by Peter Van Buren

You can’t get more serious about protecting the people from their government than the Fifth Amendment to the Constitution, specifically in its most critical clause: “No person shall be… deprived of life, liberty, or property, without due process of law.” In 2011, the White House ordered the [...]]]> Drone-Killing the Fifth Amendment

by Peter Van Buren

You can’t get more serious about protecting the people from their government than the Fifth Amendment to the Constitution, specifically in its most critical clause: “No person shall be… deprived of life, liberty, or property, without due process of law.” In 2011, the White House ordered the drone-killing of American citizen Anwar al-Awlaki without trial. It claimed this was a legal act it is prepared to repeat as necessary. Given the Fifth Amendment, how exactly was this justified? Thanks to a much contested, recently released but significantly redacted — about one-third of the text is missing — Justice Department white paper providing the basis for that extrajudicial killing, we finally know: the president in Post-Constitutional America is now officially judge, jury, and executioner.

Due Process in Constitutional America

Looking back on the violations of justice that characterized British rule in pre-Constitutional America, it is easy to see the Founders’ intent in creating the Fifth Amendment. A government’s ability to inflict harm on its people, whether by taking their lives, imprisoning them, or confiscating their property, was to be checked by due process.

Due process is the only requirement of government that is stated twice in the Constitution, signaling its importance. The Fifth Amendment imposed the due process requirement on the federal government, while the Fourteenth Amendment did the same for the states. Both offer a crucial promise to the people that fair procedures will remain available to challenge government actions. The broader concept of due process goes all the way back to the thirteenth-century Magna Carta.

Due process, as refined over the years by the Supreme Court, came to take two forms in Constitutional America. The first was procedural due process: people threatened by government actions that might potentially take away life, liberty, or possessions would have the right to defend themselves from a power that sought, whether for good reasons or bad, to deprive them of something important. American citizens were guaranteed their proverbial “day in court.”

The second type, substantive due process, was codified in 1938 to protect those rights so fundamental that they are implicit in liberty itself, even when not spelled out explicitly in the Constitution. Had the concept been in place at the time, a ready example would have been slavery. Though not specifically prohibited by the Constitution, it was on its face an affront to democracy. No court process could possibly have made slavery fair. The same held, for instance, for the “right” to an education, to have children, and so forth. Substantive due process is often invoked by supporters of same-sex unions, who assert that there is a fundamental right to marry. The meaning is crystal clear: there is an inherent, moral sense of “due process” applicable to government actions against any citizen and it cannot be done away with legally. Any law that attempts to interfere with such rights is inherently unconstitutional.

Al-Awlaki’s Death

On September 30, 2011, on the order of the president, a U.S. drone fired a missile in Yemen and killed Anwar al-Awlaki. A Northern Virginia Islamic cleric, in the aftermath of 9/11 he had been invited to lunch at the Pentagon as part of a program to create ties to Muslim moderates. After he moved to Yemen a few years later, the U.S. accused him of working with al-Qaeda as a propagandist who may have played an online role in persuading others to join the cause. (He was allegedly linked to the “Underwear Bomber” and the Fort Hood shooter.) However, no one has ever accused him of pulling a trigger or setting off a bomb, deeds that might, in court, rise to the level of a capital crime. Al-Awlaki held a set of beliefs and talked about them. For that he was executed without trial.

In March 2012, Attorney General Eric Holder made quite a remarkable statement about the al-Awlaki killing. He claimed “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’” In other words, according to the top legal authority in the nation, a White House review was due process enough when it came to an American citizen with al-Qaeda sympathies. In this, though it was unknown at the time, Holder was essentially quoting a secret white paper on that killing produced by the Office of Legal Counsel, located in the department he headed.

In June 2014, after a long court battle to shield the underlying legal basis for the killing, the Obama administration finally released a redacted version of that classified 2010 white paper. In the end, it did so only because without its release key senators were reluctant to confirm the memo’s author, David Barron, who had been nominated by President Obama to serve on the First Circuit Court of Appeals. (Once it was made public, Barron was indeed confirmed.)

