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OBAMA CAN KILL AMERICANS ON US SOIL WITHOUT DUE PROCESS?
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[Editor’s Note: The following is by TDV contributor, Wendy McElroy]
On March 5th, a headline in the left-leaning Mother Jones declared, “Obama Administration Says President Can Use Lethal Force Against Americans on US Soil.” A letter from Attorney General Eric Holder to Republican Senator Rand Paul was the cause. (A screenshot of the full letter is here.) Rand had written to John Brennan, the current nominee for Director of the CIA, to ask whether the president can kill American citizens through the drone strike program on US soil without due process. Brennan requested Holder to address legal aspects of the question, which Obama and his administration have hitherto refused to answer. Holder's March 4 letter may have broken the silence because Rand threatened to filibuster Brennan's nomination if there was no response. (Indeed, Rand was filibustering as I wrote this article.)
Conservatives and libertarians are enraged by Holder's letter; liberals offer a mixed reaction. An admin at the left-leaning Daily Kos site, for example, blasts Mother Jones for inaccuracy. Others claim the Presidential power is nothing new and Holder's comments are unexceptional. Teasing out the truth means deconstructing the letter.
DECONSTRUCTING HOLDER
This letter was written and vetted with meticulous care. Holder did not misstate his position. The letter's vague and non-responsive nature is deliberate and its few specifics are revealing.
Holder opens with an assurance: “[T]he US government has not carried out drone strikes in the United States and has no intention of doing so. As a policy matter moreover, we reject the use of military force where well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat.” [All words in bold are emphasis added]
Obama did not even disclose the existence of a drone program on American soil until his hand was forced; the memos upon which the program's legal authority is based remain secret. This non-transparency makes it impossible to assess Obama's intentions, and reduces Holder's position to “trust us.” The words “as a policy matter” are significant because the use of military force instead of law enforcement is dismissed strictly as policy, not on grounds of law or the Constitution. Policies change constantly and often without notice. Moreover, given the extreme militarization of US law enforcement, complete with police drones, it is strange to reassure Americans that they would be killed by law enforcement and not the military. The distinction does obviate some legal questions, however. For example, it bypasses any lingering shred of the Posse Comitatus Act, which limits the power of a President to use the federal military to enforce law.
Holder continues. The administration has “a long history of using the criminal justice system to incapacitate individuals located in our country who pose a threat to the United States and its interests abroad. Hundreds of individuals have been arrested and convicted of terrorism-related offenses in our federal courts.” Again, this is a policy statement. Moreover, various federal agencies, including the Department of Homeland Security, have identified broad categories of law-abiding Americans as potential terrorists. Gun advocates, military veterans and strict Constitutionalists place consistently high on that list. By broadening the focus to include America's “interests abroad,” Holder also signals that the Americans targeted need not be violent but merely a threat to US interests. It would be difficult to be more vague.
Holder now approaches the meat of the letter. “The question you [Rand Paul] have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no president will ever have to confront.” The statement is entirely incorrect. On February 20th, Paul asked whether Obama had “the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil and without trial.” This is a specific, real world question; it asks an Attorney General to comment on a point of federal law, which he would be or has been instrumental in forging. Holder's dismissal of Rand's question as theoretical, however, allows him to rephrase it in a form he wishes to address.
Holder's non-answer? “It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States.” The rephrasing allows Holder to avoid the key issue of due process. Unfortunately, few people deny the authority of a President to kill violent Americans who threaten national security. But they balk at his signing secret orders to kill Americans without arrest or a trial. Due process is being reduced to Obama's signature on a piece of paper that will never be seen.
Nevertheless, Holder is at least and at last rendering a legal opinion. Yes, under “extraordinary circumstances,” it is legal “under the Constitution and applicable laws...for the President to authorize the military to use lethal force” on American soil.
It is impossible to know what constitutes “extraordinary circumstances.” America has been in a state of war and militarization for almost 12 years since 9/11. It could refer to circumstances law enforcement cannot handle and, so, the military becomes necessary. In reality, “extraordinary” will mean whatever the administration wishes. The national emergency could be nothing more than a grassroots refusal of Americans to voluntarily surrender guns. At that point, Obama could bypass both Congress and the Constitution by invoking the War Powers Act and declare martial law.
It is also not possible to decipher which “applicable laws” are referenced. Perhaps Holder is appealing to “War on Terror” laws such as the Authorization for Use of Military Force. The latter is a joint resolution passed by Congress in 2001 to authorize the President (then Bush) to use "necessary and appropriate force" against anyone who "planned, authorized, committed or aided" those responsible for 9/11. Indeed, the words used by Holder -- “necessary and appropriate” – echo the wording of the AUMF. It is equally unclear which part of the Constitution is referenced. Certainly, it is not the Bill of Rights. This means that neither Congress nor the public will know the circumstances and legal authority under which President believes it is appropriate to kill Americans on US soil.
[Editor's Note: .Which is why we highly recommend you have a plan to keep you off US soil permanently if need be.]
