In the early days of WWII, the U.S. government put immigrants from the enemy countries of Germany, Japan and Italy under various restrictions. The most severe of these restrictions were: forced evacuation from prohibited zones, and internment in camps set up on various Army bases. Neither of these penalties was imposed because of actions taken by any of those affected, for none had done anything. They were imposed because the government had ruled that the affected persons were “potentially dangerous.” In the evacuation cases, the suspicion was applied to the whole group, without individual adjudication of “dangerousness:” all enemy aliens were forced to leave homes or jobs in a given prohibited zone, usually along the coast. In the internment case, the suspicion was applied to specific individuals who had appeared, for some reason, on the government’s ‘custodial detention index’. The cause could be overheard statements favoring an enemy leader, or the enemy country, or simply an accusation by a friend, acquaintance, or rival. In most cases, the individual affected had no idea why he was considered “dangerous;” in fact, at hearings for internees, they were not allowed to know the charges against them, but only to “prove their innocence.” If they failed, which most did, the internment orders were final.
Since 9/11, the United States has been engaged in yet another global war, and in this war, too, individuals are investigated and judged to be “terrorists” or “terrorist sympathizers,” even absent any actions they may take or have taken. The difference, now, is that if certain conditions are met, an individual—including an American citizen—can be killed. No trial. No jury. No chance for the person to question evidence or protest his innocence. He is simply made the target of a kill order—usually by drone—and he is eliminated.
This process has been the subject of increasing scrutiny of late, and recently NBC news published a “white paper” from the Department of Justice outlining the reasons and conditions under which the Obama administration can assassinate a suspected terrorist. The assassination can be done in any country, at any time, whether or not the United States is at war with that country, and whether or not the individual is actually in the process of planning or mounting a terrorist operation against the United States. It should be said that this “white paper” or memo is not the official legal memo authorizing this procedure from the Office of Legal Counsel. The Obama administration refuses to release that. But it is an astonishing document nonetheless, being the administration’s attempt to justify the President’s power to order the murder of a suspected terrorist, even if he is a U.S. citizen, without judicial or any other kind of review. In other words, the right to due process granted every American (and indeed every resident of the United States, citizen or not, to know and be able to contest the charges against him) is simply not operative where this kill procedure is concerned. The President’s (or whoever is empowered to authorize such assassinations) word is final. And we know for certain that at least two American citizens—Anwar Awlaki, and then his 16-year-old American son, Abdulrahman Awlaki—were indeed killed in two separate drone strikes in Yemen in September 2011. Of course, the administration has contended that Awlaki, a Muslim imam, has plotted and ordered attacks on the United States. But whether he has or has not done so (we have only the Administration’s word on this), he was simply targeted and killed by a drone strike. It is not clear whether his son, at age 16, was also considered to have been plotting, or was judged guilty by reason of genetic inheritance; no matter, he was eliminated as well.
Glenn Greenwald, among others, has written about this new memo titled “Lawfulness of a Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of Al-Qua’ida or an Associated Force”, and outlines several of the most egregious elements it contains (see Glenn Greenwald, “Chilling Legal Memo from Obama DOJ,” commondreams.org, 2/5/13) . They are mouth-dropping. The first is the fundamental violation of our core legal protections, due process and the presumption of innocence until proven guilty. The founding fathers made these a key part of the new nation’s legal system primarily to head off the arbitrary and absolute power wielded by traditional monarchs to eliminate their enemies by decree. “Off with their heads” is the popular way of putting this. No, said the framers of our Constitution; an offense must be proved in a court of law. But as Greenwald puts it, this constitutes the “core distortion under both Bush and Obama: equating government accusations of terrorism with proof of guilt.” This is precisely what happened in WWII to enemy aliens. They were presumed guilty unless and until they could prove their innocence. The same thing is happening now—only with the serious difference that the presumption of guilt now becomes a death sentence. Anyone accused by the U.S. government of terrorism is, ipso facto, a terrorist—no evidence or trial needed. And to be a terrorist means to be plotting against the United States, and therefore to be guilty and deserving of death—no questions asked.
During World War II, the FBI had, over some years, produced a custodial detention list—a list it activated by arresting and interning thousands on that list right after Pearl Harbor. Today, however, it is the President and a few key aides who produce another list—this time a “kill list.” The New York Times has written about the presumed procedure for targeting a terrorist on this list for a lethal drone strike, and it is another chilling aspect of the process. Here is how Greenwald summarizes it:
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.
The president’s men claim that proof (however flimsy) of being a “senior leader of Al-Quaida” plotting an attack is a sufficient condition for execution. BUT as Greenwald points out, even this is not a necessarycondition. The memo makes clear that assassinations may in fact be permitted “even when the target is not a senior Al-Quaida leader posing an imminent threat.” In short, in a process this secret, with no checks or balances whatever, the person exercising such arbitrary authority can call for the assassination of anyone he chooses. Death by presidential fiat allows for no review, either before or after the death sentence. It makes moot any question of whether the accused person was, in fact, an al-Quaida leader, whether, in fact, there was a chance of capturing rather than killing him, and whether, in fact, a specific attack was “imminent” (this notion of “imminence” is a prime justification for killing someone who has not actually committed a crime; it’s akin to the idea of “potentially dangerous”) at the time of the assassination. As Greenwald points out, “the U.S. routinely assassinates its targets not when they are engaged in or plotting attacks but when they are at home, with family members, riding in a car, at work, at funerals, rescuing other drone victims, etc.”
There are more astonishing aspects to this new and radical power claimed by a president who campaigned on the idea that the Bush White House had violated constitutionally-sanctioned war powers both by its invasion of Iraq and by its indefinite detention of “enemy combatants” without trial at Guantanamo. But here we have Barack Obama, a putative “liberal,” arrogating to himself the supreme power of death-by-drone with no oversight whatever. It is one of the grim ironies of the current situation in which the United States finds itself: advertising itself as the great bastion of liberty and due process, and at the same time engaging in the same kinds of targeted assassinations long favored by tyrants of every stripe.
A warning given a few years ago by legal scholar David Cole, should be remembered here: “what we are willing to allow our government to do to immigrants creates precedents for how it treats citizens” (David Cole, “Enemy Aliens,” Stanford Law Review, V54, p959). In the present situation, the precedent to kill U.S. citizens has already been established in Yemen. How long it will take for this precedent to reach citizens in the United States is anyone’s guess. After that, it will only be a matter of time for the next question to arise: which of us will be next?
Lawrence DiStasi
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