The importance of the white paper to understanding Post-Constitutional America cannot be understated. Despite all the unconstitutional actions taken by the government since 9/11 — including striking violations of the Fourth Amendment — this paper is to date the only glimpse we have of the kind of thinking that has gone into Washington’s violations of the Bill of Rights.

Here’s the terrifying part: ostensibly the result of some of the best legal thinking available to the White House on a issue that couldn’t be more basic to the American system, it wouldn’t get a first-year law student a C-. The arguments are almost bizarrely puerile in a document that is a visibly shaky attempt to provide cover for a pre-determined premise. No wonder the administration fought its release for so long. Its officials were, undoubtedly, ashamed of it. Let’s drill down.

Death by Pen

For the killing of an American citizen to be legal, the document claims, you need one essential thing: “an informed, high-level official of the U.S. government [who] has determined that the targeted individual poses an imminent threat of violent attack against the United States.” In addition, capture must be found to be unfeasible and the act of killing must follow the existing laws of war, which means drones are okay but poison gas is a no-no.

The rest of the justification in the white paper flows from that premise in a perverse chain of ankle-bone-connected-to-the-leg-bone logic: the president has the obligation to protect America; al-Qaeda is a threat; Congress authorized war against it; and being in al-Qaeda is more relevant than citizenship (or as the document crudely puts it, “citizenship does not immunize the target”). International borders and the sovereignty of other nations are not issues if the U.S. determines the host nation is “unwilling or unable to suppress the threat posed by the individual targeted.” Basically, it’s all an extension of the idea of self-defense, with more than a dash of convenience shaken in.

When the white paper addresses the Fifth Amendment’s right to due process, and to a lesser extent, the Fourth Amendment’s right against unwarranted seizure (that is, the taking of a life), it dismisses them via the “balancing test.” Not exactly bedrock constitutional material, it works this way: in situations where the government’s interest overshadows an individual’s interest, and the individual’s interest isn’t that big a deal to begin with, and a mistake by the government can later be undone, the full due process clause of the Fifth Amendment need not come into play.

The three-point balancing test cited by the white paper as conclusive enough to justify the extrajudicial killing of an American comes from a 1976 Supreme Court case, Mathews v. Eldridge. There, the court held that an individual denied Social Security benefits had a right to some form of due process, but not necessarily full-blown hearings. In Anwar al-Awlaki’s case, this translates into some truly dubious logic: the government’s interest in protecting Americans overshadows one citizen’s interest in staying alive. Somehow, the desire to stay alive doesn’t count for much because al-Awlaki belonged to al-Qaeda and was in the backlands of Yemen, which meant that he was not conveniently available by capture for a trial date. Admittedly, there’s no undoing death in a drone killing, but so what.

The white paper also draws heavily on the use of the balancing test in the case of Hamdi v. Rumsfeld, in which the U.S. rendered from Afghanistan Yaser Hamdi, a Saudi-American citizen, and sought to detain him indefinitely without trial. After a long legal battle that went to the Supreme Court, the balance test was applied to limit — but not fully do away with — due process. Despite limiting Hamdi’s rights in service to the war on terror, the court was clear: Yaser Hamdi should have a meaningful opportunity to challenge his status. Fearing that giving him his moment in court would expose the brutal reality of his capture, interrogation, and detention, the U.S. government instead released him to Saudi Arabia.

Hamdi’s case dealt with procedural questions, such as whether he should be allowed a trial and if so, under what conditions. As with Mathews v. Eldridge, Hamdi never focused on issues of life and death. Cases can be (re)tried, prisoners released, property returned. Dead is dead — in the case of al-Awlaki that applies to the drone’s target, the balance test, and the Fifth Amendment itself.

What Do Words Mean in Post-Constitutional America?

