etc. That's basically giving the President the power to impose death sentences on his own citizens without any charges or trial. Who could possibly support that?
But even if you're someone who does want the President to have the power to order American citizens killed without a trial by decreeing that they are Terrorists (and it's worth remembering that if you advocate that power, it's going to be vested in all Presidents, not just the ones who are as Nice, Good, Kind-Hearted and Trustworthy as Barack Obama), shouldn't there at least be some judicial approval required? Do we really want the President to be able to make this decision unilaterally and without outside checks? Remember when many Democrats were horrified (or at least when they purported to be) at the idea that Bush was merely eavesdropping on American citizens without judicial approval? Shouldn't we be at least as concerned about the President's being able to assassinate Americans without judicial oversight? That seems much more Draconian to me.
It would be perverse in the extreme, but wouldn't it be preferable to at least require the President to demonstrate to a court that probable cause exists to warrant the assassination of an American citizen before the President should be allowed to order it? That would basically mean that courts would issue "assassination warrants" or "murder warrants" -- a repugnant idea given that they're tantamount to imposing the death sentence without a trial -- but isn't that minimal safeguard preferable to allowing the President unchecked authority to do it on his own, the very power he has now claimed for himself? And if the Fifth Amendment's explicit guarantee -- that one shall not be deprived of life without due process -- does not prohibit the U.S. Government from assassinating you without any process, what exactly does it prohibit? Noting Scott Brown's campaign to deny accused Terrorists access to lawyers and a real trial, Adam Serwer wrote:
This is the new normal for Republicans: You can be denied rights not through due process of law but merely based on the nature of the crime you are suspected of committing.
That's absolutely true, but that also perfectly describes this assassination program -- as well as a whole host of other now-Democratic policies, from indefinite detention to denial of civilian trials.
* * * * *
The severe dangers of vesting assassination powers in the President are so glaring that even GOP Rep. Pete Hoekstra is able to see them (at least he is now that there's a Democratic President). At yesterday's hearing, Hoekstra asked Adm. Blair about the threat that the President might order Americans killed due to their Constitutionally protected political speech rather than because they were actually engaged in Terrorism. This concern is not an abstract one. The current controversy has been triggered by the Obama administration's attempt to kill U.S. citizen Anwar al-Awlaki in Yemen. But al-Awlaki has not been accused (let alone convicted) of trying to attack Americans. Instead, he's accused of being a so-called "radical cleric" who supports Al Qaeda and now provides "encouragement" to others to engage in attacks -- a charge al-Awlaki's family vehemently denies (al-Awlaki himself is in hiding due to fear that his own Government will assassinate him).
The question of where First Amendment-protected radical advocacy ends and criminality begins is exactly the sort of question with which courts have long grappled. In the 1969 case of Brandenburg v. Ohio, the Supreme Court unanimously reversed a criminal conviction of a Ku Klux Klan leader who -- surrounded by hooded indivduals holding weapons -- gave a speech threatening "revengeance" against any government official who "continues to suppress the white, Caucasian race." The Court held that the First Amendment protects advocacy of violence and revolution, and that the State is barred from punishing citizens for the expression of such views. The Brandenburg Court pointed to a long history of precedent protecting the First Amendment rights of Communists to call for revolution -- even violent revolution -- inside the U.S., and explained that the Government can punish someone for violent actions but not for speech that merely advocates or justifies violence (emphasis added):
As we [395 U.S. 444, 448] said in Noto v. United States, 367 U.S. 290, 297 -298 (1961), "the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action." See also Herndon v. Lowry, 301 U.S. 242, 259 -261 (1937); Bond v. Floyd, 385 U.S. 116, 134 (1966). A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.
From all appearances, al-Awlaki seems to believe that violence by Muslims against the U.S. is justified in retaliation for the violence the U.S. has long brought (and continues to bring) to the Muslim world. But as an American citizen, he has the absolute Constitutional right to express those views and not be punished for them (let alone killed) no matter where he is in the world; it's far from clear that he has transgressed the advocacy line into violent action. Obviously, there are those who justify such assassination powers on the ground that radical Islam is a grave threat, but that is what is always said to justify Constitutional abridgements (it was obviously said of Communists and war critics during World War I). Indeed, in light of episodes like the Timothy McVeigh bombing and the various attacks on abortion clinics, shouldn't those who want the President to be able to assassinate American "radical clerics" without a trial also support the President's targeting of Americans who advocate extremism or violence from a far right or extremist Christian perspective? What's the principle that allows one but not the other?
In response to these concerns, Admiral Blair said yesterday: "We don't target people for free speech. We target them for taking action that threatens Americans or has resulted in it." But the U.S. Government -- like all governments -- has a long history of viewing "free speech" as a violent threat or even Terrorism. That's why this is exactly the type of question that is typically -- and is intended to be -- resolved by courts, according the citizen due process, not by the President acting alone. That's especially true if the death penalty is to be imposed.
But Obama's presidential assassination policy completely short-circuits that process. It literally makes Barack Obama the judge, jury and executioner even of American citizens. Beyond its specific application, it is yet another step -- a rather major one -- towards abandoning our basic system of checks and balances in the name of Terrorism and War.
