We Hold These Truths to be Self Evident: the Soveriegn May Kill Subjects In Secret, Subject to No Review, For Any Reason It Deems Fit

Read the whole thing. No comment by me is needed.

http://www.salon.com/2012/03/06/attorney_general_holder_defends_execution_without_charges/

In a speech at Northwestern University yesterday, Attorney General Eric Holder provided the most detailed explanation yet for why the Obama administration believes it has the authority to secretly target U.S. citizens for execution by the CIA without even charging them with a crime, notifying them of the accusations, or affording them an opportunity to respond, instead condemning them to death without a shred of transparency or judicial oversight. The administration continues to conceal the legal memorandum it obtained to justify these killings, and, as The New York Times‘ Charlie Savage noted, Holder’s “speech contained no footnotes or specific legal citations, and it fell far short of the level of detail contained in the Office of Legal Counsel memo.” But the crux of Holder’s argument as set forth in yesterday’s speech is this:

Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of Al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.

When Obama officials (like Bush officials before them) refer to someone “who is a senior operational leader of Al Qaeda or associated forces,” what they mean is this: someone the President has accused and then decreed in secret to be a Terrorist without ever proving it with evidence. The “process” used by the Obama administration to target Americans for execution-by-CIA is, as reported last October by Reuters, as follows:

American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions . . . There is no public record of the operations or decisions of the panel, which is a subset of the White House’s National Security Council . . . Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.

As Leon Panetta recently confirmed, the President makes the ultimate decision as to whether the American will be killed: “[The] President of the United States obviously reviews these cases, reviews the legal justification, and in the end says, go or no go.”

So that is the “process” which Eric Holder yesterday argued constitutes “due process” as required by the Fifth Amendment before the government can deprive of someone of their life: the President and his underlings are your accuser, your judge, your jury and your executioner all wrapped up in one, acting in total secrecy and without your even knowing that he’s accused you and sentenced you to death, and you have no opportunity even to know about, let alone confront and address, his accusations; is that not enough due process for you? At Esquire, Charles Pierce, writing about Holder’s speech, described this best: “a monumental pile of crap that should embarrass every Democrat who ever said an unkind word about John Yoo.”

 

28 Comments

  1. Comment by Montecristo:

    Two Observations:
    1) Righteous! It is good to see a self-declared conservative acknowledge a liberal like Greenwald when he says something true and substantial. It is good when the liberals do likewise.

    2) This cannot end well.

    Two Questions:
    1) How many or how long does a long train of abuses and usurpations have to get before it becomes recognized that these pursue invariably the same end and evince a design to reduce us under absolute despotism?

    2) We have the presumption of innocence because in almost all cases of prosecution there are those who know the facts and the truth and when those who know these things see the facts and the truth ridden roughshod over they either consciously or unconsciously withdraw their sanction from the prosecuting entity. A nation cannot survive the opprobrium of a significant portion of its honest men indefinitely. How long does this one have, do you suppose?

    • Comment by John C Wright:

      “It is good to see a self-declared conservative acknowledge a liberal like Greenwald when he says something true and substantial.”

      Thank you, but the compliment is undue, since I had no idea who Greenwald was, or where his political loyalties rest.

      “How many or how long does a long train of abuses and usurpations have to get before it becomes recognized that these pursue invariably the same end and evince a design to reduce us under absolute despotism?”

      I would say that prudence will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

      In simpler language, as long as a peaceful avenue for the redress of our grievances is open, we may not take up arms.

      But if neither the courts of law nor the ballot box are sufficiently possessed of that integrity needed to serve as an avenue of peaceful change, then it is time to disobey, and if disobedience is met with force, time to rebel.

      Personally, I think the mainstream media is the enemy, and that none of these things would be possible without their tireless work of not reporting the news.

      “A nation cannot survive the opprobrium of a significant portion of its honest men indefinitely. How long does this one have, do you suppose?”

      Until what? Economic collapse? Rioting in the streets? I don’t understand the question.