Having dispensed with significant constitutional issues thanks to some exceedingly dubious logic, the white paper returns to its basic premise: that a kill is legal when that “informed, high-level official” determines that an “imminent threat” to the country is involved. In other words, if the president is convinced, based on whatever proof is provided, he can order an American citizen killed. The white paper doesn’t commit itself on how far down the chain of “high-level officials” kill authority can be delegated. Could the Secretary of the Interior, for instance, issue such an order? He or she is, after all, eighth in the line of succession should the president die in office.

The white paper does, however, spend a fair amount of time explaining how the dictionary definitions of “imminent” and “immediate” do not apply. For kill purposes, it says, the U.S. must have “clear evidence that a specific attack on U.S. persons will take place in the immediate future.” However, the paper goes on to explain that “immediate” can include a situation like al-Awlaki’s in which a person may or may not have been engaged in planning actual attacks that might not be launched for years, or perhaps ever. The paper claims that, since al-Qaeda would prefer to attack the U.S. on a continual basis, any planning or forethought today, however fantastical or future-oriented, constitutes an “imminent” attack that requires sending in the drones.

And if, as perhaps the author of the paper suspected, that isn’t really enough when faced with the bluntness of the Constitution on the issue, the white paper haphazardly draws on the public authority justification. According to this legal concept, public authorities can, in rare circumstances, violate the law  — a cop can justifiably kill a bad guy under certain conditions. By extension, the white paper argues, the government of the United States can drone-kill a citizen who is allegedly a member of al-Qaeda. The white paper conveniently doesn’t mention that police shootings are subject to judicial review, and those who commit such unlawful acts can face punishment. The laws behind such a review are unclassified and public, not the rationed fodder of a redacted white paper.

For the final nail in the coffin of some American citizen, the white paper concludes that, Fifth Amendment violation or not, its arguments cannot be challenged in court. In cases of “foreign policy,” courts have traditionally almost always refused to intervene, holding that they are in the realm of the executive branch in consultation, as required, with Congress. Killing an American abroad, the white paper insists, is a foreign policy act and so none of any courts’ business.

Principles

Substantive due process legally applies only to legislation, and it is highly unlikely that the Obama administration will seek legislative sanction for its kill process. So it is in one sense not surprising that the white paper makes no mention of it. However, looking at what we can read of that redacted document through the broader lens of substantive due process does tell us a lot about Post-Constitutional America. In Constitutional America, the idea was that a citizen’s right to life and the due process that went with it was essentially an ultimate principle that trumped all others, no matter how bad or evil that person might be. What is important in the white paper is not so much what is there, but what is missing: a fundamental sense of justness.

As medieval kings invoked church sanction to justify evil deeds, so in our modern world lawyers are mobilized to transform government actions that spit in the face of substantive due process — torture, indefinite detention without charge, murder — into something “legal.” Torture morphs into acceptable enhanced interrogation techniques, indefinite detention acquires a quasi-legal stance with the faux-justice of military tribunals, and the convenient murder of a citizen is turned into an act of “self-defense.” However unpalatable Anwar al-Awlaki’s words passed on via the Internet may have been, they would be unlikely to constitute a capital crime in a U.S. court. His killing violated the Fifth Amendment both procedurally and substantively.

Despite its gravity, once the white paper was pried loose from the White House few seemed to care what it said. Even the New York Times, which had fought in court alongside the ACLU to have it released, could only bring itself to editorialize mildly that the document offered “little confidence that the lethal action was taken with real care” and suggest that the rubber-stamp secret Foreign Intelligence Surveillance Court be involved in future kill orders. The ACLU’s comments focused mostly on the need for more documentation on the kills. Meanwhile, a majority of Americans, 52%, approve of drone strikes, likely including the one on Anwar al-Awlaki.

The Kind of Country We Live In

We have fallen from a high place. Dark things have been done. Imagine, pre-9/11, the uproar if we had learned that the first President Bush had directed the NSA to sweep up all America’s communications without warrant, or if Bill Clinton had created a secret framework to kill American citizens without trial. Yet such actions over the course of two administrations are now accepted as almost routine, and entangled in platitudes falsely framing the debate as one between “security” and “freedom.” I suspect that, if they could bring themselves to a moment of genuine honesty, the government officials involved in creating Post-Constitutional America would say that they really never imagined it would be so easy.