The two specific examples of “extraordinary circumstances” only confuse the issue further. He states, “the president could conceivably have no choice but to authorize the military to use such force if necessary to protect the homeland in the circumstances like a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001.”
The examples are the bombing or Pearl Harbor and 9/11. They are bizarre. For one thing, neither incident was perpetrated by Americans. Moreover, Holder endorses the Presidential execution of Americans after a crisis has occurred and not to prevent one. This differs sharply from the administration's justification for torture; namely, that information extracted in a “timely manner” may prevent the loss of American lives.
The “timely manner” aspect becomes all the more bizarre in light of Holder's concluding sentence: “Were such an emergency to arise, I would examine the particular facts and circumstances before advising the president of the scope of his authority.” Pearl Harbor occurred literally out of the blue in the early morning hours; 9/11 was equally unexpected and swift. Does anyone believe Holder thinks there would be time to “examine the particular facts and circumstances” of a surprise attack that hits like a lightning bolt? Does anyone believe Holder does not know what the administration's response would be down to the color of Obama's underwear?
CONCLUSION
The Obama administration is profoundly secretive and dishonest. Holder's letter is an exercise in obfuscation which, nevertheless, does assert the President's authority to kill Americans on US soil under undefined circumstances.
Certain other circumstances have been defined, however. Obama has already asserted the unprecedented power to kill Americans without due process when they are on foreign soil. Anwar al-Aulaqi was an American by birth and upbringing. He was executed by a drone attack in Yemen on September 30th, 2011. The grounds: suspicion of joining al Qaeda. No evidence of guilt has been presented because Obama has not released it.
It is also clear that the Obama administration is unwilling to explain the details or scope of the President's authority to kill Americans on US soil. At some point, when people consistently and persistently refuse to answer a question with “no,” a reasonable person realizes the answer is “yes.”
On March 5th, civil libertarian Glenn Greenwald summed up the situation. “There is a theoretical framework being built.” It “posits that the US Government has unlimited power, when it comes to any kind of threats it perceives, to take whatever action against them that it wants without any constraints or limitations of any kind.
Wendy McElroy is a frequent Dollar Vigilante contributor and renowned individualist anarchist and individualist feminist. She was a co-founder along with Carl Watner and George H. Smith of The Voluntaryist in 1982, and is the author/editor of twelve books, the latest of which is "The Art of Being Free". Follow her work at http://www.wendymcelroy.com.
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And so a dictatorship is forged before our eyes. Exciting, huh?
This week in the comments section a troll accused your notoriously brown-skinned editor of being a "useful idiot" of the racist, right wing corporatists because we don't let Obama's race prevent us from heaping much deserved criticism and scorn upon his wooly head. We get these kinds of comments every now and then. And they usually provide a good laugh around the home office.
But during times like this, when Obama's race is clearly serving as a smiley, politically correct cover for casually murderous dictatorship...then these messages disturb and sadden us.
While we are sad to see these events unfold thus...we would be shocked if they hadn't! Did we really expect the US to stick to economic collapse without a healthy dive into totalitarianism? Of course not! They are going to assume more and more control of the lives of their human chattel. They consider all your money to be theirs (they just let you keep some of it) and now they are making it crystal clear that you get to keep your lives strictly at their discretion.
At the very least, please get your assets out of their immediate reach.
Regards,
Gary Gibson
Editor, The Dollar Vigilante
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Comments (6)
What an excellently argued rebuttal, Gary! Love it. It reflected my every last thought, emotion and feeling with regards to the subject.
I have bit to add:
I deny the government my consent to kill anyone that isn't trying to kill me, and that could not be duly proven trying to do so. I hope that this makes it clear, that if I happen to be within a "larger radius", then my statement explicitly denies the government my consent to kill anyone within a smaller radius who is not themselves trying to kill me.
Now, I expect the government to go and get those trying to kill me and bring them to court, and compile all necessary evidence as required by due process, EVEN if it is going to take many many many lives of the government people - this is why they are being hired, and if the risk is just too much, they are f-ing welcome to jump on a privately made bacon anytime. I expect that if the government fails to aquire all the required evidence, then it will be understood as a failure to deliver.
I expect that the failure to stop the crimilals, is to be considered a failure, and not some "oops, who knew". They should have known, they were paid to know. I view it every time as a breach of contract. There is only one way that I accept that failure and not consider it a breach, - and that is when all hired bodyguards died drying.
One more point. I do not accept any possibility that anyone I hire can have a secret from me. Sorry, but no. If you want to have secret from me, why don't you go to a country that will hire you to keep secrets from it.
"Jim Hodge - Allied Home Mortgage have been attacked by lawyers and the liberal press. A self made man of humble means is working hard to restore the jobs lost by these baseless attacks"
A policy of sometimes killing U.S. citizens on U.S. soil is not new. It appears to go back to before WWII, and was originally targeted on individuals who were thought to pose a national security threat but for whom there either was insufficient evidence for trial, or that a trial would reveal state secrets. They were called "wet jobs", and were often accompanied by other kinds of crimes, such as break-ins without a warrant ("black bag jobs").