      I will say that a nation without God is on the same path as postwar England, which went from a superpower to a nation on par with Spain in one generation. With God all things are possible, even the resurrection of the dead. If you prefer less religious language, substitute the phrase “the virtues, habits, and social capital of the traditional Western civilization, including respect for the rule of law, a work ethic, a sound dollar, civic mindedness, patriotism, and public decency” for the word “God” and the surface meaning will be much the same.

    • Comment by lotdw:

      Greenwald claims to be neither liberal nor conservative, and the columns of his I’ve read so far show that claim to be true.

  2. Comment by Pierce O.:

    the President and his underlings are your accuser, your judge, your jury and your executioner all wrapped up in one, acting in total secrecy and without your even knowing that he’s accused you and sentenced you to death, and you have no opportunity even to know about, let alone confront and address, his accusations; is that not enough due process for you?

    Of all the sciffy dystopias to end up in we get Megacity One. *sigh* couldn’t we get the Imperium of Man? Then we’d at least have cool flashlights.

  3. Comment by Oscillon:

    “Certainly I understand your concern. Your concern is that we cannot trust our government to fight Islamic terrorists without using that same power against domestic political dissent, such as anti-abortion protesters or returning veterans. Your concern is not unreasonable, as the recent memos from the Department of Homeland Security attest.

    The problem admits of no solution. The whole point of asymmetrical warfare is to use the restraints of a democracy against itself. If any removal of the restraint tempts the government to establish a tyranny and oppress, torture, and kill its own loyal citizens, then the restraints cannot be removed, the state is a larger threat than the enemy, and the enemy cannot be fought.

    Is this fear realistic? The Dems feared Bush was the new Hitler, because he wished to fight the war against the terror masters, and the GOP now fears Obama is the new Mussolini, because he wishes not to.

    If half the nation, rightly or wrongly, will be more afraid of the other half than of the enemy whether we fight the war or not, this indicates to me that the West is too divided, lazy, corrupt, partisan, and craven to defend herself.”

    • Comment by John C Wright:

      I am confident you can distinguish the two cases.

      • Comment by Oscillon:

        Not sure exactly which two cases you are referring to. The problem these two quotes came from were discussing the executive branches ability to designate anyone anywhere, citizen or not, in the USA or external, as an enemy combatant. And thereby invoke some sort of exception to any judicial review. Habeas ignored. Based on the “word” of the executive branch. With no end of this “power” defined. Really not sure what the difference you are referring to is. That one president killed the guy and the other said he could drop him in a hole forever or send him to Syria to be “questioned”. Death vs indefinite imprisonment? Not trying to be a smartass but I don’t see any effective difference in the underlying logic or consequences.

        • Comment by John C Wright:

          Death by assassination versus imprisonment for the duration is one of them. The second is that Gitmo detainees were brought before a military tribunal, as is keeping with the standards and practices of warfare, and a record kept of the tribunal’s decision.

          • Comment by Oscillon:

            A couple of the many cases we we’re discussing, so long ago, was Padilla and Hamdi (not gitmo detainees). Who were both American Citizens, one captured on american soil(Ohare Airport) one in Afghanistan. Bush and Gonzales were arguing that habeas didn’t apply. They could lock them up in a military brig (in the USA) for as long as they liked with no oversight from the judiciary. You may feel differently, but to me, indefinite detention in a military brig with no recourse at the whim of the president is equivalent to death.

            “The second is that Gitmo detainees were brought before a military tribunal, as is keeping with the standards and practices of warfare, and a record kept of the tribunal’s decision”
            Really? Your memory is different than mine. Bush started with the position that they were enemy combatants and therefore outside any coverage by the Geneva conventions. He had no intentions of trials. There was no such announcement until they started to get in trouble with the courts. It wasn’t till they started losing that argument in federal court that they tried various kangaroo court versions (not in keeping with any previous american military trial). They’ve been steadily walked back by the courts (including our current right leaning supreme court) to something resembling a normal military trial.
            At least the guy Obama whacked was actually still out on the battlefield actively trying to kill us. I guess you could argue it was in the heat of battle. Looks a whole lot more like an assassination to me though.