In one sense, America the Homeland has become the most significant battleground in the war on terror. No, not in the numbers of those killed or maimed, but in the broad totality of what has been lost to us for no gain. It is worth remembering that, in pre-Constitutional America, a powerful executive — the king — ruled with indifference to the people. With the Constitution, we became a nation, in spirit if not always in practice, based on a common set of values, our Bill of Rights. When you take that away, we here in Post-Constitutional America are just a trailer park of strangers.

– Peter Van Buren blew the whistle on State Department waste and mismanagement during the Iraqi reconstruction in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A Tom Dispatch regular, he writes about current events at his blog, We Meant Well. His new book, Ghosts of Tom Joad: A Story of the #99Percent, is available now.

This article was first published by Tom Dispatch and was reprinted here with permission. Follow TomDispatch on Twitter and join us on Facebook and Tumblr. Check out the newest Dispatch Book, Rebecca Solnit’s Men Explain Things to Me. Copyright 2014 Peter Van Buren

by Tyler Cullis

Today news broke that the Obama administration is considering targeting a U.S. citizen located in Pakistan with lethal force. This quickly restarted the debate over what legal authorities the President has in drone strikes, what policies the administration has put in place to ensure that the targeted individual, [...]]]> via LobeLog

by Tyler Cullis

Today news broke that the Obama administration is considering targeting a U.S. citizen located in Pakistan with lethal force. This quickly restarted the debate over what legal authorities the President has in drone strikes, what policies the administration has put in place to ensure that the targeted individual, in fact, poses a “continuing, imminent threat to U.S. persons,” and whether the legal criteria being employed for targeting meets international law standards.

The New York Times reports:

The Obama administration is debating whether to authorize a lethal strike against an American citizen living in Pakistan who some believe is actively plotting terrorist attacks, according to current and former government officials.
…

American officials said that the new discussions about whether to strike the American in Pakistan had been going on since the middle of last year.

That timeline makes this the first case in which the administration will be seriously considering using lethal force against a U.S. citizen since the killing of Yemen-based U.S. citizen, Anwar al-Awlaki, and the leak of the DOJ’s “White Paper”. That memo set forth the legal standards under which the administration would be deciding whether to use force against a U.S. citizen who is believed to be an operational leader of al-Qaeda or one of its associated forces. The White Paper” led to sharp criticism from U.S. and international lawyers, many of whom saw adventurism in the Department’s legal position and little faithfulness to actual law.

Those problems have not abated since last summer and risk embroiling the White House in one further controversy over its drone program – both at home and abroad. Here in the U.S., lawsuits remain pending as to the killing of al-Awlaki, where it is alleged that President Obama circumvented basic constitutional values — like ‘due process’  — in conducting a ‘closed executive process’ to determine whether or not to place al-Awlaki on the ‘kill list’. (From today’s stories, that process seems to have remained intact.)

International law experts, likewise, have questioned the relaxed definition of “imminence” that the White House has employed in targeting individuals. According to the administration’s definition, U.S. persons can be targeted provided they are an “operational leader of al-Qaeda or associated forces,” and are “personally and continually involved in planning terrorist attacks against the United States.” This clearly departs from the prevailing standard in international human rights law, where individuals can be targeted with lethal force only as a last resort against a specific, imminent threat of grave harm.

Finally, the United States continues to face international opprobrium for its insistence on maintaining a “war everywhere” approach to al-Qaeda, thereby running roughshod over traditional jus ad bellum and jus in bello rules. Even amongst its European allies, the White House has faced stinging criticism. Whether the Obama administration is willing to risk further censure over its extensive drone operations — especially while it is gently pulling the reins back on the program — will likely prove to be a major part of White House deliberations in the weeks ahead.

via IPS News

Responding to growing criticism by human rights groups and foreign governments, U.S. President Barack Obama Thursday announced potentially significant shifts in what his predecessor called the “global war on terror”.