Government has always claimed the right of necessity to use deadly force if there was no other way to stop a deadly felonious or warlike attack. We all have that right, which may be a duty in some circumstances. An obvious but not mentioned example would have been a shootdown of a hijacked airliner headed toward a strategic target, such as Flight 93 on 9/11.
We can imagine a scenario in which terrorists have smuggled in a suitcase nuke with a yield of 100 kt, we knew where it was within a 5-block error, and knew it would be detonated soon or if we searched that area. In that situation the least undesirable alternative might be to target the 5-block area with a smaller 5 kt nuclear warhead that would prevent the larger one from working, even though that would kill tens of thousands of people. Better than losing hundreds of thousands or millions.
So one can imagine scenarios in which it would be appropriate, mostly ones that no administration wants to talk about.
The problem is that we have entered a twilight zone in which there is no bright line separating truly necessary actions from merely convenient ones. UAV strikes confront us with this dilemma as never before, because of their necessarily imprecise targeting that makes mistakes and collateral damage likely. Modern terrorism with the tools available to it enable it to turn the entire planet into a war zone.
There is also a problem with the inability of the administration to understand the legal theory appropriate to this kind of situation. There is no constitutional crime of "terrorism". That is just a propaganda term. The constitutional crime is piracy, which is correctly defined as a warlike act by a non-state actor against a country other than his own. (If it were his own that would be treason.) There is a long-established law of piracy that is applicable, with its own due process, albeit a less protective kind than is appropriate for ordinary criminal prosecutions, but that is mainly for foreign piracy. We don't want to apply those standards to piracy on U.S. soil if we can avoid it, because those standards are somewhat loose about distinguishing pirates from bystanders.
If you think this situation is bad, wait until it becomes possible (probably fairly soon) for a bright but troubled teenager to create in his room a deadly plague that if released will destroy the human race. When the day comes that anyone can build a doomsday machine with commonly available materials, freedom will end.
I forgot to add:
I can't believe anyone would worry about some sullen teenager developing a species-killing pox in his basement while it is govenments full of power-mad politicians and assorted thugs who are throwing incalculable amounts of stolen wealth at projects like nuclear weapons and smallpox cultivation.
To date, no sullen teenager has ever wiped out millions with weapons of mass destruction. Last I checked that was the exclusive purview of politicians.
Freedom's death isn't waiting for technology to make a sullen teenager a species-ending threat. Freedom is plenty dead already.
The scenarios of extreme terrorism that require an "extreme" response could only exist in a world run by the criminal gangs known as governments. Terrorist acts are committed to send messages to governments by disrupting the economic productivity of the target government's tax base. The target governmnet becomes a target because it has committed some act of violence and theft against the group the terrorist represents.
I repeat: terrorism is a response by people without tanks and jets to the violence and theft of government.
On that note, war is the mutual response of people WITH tanks and jets --i.e. governments -- to the violence and theft of other people with tanks and jets (governmentst).
War is the same thing as terrorism. We just call it different things when one gang of thugs doesn't have tanks and planes. In either case, private citizens and private property are destroyed in a game of parliaments, pentagons and thrones.
Our point is to get rid of the state and to allow true freedom and free markets to reign. The state IS violence and can only beget violence in the form of warfare or welfare (which amounts to theft when it is not from private charity).
...
As for the examples provided, what if there is a credible threat that there might be a nuclear bomb in as many as a dozen US cities? Imagine that. The FBI/CIA/DHS have it on good authority that there are maybe six nuclear bombs that could be in any of a dozen major cities (like DC, New York, Boston, Miami, Seattle, LA, Dallas, Chicago, Philadelphia, Orlando, Houston, Las Vegas). They are not sure which cities have the bombs or even how many bombs there are in total. Could be one city with a bomb or all twelve may have bombs. They figure it's most likely six bombs, but don't know which ones. If they do nothing at all 100 million people could die (there are 8 milllion people in NYC proper alone, and about 40 million in the metropolitan area!). If they bomb every single city, they will definitely kill 40 million. What do you do?
Violence begets violence begets violence. The state begets war begets terrorism begets us having a conversation about when it is okay for the state to kill millions in order to save other millions.
And as for those supposedly hijacked planes that provided a convenient catalyst for total government police statism...notice that federal law made it quite easy for a plane of disarmed sheep to be taken over by men with sharp objects. I'd say goverment caused that problem by abrogating basic rights of self-protection and then when it inevitably led to mass destruction, government is ready with the answer that it has to eliminate even more rights and invade and kill even more people in other countries.
Oh yes! Good old fear mongering to justify expanding government powers…
This reminds me of the post-Soviet era scare of hundreds of suitcase nuclear boms were (supposedly) missing from army stock. And where were they? Imagine some bad guy got one and set it off during a big football match on live television? Daddy help us!
So far nothing happened, and I doubt that is to the credit of some big government agency somewhere. Would a TSA zombie recognise one, if it shows up in the scanner?
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