        • Comment by R Tyler Sperry:

          “anyone anywhere, citizen or not, in the USA or external, as an enemy combatant.”

          I must be less informed on current events than I thought. I am unaware of any cases of a person killed in the US as an enemy combatant without judicial review. Perhaps you could point to such cases?

          Despite heated claims to the contrary, I have yet to see any evidence that people are being killed solely due to a President’s “whim”. Between the person that pulls the trigger and the President there is a long line of people — including some who will refuse what they consider unlawful orders and others who will be writing CYA reports to protect their careers.

          I do find it odd that we live in a culture where many will demand the presumption of innocence for folks waving AK-47s and shouting “Death to America!” but won’t apply that same presumption to members of our armed forces.

          • Comment by Fabio P.Barbieri:

            I must be less informed on current events than I thought. I am unaware of any cases of a person killed in the US as an enemy combatant without judicial review. Perhaps you could point to such cases?
            I suggest you stop being ridiculous. What you have said here is: because it hasn’t happened yet, it’s not going to happen, and the Government is arming itself with such powers with no intention of using them. I repeat: I suggest you stop being ridiculous.

            • Comment by Oscillon:

              And the right wing is “shocked” that a democrat would pick up where they left off. And now the republicans can hardly raise a whimper because they know they’ve used the same logic for years.

          • Comment by John Hutchins:

            If men were angels they would need no government, if angels governed men no controls would be necessary. We are greatly blessed that there are so many armed servicemen that are, in some sense, angelic in nature, we should not depend on them always being so.

            They may be the most upright individuals in the nation but if they are not led by an upright individual and if they are not given the true facts but instead lies then the best individuals with the best of intentions can commit horrible atrocities. We have seen the experience of the FLDS in Texas, a phone call from a known crazy fed the worst fears about them and they were wrongfully mistreated. We have the experience of Japanese Americans during WW2, the experience of the Native Americans (trail of tears, innumerable more), the experience of the LDS ( extermination order, Buchanan’s Folly for two examples). Propaganda works, especially when it feeds per-existing fears and prejudices. All of the military personal in those situations may have been acting with the best of intentions and thought they were doing what was right based on the information they had been given. We should not be dependent on their being a General Doniphan or Colonel Kane (being the examples I am most familiar with) to step in with correct information when the information that has been given the troops is wrong.

    • Comment by Mary:

      The United States managed to shoot a large number of its citizens without a shadow of due process or any complaints once. Of coures, those citizens had acted like lawful combatants, putting on uniforms and obeying their officers.

      Perhaps we should start apply the full penalty of the law for unlawful combatants on any and all terrorists caught.

  4. Comment by Oscillon:

    “You are more afraid of your own government, which has promised to protect you, and has spent blood and treasure to do so, sacrificing brave young men, than you are of the enemy, which has promised to kill you, and has spent blood and treasure to do so, and sacrificed both zealous young fanatics, women, and retards strapped with bombs to do so. “

    • Comment by CPE Gaebler:

      On the other hand, which has historically killed in larger numbers and with greater efficiency: decentralized fanatical rabble, or a State that has given itself absolute power over the life and death of its citizens?

      Of course, I want to have the best of both worlds – surely we can fight our enemies wherever they may be AND not make the President’s whim the arbiter or life and death.

      • Comment by Mary:

        Rabble!

        That, of course, stems from its existing in many lands and regions where there was no shadow of government, and indeed being its most powerful there. Witch hunts are more common the less central government you have.

  5. Comment by R Tyler Sperry:

    Dear me. Although I would normally be torn between defending Eric Holder and cutting my finger nails by shoving my hand into a meat grinder, in this particular case I find his comments to be spot on:

    “but we must also recognize that there are instances where our government has the clear authority – and, I would argue, the responsibility – to defend the United States through the appropriate and lawful use of lethal force.

    This principle has long been established under both U.S. and international law. In response to the attacks perpetrated – and the continuing threat posed – by al Qaeda, the Taliban, and associated forces, Congress has authorized the President to use all necessary and appropriate force against those groups. Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law. The Constitution empowers the President to protect the nation from any imminent threat of violent attack. And international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.

