Leon Panetta’s explicitly authoritarian decree January 30, 2012Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice, Democracy, Uncategorized, War on Terror.
Tags: awlaki, bill of rights, cia execution, civil liberties, constitution, due process, first amendment, glenn greenwald, indefinite detention, journalism, leon panetta, Obama, presidential assassination, roger hollander, rule of law, scott pelley, state secrets, terrorism suspects, terrorists, war on terror
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CBS News‘ Scott Pelley appears to be one of the very few American journalists bothered by, or even interested in, the fact that President Obama has asserted and exercised the power to target U.S. citizens for execution-by-CIA without a shred of due process and far from any battlefield. It was Pelley who deftly interrogated the GOP presidential candidates at a November debate about the propriety of due-process-free assassinations, prompting Newt Gingrich, Mitt Romney, and Michele Bachmann to applaud President Obama for assassinating Awlaki (just as Rick Perry, Dick and Liz Cheney, and Bill Kristol had done). Last night, Pelley did the same when he interviewed Defense Secretary and former CIA chief Leon Panetta on 60 Minutes. It’s well worth watching this three-minute clip because, although Panetta doesn’t say much that is new (he simply asserts the standard slogans and unproven assertions that Obama defenders on this topic always assert), watching a top Obama official, under decent questioning, defend the power to target U.S. citizens for assassination viscerally conveys the rigidly authoritarian mindset driving all of this:
Panetta’s answers are suffused with dubious and even factually false claims. It is, for instance, false that the U.S. provides due process to everyone apprehended for Terrorism. To the contrary, the Obama administration has been holding dozens of Terrorism suspects without any charges for years, and President Obama just signed into law a bill codifying the power of indefinite detention for accused Terrorists. But even if it were true that all Terrorism suspects who are detained were entitled to receive due process, that merely underscores how warped it is to assert the power to target them for execution without due process. After all, how can it be that the Government must prove guilt merely to imprison Terrorists but not to execute them?
But this is one of the towering, unanswerable hypocrisies of Democratic Party politics. The very same faction that pretended for years to be so distraught by Bush’s mere eavesdropping on and detention of accused Terrorists without due process is now perfectly content to have their own President kill accused Terrorists without due process, even when those targeted are their fellow citizens: obviously a far more Draconian and permanent abuse than eavesdropping or detention (identically, the very same faction that objected to Bush’s radical whole-world-is-a-Battlefield theory now must embrace exactly that theory to justify how someone riding in a car, or sitting at home, or sleeping in his bed, in a country where no war is declared, is “on a battlefield” at the time the CIA ends his life).
It is equally false, and independently both misleading and perverse, for Panetta to assert that a citizen in Awlaki’s position could come to the U.S. to assert his due process rights. For one thing, Awlaki was never charged or indicted for anything in the U.S. — he was simply executed without any charges (the Obama administration, after trying to kill him, reportedly “considered” charging him with crimes at one point but never did) – and thus, there was nothing to which he could “turn himself” in even if he wanted to. Even worse, President Obama’s hit list of those he approves for assassination is completely secret; we only learned that Awlaki was being targeted because someone happened to leak that fact to Dana Priest. The way the process normally works, as Reuters described it, is that targeted Americans are selected “by a secretive panel of senior government officials, which then informs the president of its decisions”; moreover, “there is no public record of the operations or decisions of the panel” nor “any law establishing its existence or setting out the rules by which it is supposed to operate.” So, absent a fortuitous leak (acts for which the Obama administration is vindictively doling out the most severe punishment), it would be impossible for American citizens to know that they’ve been selected for execution by President Obama (and thus obviously impossible to to assert one’s due process rights to stop it).
Worse still, if a judicial proceeding is commenced by a targeted American seeking to put a halt to the assassination attempt in the absence of a trial — as Awlaki’s father did, with the help of the ACLU and CCR, on behalf of his son — then the Obama DOJ will insist that the reasons for the assassination are “state secrets” and cannot be judicially examined, and independently, that such matters are for the President alone to decide and courts thus have no role to play in interfering with such decisions (see POINT II). American courts, largely deferential to claims of presidential secrecy and authority in the post-9/11 era, almost reflexively accept such claims. In other words, if a targeted American tries to assert these due process rights, the Obama administration will go into court and take exactly the opposite position of the one Panetta is claiming here: namely, that the person has no rights to have a court interfere in the President’s assassination order.