* * * * *
That last point is the most important one here. Atrios wrote the other day that a central prong in the Washington consensus is that "all it takes to nullify the constitution is to call someone a terraist." That's absolutely true, but a close corollary is that merely uttering the word "war" justifies the same thing. That's particularly dangerous given that, by all accounts, this is a so-called "war" that will not end for a generation, if ever. To justify the abridgment or even suspension of the Constitution on the ground of "war" is to advocate serious alterations to our Constitutional framework that are more or less permanent. Several points about that "war" excuse:
First, there's no "war exception" in the Constitution. Even with real wars -- i.e., those involving combat between opposing armies -- the Constitution actually continues to constrain what government officials can do, most stringently as it concerns U.S. citizens. Second, strictly speaking, we're not really "at war," as Congress has merely authorized the use of military force but has not formally or Constitutionally declared war. Even the Bush administration conceded that this is a vital difference when it comes to legal rights. In 2006, the Bush DOJ insisted that the wartime provision of FISA -- allowing the Government to eavesdrop for up to 15 days without a warrant -- didn't apply because Congress only enacted an AUMF, not a declaration of war (click image to enlarge):
The Bush DOJ went on to explain that declarations of war trigger a whole variety of legal effects (such as terminating diplomatic relations and abrogating or suspending treaty obligations) which AUMFs do not trigger (see p. 27). To authorize military force is not to declare war. Finally, the U.S. is fighting numerous undeclared wars, including ones involving military action: given that our "War on Drugs" continues to rage, should the U.S. Government be able to target accused "drug kingpins" for assassination without a trial, the way we attempted to do in Afghanistan? After all, Terrorists blow up airplanes but Drug Kingpins kill our kids!!! The mindset that cheers for unlimited Presidential powers in the name of "war" invariably leads to exactly these sorts of expansions.
Far beyond the specific injustices of assassinating Americans without trials, the real significance, the real danger, is that we continue to be frightened into radically altering our system of government. In Slate yesterday, Dahlia Lithwick encapsulated this problem perfectly; her whole article should be read, but this excerpt is superb:
America has slid back again into its own special brand of terrorism-derangement syndrome. Each time this condition recurs, it presents with more acute and puzzling symptoms. . . .
Moreover, each time Republicans go to their terrorism crazy-place, they go just a little bit farther than they did the last time, so that things that made us feel safe last year make us feel vulnerable today. . . . In short, what was once tough on terror is now soft on terror. And each time the Republicans move their own crazy-place goal posts, the Obama administration moves right along with them. . . .
We're terrified when a terror attack happens, and we're also terrified when it's thwarted. We're terrified when we give terrorists trials, and we're terrified when we warehouse them at Guantanamo without trials. If a terrorist cooperates without being tortured we complain about how much more he would have cooperated if he hadn't been read his rights. No matter how tough we've been on terror, we will never feel safe enough to ask for fewer safeguards. . . .
But here's the paradox: It's not a terrorist's time bomb that's ticking. It's us. Since 9/11, we have become ever more willing to suspend basic protections and more contemptuous of American traditions and institutions. The failed Christmas bombing and its political aftermath have revealed that the terrorists have changed very little in the eight-plus years since the World Trade Center fell. What's changing -- what's slowly ticking its way down to zero -- is our own certainty that we can never be safe enough and our own confidence in the rule of law.
This descent has certainly not reversed itself -- it has not really even slowed -- with the election of a President who repeatedly vowed to reject this mentality. Just consider what Al Gore said in his truly excellent 2006 speech decrying the "Constitutional crisis" under the Bush presidency:
Can it be true that any president really has such powers under our Constitution?
If the answer is yes, then under the theory by which these acts are committed, are there any acts that can on their face be prohibited?
If the president has the inherent authority to eavesdrop on American citizens without a warrant, imprison American citizens on his own declaration, kidnap and torture, then what can't he do?
Here we are, almost four years later with a new party in power, and the President's top intelligence official announces -- without any real controversy -- that the President claims the power to assassinate American citizens with no charges, no trials, no judicial oversight of any kind. The claimed power isn't "inherent" -- it's based on alleged Congressional approval -- but it's safeguard-free and due-process-free just the same. As Gore asked of less severe policies in 2006, if the President can do that, "then what can't he do?" As long as we stay petrified of the Terrorists and wholly submissive whenever the word "war" is uttered, the answer will continue to be: "nothing." We'll have Presidents now and then who are marginally more restrained than others -- as the current President is marginally more restrained than the prior one -- but what Lithwick calls our "willingness to suspend basic protections and become more contemptuous of American traditions and institutions" will continue unabated.
The Looming Tower: Al-Qaeda and the Road to 9/11
In this historical study of terrorism, a New Yorker writer describes the formation of Al Qaeda and explains how the 9/11 attacks could have been prevented.
By Lawrence Wright
Small Wars Journal
A journal dedicated to the study of such subjects as counterinsurgency, foreign internal defense, support and stability operations, peacemaking, and peacekeeping. Founded by ex-Marines.
Should American Al Qaeda Leaders Be Targeted?
Roe v Wade at 37: Trusting (and Listening To) Women
Good news for African women: Mauritania bans FGM 
