[THS] Glenn Greenwald: On the Claimed War Exception to the Constitution

[Peter Webster]

http://www.informationclearinghouse.info/article24602.htm

On the Claimed "War Exception" to the Constitution

By Glenn Greenwald

February 06, 2010 "Salon" Feb. 04, 2010 --- 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 Lynch-mob Mentality

By Glenn Greenwald

February 05, 2010 "Salon' -- 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.