So for so many reasons, Panetta’s claim is utterly false: American citizens secretely targeted by President Obama for execution have no means of obtaining due process even in the unlikely case that they learn they have been so targeted. And this is all independent of Panetta’s warped notion that an American has to be on U.S. soil to claim constitutional protections, a wholesale rejection of well-settled Constitutional law that Americans have the right to travel abroad and, when they do, they retain their Constitutional rights against the U.S. government even when on foreign soil. As the Supreme Court put it in 1956, specifically discussing the requirement that a citizen be given a trial before punishment can be doled out (emphasis added):
At the beginning, we reject the idea that, when the United States acts against citizens abroad, it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. This is not a novel concept. To the contrary, it is as old as government.
But the final point is the most important and revealing of all: Panetta’s whole case rests on simply asserting, without proving, that Awlaki was a Terrorist trying to “kill Americans.” That, of course, is precisely what is in dispute: actual Yemen experts have long questioned whether Awlaki had any operational role at all in Al Qaeda (as opposed to a role as its advocate, which is clearly protected free speech). No evidence has been publicly presented that Awlaki had any such role. We simply have the untested, unverified accusations of government officials, such as Leon Panetta, that he is guilty: in other words, we have nothing but decrees of guilt. The U.S. Constitution, first and foremost, was designed to prohibit the doling out of punishments based on government accusations untested and unproven in a court of law; for those who doubt that, just read the relevant provisions (“No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court“; “No person shall be deprived of life, liberty, or property, without due process of law”).
But as I wrote the other day, “the U.S. really is a society that simply no longer believes in due process: once the defining feature of American freedom that is now scorned as some sort of fringe, radical, academic doctrine.” Instead:
Supporters of both political parties endorse, or at least tolerate, all manner of government punishment without so much as the pretense of a trial, based solely on government accusation: imprisonment for life, renditions to other countries, even assassinations of their fellow citizens. Simply uttering the word Terrorist, without proving it, is sufficient.
Here we have the U.S. Defense Secretary, life-long Democrat Leon Panetta, telling you as clearly as he can that this is exactly the operating premise of the administration in which he serves: once the President accuses you of being a Terrorist, a decision made in secert and with no checks or due process, we can do anything we want to you, including executing you wherever we find you. It’s hard to know what’s more extraordinary: that he feels so comfortable saying this right out in the open, or that so few people seem to mind.
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ABC News‘ Jake Tapper pressed White House spokesman Jay Carney back in October about the evidence the administration possesses showing Awlaki’s guilt, and the same authoritarian decree issued: we have said he’s a Terrorist and that is all that is necessary.
Sullivan’s defense of presidential assassinations October 3, 2010Posted by rogerhollander in 9/11, Africa, Barack Obama, Civil Liberties, Criminal Justice, Democracy, Human Rights, Kenya, War on Terror.
Tags: 9/11, al-Qaeda, andrew sullivan, anti-terrorism, assassination, awlaki, civil liberties, constitution, Criminal Justice, due process, executive power, glenn greenwald, human rights, kenya, nairobi bombing, Obama, presidency, roger hollander, rule of law, state secrets, terrorism, treason, war on terror
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Saturday, Oct 2, 2010 09:03 ET
During the Bush-era torture debates, I was never able to get past my initial incredulity that we were even having a “debate” over whether the President has the authority to torture people. Andrew Sullivan has responded to some of the questions I posed about his defense of Obama’s assassination program, and I realize now that throughout this whole assassination debate, specific legal and factual issues aside, my overarching reaction is quite similar: I actually can’t believe that there is even a “debate” over whether an American President — without a shred of due process or oversight — has the power to compile hit lists of American citizens whom he orders the CIA to kill far away from any battlefield. The notion that the President has such an unconstrained, unchecked power is such a blatant distortion of everything our political system is supposed to be — such a pure embodiment of the very definition of tyrannical power — that, no matter how many times I see it, it’s still hard for me to believe there are people willing to expressly defend it.