In a major policy address at the National Defense University here, Obama said drone strikes against [...]]]> by Jim Lobe

via IPS News

Responding to growing criticism by human rights groups and foreign governments, U.S. President Barack Obama Thursday announced potentially significant shifts in what his predecessor called the “global war on terror”.

In a major policy address at the National Defense University here, Obama said drone strikes against terrorist suspects abroad will be carried out under substantially more limited conditions than during his first term in office.

He also renewed his drive to close the U.S. detention facility at Guantanamo Bay, Cuba, which currently only holds 166 prisoners.

In particular, he announced the lifting of a three-year-old moratorium on repatriating Yemeni detainees to their homeland and the appointment in the near future of senior officials at both the State Department and the Pentagon to expedite the transfer the 30 other prisoners who have been cleared for release to third countries.

In addition, he said he will press Congress to amend and ultimately repeal its 2001 Authorization to Use Military Force (AUMF) against Al-Qaeda and others deemed responsible for the 9/11 attacks “(in order) to determine how we can continue to fight terrorists without keeping America on a perpetual war-time footing.”

The AUMF created the legal basis for most of the actions – and alleged excesses — by U.S. military and intelligence agencies against alleged terrorists and their supporters since 9/11.

“The AUMF is now nearly 12 years old. The Afghan War is coming to an end. Core Al-Qaeda is a shell of its former self,” he declared. “Groups like AQAP (Al-Qaeda in the Arabian Peninsula) must be dealt with, but in the years to come, not every collection of thugs that labels themselves Al-Qaeda will pose a credible threat to the United States.”

“Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant presidents unbound powers more suited for traditional armed conflicts between nation states,” he warned.

His remarks gained a cautious – if somewhat sceptical and impatient – welcome from some of the groups that have harshly criticised Obama’s for his failure to make a more decisive break with some of former President George W. Bush’s policies and to close Guantanamo, and his heavy first-term reliance on drone strikes against Al-Qaeda and other terrorist suspects.

“President Obama is right to say that we cannot be on a war footing forever – but the time to take our country off the global warpath and fully restore the rule of law is now, not at some indeterminate future point,” said Anthony Romero, executive director of the American Civil Liberties Union (ACLU).

Romero especially praised Obama’s initial moves to transfer detainees at Guantanamo but noted that he had failed to offer a plan to deal with those prisoners who are considered too dangerous to release but who cannot be tried in U.S. courts for lack of admissible evidence. He also called the new curbs on drone strikes “promising” but criticised Obama’s continued defence of targeted killings.

Obama’s speech came amidst growing controversy over his use of drone strikes in countries – particularly Pakistan, Yemen, and Somalia – with which the U.S. is not at war. Since 9/11, the U.S. has conducted more than 400 strikes in the three countries with a total death toll estimated to range between 3,300 and nearly 5,000, depending on the source. The vast majority of these strikes were carried out during Obama’s first term.

While top administration officials have claimed that almost all of the victims were suspected high-level terrorists, human rights groups, as well as local sources, have insisted that many civilian non-combatants – as well as low-level members of militant groups — have also been killed.

In a letter sent to Obama last month, some of the country’s leading human rights groups, including the ACLU, Amnesty International, and Human Rights First, questioned the legality of the criteria used by the Central Intelligence Agency (CIA) and the Pentagon’s Joint Special Operations Command (JSOC) to select targets.

Earlier this month, the legal adviser to former Secretary of State Hillary Clinton, Harold Koh, also criticised the administration for the lack of transparency and discipline surrounding the drone programme.

In his speech Thursday, Obama acknowledged the “wide gap” between his government and independent assessments of casualties, but he strongly defended the programme as effective, particularly in crippling Al-Qaeda’s Pakistan-based leadership, legal under the AUMF, and more humane than the alternative in that “(c)onventional airpower or missiles are far less precise than drones, and likely to cause more civilian casualties and local outrage.”

