Thursday, February 7, 2013

The president’s say-so is not enough

“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”Benjamin Franklin, 1775

Now assassinating a citizen near you?
If you’re not bothered by the DoJ “white paper” outlining the Obama Administration’s rationale for executing American citizens without trial as part of the war on terror, you ought to be.

This is actually not the first time Constitutional protections have been dismissed by executive order.  The first time came in the early days of the Civil War, when as part of his escalation in the wake of the Union defeat at First Manassas Abraham Lincoln declared the right of habeas corpus “suspended”.  Since Lincoln is the nearest thing we Americans possess to a secular saint, many people are loath to criticize this action, murmuring about the exigencies of the time and protesting that he exercised the resulting power very lightly.  And, in fact, when Congress did finally meet in its emergency session, it gave his action a firmer legal basis by passing the appropriate legislation.

Nevertheless, it was the move of a dictator—a benevolent dictator, to be sure, but still an autocrat.  By failing to gainsay Lincoln’s order, Congress allowed him to set a precedent for future chief executives to learn from and emulate.

Habeas corpus is more than a Latin tag.  Under habeas corpus, the executive power has to prove to the reviewing bench that it has both cause and right to hold a person imprisoned, that the imprisonment is in compliance with the form and customs of law.  The writ demands that the custodian produce the living body of the prisoner because, should the imprisonment be found illicit, the prisoner can then be set free without further delay.  The executive’s say-so is not sufficient ground to deprive a person of liberty.


There is another right that can be said to precede all other rights, including the right to life: the right of due process.  This right is guaranteed not once but twice — in the 5th and 14th Amendments, in the exact same words: “… nor shall any person be deprived of life, liberty or property without due process of law …”.

Without guarantee of due process, there’s no trial by jury and no appeals process; the government need not even publicly charge you with a criminal offense.  The president, governor or local sheriff doesn’t need to prove anything against you — s/he can take your life savings and house, dump you in a jail cell, or simply have you shot on sight without accountability to anyone.

This is precisely the power the White House claims on the grounds of the “global battlefield”.  In sixteen pages, the DoJ tries to lay down a rationale that effectively gives the Commander in Chief the power to dispense with due process.  [In breaking news, the Administration has decided to brief members of Congress on the official memo, of which the “white paper” was a precursor; this is a reversal from previous refusals to discuss the actual working policy.]


What has made these actions all the more radical is the absolute secrecy with which Obama has draped all of this.  Not only is the entire process carried out solely within the Executive branch — with no checks or oversight of any kind — but there is zero transparency and zero accountability.  The president’s underlings compile their proposed lists of who should be executed, and the president — at a charming weekly event dubbed by White House aides as “Terror Tuesday” — then chooses from “baseball cards” and decrees in total secrecy who should die.  The power of accuser, prosecutor, judge, jury, and executioner are all consolidated in this one man, and those powers are exercised in the dark.

Now, you would think a contributing editor of RedState, a professedly conservative website, would throw ten different kinds of nutty over the usurpation of power by the God King (as The Blogger Who Must Not Be Named is pleased to call the Obamination).  Far from it!  Erick Erickson has apparently decided that liberty belongs in a compost heap with liberals and civil libertarians and other disreputable things beginning with “liber”:

The battlefield has shifted over the past two decades. … In the twenty-first century, in the remote caves of Afghanistan and deserts of the Middle East, it is both impractical and unnecessary to strap a speaker to a drone in order to shout down to an American Al Qaeda operative, read him his Miranda rights, then caution him to step back a quarter mile to wait for his arrest while the drone unleashes hell on all his terrorist friends.
Just kill them before they kill us.  At some point, we must trust that the president and his advisers, when they see a gathering of Al Qaeda from the watchful eye of a drone, are going to make the right call and use appropriate restraint and appropriate force to keep us safe.
Frankly, it should be American policy that any American collaborating with Al Qaeda is better off dead than alive.  Richard Nixon and Dick Cheney should be proud.

Yeah, what better touchstones of true American values.

Erickson ought to turn in his conservative card, because it’s obvious he has no clue what it means to be conservative.  So should Charles Krauthammer.  Both have lost all sense of founding American values, and are simply yammering a fearful bleat of “get them before they get us”.

Has an American citizen — let’s call him Anwar al-Awlaqi — taken up arms against his nation, or given aid and comfort to an enemy power?  Fine; let’s hale him before a jury of twelve good citizens and true, charge him with treason, and present the evidence that sustains the charge.  Let Anwar in turn be allowed to cross-examine the witnesses against him, and present such evidence as could exculpate him.  Then let that jury decide whether the evidence shows that Anwar is guilty beyond shadow of reasonable doubt.  If convicted, then let the punishment be determined by the law, not by our fear and desire for revenge.

Because, Mr. Krauthammer (you jackass), when we give the Chief Executive carte blanche to assassinate “enemies of the state” without due process of law, it’s not only the Anwar al-Awlaqis of the world that forfeit their rights … we all lose those rights.

Which is our just deserts.