Moreover, it’s almost impossible to ignore how similar are the rhetoric and rationale between (a) Bush supporters who justified presidential torture and (b) Obama supporters who now justify presidential due-process-free assassinations. Please read Daniel Larison’s argument about that, responding to Sullivan’s post. He’s exactly right.
The central rhetorical premise of Bush defenders was that if they just scream “Terrorist!!’ and “we’re at war!!!!” enough times, and loudly enough, then it would make basic precepts of due process, Constitutional safeguards and the rule of law disappear. If they demonized their targets enough (this is a really bad Terrorist who wants to kill Americans, with nukes if he can!!) — or manipulatively invoked 9/11 enough times (note Andrew’s prominent display of a smoldering WTC photo strategically placed at the top of his argument) — then it would mean that anything goes, that no compliance with law is or should be required to do anything to them (a claim that always led to the unanswerable question: if it’s really so obvious that this is a really bad Terrorist, then why not prove it in court?).
And if you just toss enough insult-strawmen at those who insist upon basic rights even when “we’re at war!!,” then you can marginalize them to the point of invisibility (I wasn’t around in 2003 and thus never got to be accused by Andrew of being a Far-Leftist-pacifist-unwilling-to-fight-the-menace-of-Islamic-Evil, so I guess it’s nice that I’m making up for that now. I always thought a “pacifist” was one who opposes the use of force under all circumstances, even self-defense [a view to which I do not subscribe]; I never knew that one becomes a “pacifist” by believing that the President lacks the power to order his own citizens assassinated far from any battlefield without due process). Just read Andrew’s post to see how reliant he is on these same tactics to justify Obama’s program: quite ironic, given how often he has had these same tactics used against him during his steadfast, eloquent opposition to torture.
In any event, I was going to address a few of Andrew’s specific claims, because some of them are factually inaccurate (I don’t believe that’s intentional, but merely the by-product of the fact that Andrew doesn’t write about the legal issues raised here very often). And I still will do that below, but before I do: as I was writing this, I received an email from a Kenyan lawyer, David Majanja, that so perfectly illustrates how far America has fallen on these issues of basic liberty as compared to much of the rest of the world, and what authoritarian extremists many Americans have become on these questions, that I want to feature it first.
As Majanja noted in his email to me, Kenya faces a massive threat from terrorism. Radicals bombed the U.S. embassy in Nairobi in 1998 and attacked an Israeli-owned tourist resort and Israeli airliner in Mombasa in 2002, and that country has repeatedly been under Terrorist threats for the last decade. Nonetheless, consider this court decision that was just issued in Nairobi on Thursday. A Kenyan Muslim, Mohamed Sulemein, was detained in August — without any charges or due process — by Kenyan anti-terrorism agents (the ATPU), accused of having participated in the horrific June World Cup bombings in Kampala, Uganda, which killed 74 innocent people. He had his passport seized and was told he would be sent to Uganda without any opportunity to contest the accusations against him. His wife filed a habeas corpus petition in a Kenyan court, demanding that “he be treated in accordance with the laws and Constitution of Kenya,” which, among other things, guarantees the right to be charged with a crime within 24 hours of arrest and not to be shipped outside the country without a hearing.
The Kenyan Court agreed, and ruled that the due-process-free extradition of this accused Terrorist to Uganda was illegal and unconstitutional. Just read what the court said to see what’s so profoundly absent from American political thought; this, to me, is the crux of all of these debates, including the one over presidential assassinations:
The person whose rights were denied there is accused of Terrorist acts every bit as reprehensible and dangerous as the accusations aimed at Anwar Awlaki. His rights were denied to a far less extreme degree than what is being done to Awlaki (rendition to Uganda for trial v. being targeted for due-process-free assassination). Kenya faces a Terrorism threat at least equal to what the U.S. faces, and several times has suffered atrocious attacks on its soil. But they are nonetheless able to recognize that citizens “are not exempted from the ordinary protections of law” by virtue of being a Terrorism suspect, and that “the preservation of liberties [even for Terrorist suspects] is the only way to reinforce this country’s commitment to the rule of law and human rights.” If only that recognition were equally widespread in the U.S., which still holds itself out as “the leader of the free world.”