“To do nothing in the face of terrorist networks would invite far more civilian casualties – not just in our cities at home and facilities abroad, but also in the very places – like Sana’a and Kabul and Mogadishu – where terrorists seek a foothold,” he said.

According to a “Fact Sheet” released by the White House, lethal force can be used outside of areas of active hostilities when there is a “near certainty that a terrorist target who poses a continuing, imminent threat to U.S. persons” is present and that non-combatants will not be injured or killed. In addition, U.S. officials must determine that capture is not feasible and that local authorities cannot or will not effectively address the threat.

The fact sheet appeared to signal an end to so-called “signature strikes” that have been used against groups of men whose precise is identity is unknown but who, based on surveillance, are believed to be members of Al-Qaeda or affiliated groups.

If the target is a U.S. citizen, such as Anwar Awlaki, a U.S.-born cleric who the administration alleged had become an operational leader of AQAP and was killed in a 2011 drone strike in Yemen, Obama said there would be an additional layer of review and that he would engage Congress on the possibility of establishing a secret court or an independent oversight board in the executive branch.

On Wednesday, the Justice Department disclosed that three other U.S. citizens – none of whom were specifically targeted – have been killed in drone strikes outside Afghanistan.

On Guantanamo, where 102 of the 166 remaining detainees are participating in a three-month-old hunger strike, Obama said he would permit the 56 Yemenis there whose have been cleared for release to return home “on a case-by-case basis”. He also re-affirmed his determination to transfer all remaining detainees to super-max or military prisons on U.S. territory – a move that Congress has so far strongly resisted. He also said he would insist that every detainee have access to the courts to review their case.

In addition to addressing the festering drone issue and Guantanamo, however, the main thrust of Thursday’s speech appeared designed to mark what Obama called a “crossroads” in the struggle against Al-Qaeda and its affiliates and how the threat from them has changed.

“Lethal yet less capable Al-Qaeda affiliates. Threats to diplomatic facilities and businesses abroad. Homegrown extremists. This is the future of terrorism,” he said. “We must take these threats seriously, and do all we can to confront them. But as we shape our response, we have to recognise that the scale of this threat closely resembles the types of attacks we faced before 9/11.”

“Beyond Afghanistan,” he said later, “we must define our effort not as a boundless ‘global war on terror’ – but rather as a series of persistent, targeted efforts to dismantle specific networks of violent extremists that threaten America.”

Obama also disclosed he had signed a Presidential Policy Guidance Wednesday to codify the more restrictive guidelines governing the use of force.

White House officials who brief reporters before the speech suggested that, among other provisions, the Guidance called for gradually shifting responsibility for drone strikes and targeted killings from the CIA to the Pentagon – a reform long sought by human-rights groups.

The grandfather of the 16-year-old American-Yemeni boy who was killed by a CIA drone strike in Yemen last year is suing 4 US officials, including Defense Secretary Leon Panetta and Former CIA Director David Petraeus, over his son and grandson’s deaths.

The father of the Colorado-born Abdulrahman al Awlaki’s was an al [...]]]> via Lobe Log

The grandfather of the 16-year-old American-Yemeni boy who was killed by a CIA drone strike in Yemen last year is suing 4 US officials, including Defense Secretary Leon Panetta and Former CIA Director David Petraeus, over his son and grandson’s deaths.

The father of the Colorado-born Abdulrahman al Awlaki’s was an al Qaeda leader. Rights groups and reporters have argued that the boy was extrajudicially killed for his father’s actions. The fact that he was an American civilian killed by the US military in a country with which Washington is not at war also raised legal and ethical questions.

But Americans appear to favor drone strikes over all. A February 2012 Washington Post/ABC poll says 83 percent of Americans support drone strikes and 79 percent approve even when US citizens are targeted. Interestingly, Americans appear far less supportive of drone technology used for domestic law enforcement targeting citizens.