    Our legal authority is not limited to the battlefields in Afghanistan. Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan. We are at war with a stateless enemy, prone to shifting operations from country to country. Over the last three years alone, al Qaeda and its associates have directed several attacks – fortunately, unsuccessful – against us from countries other than Afghanistan. Our government has both a responsibility and a right to protect this nation and its people from such threats.”

    Holder is hardly the only one to understand the distinction between the rules of the battlefield and the criminal laws applicable within the US. Gingrich had a semi-famous smackdown moment in one of the candidate’s debates when Scott Pelley tried to blur that line in a hypothetical question: YouTube or transcript.

    • Comment by Stephen J.:

      True as Holder’s observations are, I can’t say that I see anything there which empowers the President to declare (unilaterally and without restraint or oversight) an American citizen to be an “enemy belligerent” in such a way that the latter status trumps the former and his Constitutional protections are deemed no longer to apply.

      There is a distinction between the rules of the battlefield and the criminal laws of the U.S.A.; the problem I see comes from the fact that when your hostile belligerents are also American citizens, thus meaning that the U.S.A. (as a law-bound group of citizens rather than a geographical territory) is the battlefield, there is a dreadful temptation on the part of authority to use one set of rules to get around the other on a shifting basis and wind up being effectively restrained by neither of them.

      • Comment by Fabio P.Barbieri:

        There is no rule of the battlefield that commands that you should kill every enemy combatant. To the contrary, even if such a person is found with an enemy uniform and a weapon in hand, it is always preferable to take him prisoner. But what Holder is saying is tantamount to a death mandate.

      • Comment by Mary:

        Taking field against the United States has always been held to be evidence enough. Whether in the American Civil War or the handful in other wars.

    • Comment by Fabio P.Barbieri:

      Perhaps it is worth pointing out that the USA has in fact faced a situation where a very large amount of its own citizens were enemy combatants. And it solved the war of 1860-65 without any need for murder mandates or denying even enemy combatants the basic rights of the international laws of war. And you may not have realized this, but the USA was in rather greater danger when Lee had a hundred thousand men and cannon to match within firing distance of Washington DC, than when we have to worry about a number of individual numbskulls trying to murder a few civilians each.

      • Comment by Oscillon:

        Hey, Fabio, haven’t heard from you in a while. Don’t stop by here all that often but couldn’t resist an old argument.

        And it was a declared war, with a beginning and an end. This thing we’ve started is just going to get passed down to every president until congress gets a backbone and steps in. Probably never happen.

  6. Comment by Gian:

    In the Blackford Oakes novels, William Buckley portrayed exactly the same scenario of CIA assassinating American citizens in 40’s and 50’s–during both WW 2 and Cold War,

    Those assassinated included innocents that were killed to protect the secrecy. Buckley portrays it as a dilemma–note that the CIA higher-ups are not negative characters for Buckley.

    I just read ‘Stained Glass’ in this series. It is 1952 and an idealist West German seeks to reunify Germany. The CIA is ordered to collaborate with KGB to stop him, first by dirty tricks and finally by assassination. The dilemma is that they are being blackmailed by Soviets who threaten war if this West German is allowed to win elections West Germany.

    So it is the question of a general war vs murder of an individual and the US Secretary of State and Dean Acheson is shown to ask CIA Director Allen Dulles to work along with KGB to murder an idealist ad innocent West German.

    But Buckley does not get into hysterics.He does not denounce Acheson, Dulles and CIA operatives. He is clear that there is still a clear difference between CIA and KGB.

  7. Comment by Gian:

    In India, all terrorists are processed though the criminal justice system. However, special courts may be set up and certain disturbed provinces have been declared to be under Special Acts.

    So the Executive needs a certain flexibility to meet the demands of an irregular war.

    American case is harder since American Military also operates outside American borders.

    However, the issue of citizenship is not raised in India. Terrorists, be them Indian or foreigner, are held under same laws.

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