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As for Andrew’s specific claims: I realize that it’s not possible for him to address every point I made and that he made a good faith effort to answer the questions I asked, but I was still disappointed to see him ignore these questions, because these are the same ones I could never get Bush supporters to answer either: (1) would you also be comfortable with having a GOP President — such as Sarah Palin — vested with the unchecked power to order American citizens killed far from any battlefield, with no due process and no obligation to prove the accusations?; (2) Andrew says that the President does not have the right to kill American citizens on U.S. soil, but what rationale can justify that limitation once you endorse the view that the President can order citizens killed anywhere they are found via the mere accusation of Terrorism?; (3) shouldn’t the long and disturbing record of serious error and/or abuse on the part of both the Bush and Obama administrations — whereby numerous individuals, a majority, have been falsely accused of Terrorism — lead a rational person to refuse to vest faith in the President’s ability to decide who is a Terrorist without due process or oversight?; and (4) how could Bush’s oversight-free detention or eavesdropping of citizens be so dangerous, whereas Obama’s oversight-free killing of them isn’t?
Then there are several factually inaccurate assertions. Andrew claims that Obama has “expanded judicial review of this kind of military action,” which is the only reason Awlaki’s case is in court. The claim that these assertions of power are being reviewed by courts due to Obama’s beneficence is absolutely false; they’re in court because Obama — like Bush — has been sued for acting illegally and unconstitutionally, and Obama — like Bush — has asserted that no courts can review his conduct due to secrecy and standing (see this article from the Obama-friendly TPM site — headlined: “Expert consensus: Obama mimics Bush on state secrets” — to see how identical the conduct is). Obama’s argument is the exact opposite of what Andrew claims: it’s that courts have no right and no power to review his decisions about which citizens are assassinated.
Then Andrew cites Ex parte Quirin  to claim that “it is utterly uncontroversial that the military can kill a US citizen abroad if he is waging a treasonous war against the United States,” but even that case — long considered quite radical and a favorite of the Yoo/Addington camp — came only after the defendants were charged in a military commission of being saboteurs, and the Supreme Court merely held that military commissions constitute sufficient due process for the offenses with which they were charged. Here’s what the Court actually said (emphasis added):
The President, as President and Commander in Chief of the Army and Navy, by Order of July 2, 1942, appointed a Military Commission and directed it to try petitioners for offenses against the law of war and the Articles of War . . . On July 3, 1942, the Judge Advocate General’s Department of the Army prepared and lodged with the Commission the following charges against petitioners, supported by specifications: . . . The Commission met on July 8, 1942, and proceeded with the trial, which continued in progress while the causes were pending in this Court . . .As announced in our per curiam opinion we have resolved those questions by our conclusion that the Commission has jurisdiction to try the charge preferred against petitioners. . . .
We are concerned only with the question whether it is within the constitutional power of the national government to place petitioners upon trial before a military commission for the offenses with which they are charged. . . . Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. . . . We hold only that those particular acts constitute an offense against the law of war which the Constitution authorizes to be tried by military commission.
Aside from the fact that these defendants were caught in the act of engaging in hostilities — not sleeping or driving in a car with their parents, as Awlaki might be doing when he’s killed — this case doesn’t remotely justify assassinating citizens without any due process, and I really hope Andrew would retract the suggestion that it does. The whole point of Ex parte Quirin — as anyone can see — is that these defendants were given due process: a military tribunal which the court found constitutionally adequate under the circumstances. That’s the opposite of Obama’s due-process-free assassinations.
Then Andrew says this:
I agree that the Obama administration’s decision to shut down inspection of the evidence behind the decision to regard Awlaki as someone waging an active war against the US under “state secrets” is a step way too far. I think the president has a duty to explain in court why he believes this person must be treated as an active enemy at war with the US, and therefore treated as all such enemies in wartime as someone to be killed.
