Due Process and the Assassination Leak


PANDA NDAA Civil Liberties Watch

February 18, 2014

Last week the Obama administration anonymously leaked (under terms of anonymity obligingly offered by the Associated Press) the information that it has decided to assassinate another American citizen without charge or trial.

Four safely unnamed officials reassured the public of all the soul-searching, hand-wringing and gratifyingly intense West-Wing-style backroom drama which the Administration had undergone in the course of its decision to kill this newest, as-yet-unnamed American, setting itself (we are told) some genuinely difficult hoops to jump through, which, once jumped, would of course give it the legal authority to kill an American citizen without the mere formality of actual charges or a trial.

“One U.S. official” (unnamed) “said the Defense Department was divided over whether the man is dangerous enough to merit the potential domestic fallout“ – quite the P.R. brouhaha – “of killing an American without charging him with a crime or trying him.” However, the article continued, “Another of the U.S. officials” (also unnamed) “said the Pentagon did ultimately decide to recommend lethal action.”

So that’s that, then.

DUE PROCESS
The Obama Administration has so  far assassinated four Americans by drone– specifically targeting extremist lecturer Anwar Al-Awlaki for a raft of unevidenced crimes, and killing along with him his fellow anti-American propagandist (and fellow American) Samir Khan, followed two weeks later by Awlaki’s nonpolitical (and American-born) sixteen-year-old son, apparently a nice kid, killed dining with young, similarly civilian, friends: when questioned on the second killing, Obama campaign senior adviser Robert Gibbs answered “He should have had a more responsible father.”

On March 5, 2012, in defense of the Awlaki killings, Attorney General Eric Holder addressed the nation insisting that precisely the kind of exciting deliberative process leaked to us today is all the “due process” ensured U.S. people by our Bill of Rights even in cases of planned execution – the drafters of our Constitution having carelessly failed to mention, or mention in enough places, the specific need for any “judicial” process involving courts and laws, foolishly considered necessary in two centuries of American legal practice where an American was facing execution by his or her government.  Judicial, Legislative, Executive?  That last office, without need for courts or the laws they interpret, could now be judge, jury, and executioner.

WHO WILL PILOT?

Today’s AP story spotlights Justice Department guidelines leaked in 2013, the “prudent limits” boasted in Obama’s recent State of the Union Address, specifying that the Pentagon and not the CIA would perform the killing of future American citizens, not to mention hundreds of potentially dangerous civilians in countries with which we are not at war.   All this in compliance with Council of Foreign Relations recommendations intended “to ensure drone strikes do not go the way of third-country renditions and enhanced interrogation techniques,” given the unpopularity (66% vs. 75% approval in poll the recommendations cite), of CIA assassinations versus those the Pentagon conducts.   Pentagon assassinations, unlike CIA hits, can be defended after the fact in the court of public opinion.

This weekend’s soul-searching, AP tells us, has been chiefly a search for ways to retain these guidelines and have Pentagon soldiers, and not CIA spies, perform the actual assassination using the drones currently tracking the unnamed American. However, dissenting voices such as Sen Diane Feinstein (D-CA) are quoted insisting that the drone-savvy CIA are far more skilled at this sort of killing, while House Intelligence Chair Mike Rogers (R-Mich) laments “missed opportunities” for assassination when only blank check permission for death by air can fully safeguard American lives.

Congress may indeed have tied the President’s hands, the article continues, by its refusal to allocate specific funding to allow a cash-strapped Pentagon to fire the needed missile at this new target, making the pressing question that of whether Obama’s self-imposed guidelines on the killing of uncharged, untried American citizens still entitle him to legally kill a citizen without trial, if, due to their inconvenience, he ignores them maybe just this once.

CONSTITUTIONAL WITHOUT COURTS

The article explains: “If the target is an American citizen, the Justice Department is required to show that killing the person through military action is “legal and constitutional”.” Not to show any judge or jury, of course: “due process,” as Eric Holder has confirmed, no longer entails “judicial process” and the Supreme Court at any rate has shown every recent willingness to invoke technicalities in evading challenges to the constitutionality of post-9/11 legal innovations.

A.P. insists that, even if the CIA shouldn’t, “the Pentagon can take action against the American, as the administration has ruled him an enemy combatant under the [2001] Authorization for Use of Military Force.” This was Congress’s panicked legislative response to 9/11 which, though it might not have specifically _mentioned_ any doctrine of White House-designated “enemy combatants” losing all constitutional rights, has now been interpreted as doing so by both the Bush and Obama Administrations.  Years ago, when the Bush Administration was jailing (but not yet killing) “enemy combatants” without trial, reporters were apt to label the “enemy combatant” doctrine controversial.  But now that Obama is not just jailing but killing the bad people against whom it can produce no evidence, now that it defines every last corner of the world as governed not by any civil law but by a universally precedent Law of War, the “enemy combatant” principle is more than constitutional: it’s downright bipartisan.

With no courts to speak of and with blank-check law left to the President to write retroactively, all that’s left for the commanders of our military and intelligence organizations to consider is “the potential domestic fallout” of assassination of Americans.  How will it poll?   Will it give one of the parties an advantage in its quadrennial contest against the other, for the last office in the Government that has any influence over the reasons for which an American is executed?

THE GIFT OF TODAY

Today’s leaks represent another historic softening of Obama assassination policy following generous promises leaked last year, to _try_ and have soldiers rather than spies do the killing, whether of Americans without trial or foreign civilians without number, on a newly declared global battlefield where no law but the Law of War remains.

Not that the Executive Branch’s former rivals to power, the courts or the legislature, will be relevant to the process: this is “due process” and doesn’t need to be “judicial”: but they might let the Pentagon in instead of giving the CIA sole access, which is apparently supposed to be a balance of power.

And the press!  Today’s leaks go even beyond empowering the Pentagon, with the exciting promise of an assassination list that may still have been drafted behind closed White House doors, but this time with exciting press leaks accompanying them.  This is openness.  Democracy!

The sources can’t be identified, lest they be called upon to defend what they’re witnessed and said: but when an unnamed American is to be killed, to prevent crimes they haven’t actually committed but might even now be planning, we will not be denied our celebrity gossip.   We breathlessly await the reveal of their name, along with the star footage the drone will have filmed of their Gala Event, their Candid Camera surprise.   We might even get a few more hints of why it had to happen.   Through the press, in leaks and speeches, lip service will continue to be paid to the principles on which our country was founded and which it has nostalgically, lovingly outgrown – new rules will be thrown up and then only partly broken so as to avoid “domestic fallout,” measured not in prison sentences for rogue politicians using lethal force, but ratings dips.

Lip service will have a new name.   We’re already calling it “due process.”

Sean Reynolds is a Staff Writer for People Against the NDAA.