But this is the crux of the whole dispute. Once one concedes this, what disagreement is left with critics of Obama’s conduct? What Andrew says Obama has a “duty” to do — “explain in court why he believes this person must be treated as an active enemy at war with the US” — is precisely that which Obama is steadfastly refusing to do. Rather than indict or charge Awlaki, or even respond to his lawsuit with evidence of his guilt, he’s simply asserting the right to kill him without any oversight. Indeed, before Awlaki’s father filed suit, that’s exactly what Obama has been trying to do: kill this American citizen without any due process whatsoever (along those lines, Andrew’s announcement that he’s “sick of the left treating Obama as if he has done nothing to change the dictatorial, illegal and indecent policies of his predecessor” is very odd, given that Andrew himself — in a post from several weeks ago which he entitled “The Untamed Prince” — called for the prosecution of Barack Obama as a war criminal, and wrote: “Obama as executive quickly co-opted the kind of blanket secrecy and protection of the national security apparatus from the rule of law that plagued us in the Bush-Cheney administration“; those are Andrew’s words, not the words of “the left”).
But the most telling part of his response is where Andrew replies to my question about how he knows that Awlaki is actually an “Al Qaeda Terrorist” who deserves to die:
There is much public information about Awlaki, and I urge readers to go to Wiki and examine the public record and sources in detail to make their own minds up. . . . But seriously, is Glenn honestly saying that a man who has committed treason, has had multiple direct contacts with al Qaeda, including the 9/11 mass-murderers, has been directly connected with inciting American citizens to kill others in terror attacks is not, self-evidently, an al Qaeda terrorist who poses a direct and imminent threat to innocent human beings, motivated by a poisonous religious ideology that was responsible for the murder of 3,000 people on 9/11?
This is what we’re reduced to in America: trial by Wikipedia. Apparently, as long as there are enough links on your Wikipedia page to other accused Terrorists, then the President can wave his imperial wand and impose the death penalty on you. Aside from the fact that most of what is on “Wiki” comes from unproven government accusations, and aside from the fact that it’s almost all rank guilt by association (Andrew: “Witnesses report he was a spiritual adviser to and met with two 9/11 mass-murderers, Nawaf Al-Hazmi and Khalid Almihdhar“), this claim raises the painfully obvious question: if the evidence is so clear and overwhelming that Awlaki is a Terrorist who deserves the death penalty, then why are Obama — and his supporters — so afraid to indict him and prove these claims in court? That was always the quandary posed by Bush’s assertion that he could eavesdrop or detain with no judicial oversight, but was doing so only on obvious Terrorists: if it’s so clear that they’re Terrorists, why won’t you go to court and convince a court that they’re Terrorists?
As for Andrew’s claim that Awlaki “has committed treason,” I’ll say this: he may or may not have. But we have this document called “the Constitution,” and it makes as clear as can be that no President has the power to simply decree that someone is guilty of that crime. Right in Article III, Section 3, it explicitly makes clear what must be done if one is to be punished as a traitor:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
What possible justification exists for ignoring that Constitutional provision? Even if we are at war, there is, manifestly, no “war exception” to the Constitution. “War” is not, and never has been, a cognizable excuse for disregarding Constitutional guarantees — at least not in a republic that still adheres to the rule of law.
In general, the U.S. Constitution prohibits the deprivation of “life or liberty . . . without due process of law.” But because of how serious a crime Treason is, the Constitution imposes heightened requirements on proving it in court. It’s not something that is presidentially declared by anonymous press leaks or reading a Wikipedia page. If the rule of law means anything, it’s that explicit Constitutional protections like this one don’t get to be swatted away by yelling “War!!!” or “Terrorist!” or by putting emotionally powerful pictures of 9/11 on your blog. As the Kenyan judge put it: “the preservation of liberties [even for Terrorist suspects] is the only way to reinforce this country’s commitment to the rule of law.” If you’re willing to vest the President with the power to order your fellow citizens murdered as a Traitor without a shred of due process, then, by definition, you simply do not believe in these core principles.
UPDATE: In response to numerous reader emails, Andrew posts a couple more brief thoughts on all of this here.
Also worth reading on this: (1) Harper‘s Scott Horton, who says he originally thought the objections of civil libertarians in the Awlaki case were overblown, but has now concluded — in light of the Obama DOJ’s brief — that the Obama program is the embodiment of “tyranny”: “When the executive claims the power to take the life of a citizen without recourse to law and legal process, and seeks to sustain that under vague claims of commander-in-chief authority, that claim is in its essence tyrannical”; and (2) former CIA officer and current novelist Barry Eisler, who examines other dubious claims made by Sullivan in defense of Obama’s program.