I don't usually post articles as "Must Read" any more, but this one really
spells out the objections to the DOJ memo better than anything else I've read
so far.
Romi
Top Five Objections to the White House's Drone Killing Memo
By Juan Cole, Informed Comment
06 February 13
BC's Michael Isikoff has revealed the text of a white paper composed for
Congress by the Department of Justice that sheds light on
the legal arguments made by Eric Holder in justifying the killing by
drone strike of Americans abroad, who are suspected of belonging to
al-Qaeda. That the memo did not even require that the US know of a
specific and imminent plot against the US, of which the al-Qaeda member
was guilty, for it to kill him from the skies, alarmed all the country's civil
libertarians.
Here are five objections to the vision of the memo,
which it seems to me is directly contrary to the spirit and the letter
of the US constitution. It is contrary in profound ways to the ideals of the
founding generation.
1. In the Western tradition of law, there can be no
punishment without the commission of a specific crime defined by
statute. The memo does not require that a specific crime have been
committed, or that a planned criminal act be a clear and present danger, for an
American citizen to be targeted for execution by drone.
2. To any extent that the president's powers under the memo are alleged to
derive from the 2001 Congressional Authorization
for the Use of Military Force, i.e. from the legislature, they are a
form of bill of attainder (the History Learning Site explains what that is
here):
"A bill, act or writ of attainder was a piece of
legislation that declared a person or persons guilty of a crime. A bill
of attainder allowed for the guilty party to be punished without a
trial. A bill of attainder was part of English common law. Whereas
Habeus Corpus guaranteed a fair trial by jury, a bill of attainder
bypassed this. The word 'attainder' meant tainted. A bill of attainder
was mostly used for treason . . . and such a move suspended a person's
civil rights and guaranteed that the person would be found guilty of the crimes
stated in the bill as long as the Royal Assent was gained. For
serious crimes such as treason, the result was invariably execution."
What, you might ask, is wrong with that? Only that it is unconstitutional. Tech
Law Journal explains:
"The Constitution of the United States, Article I,
Section 9, paragraph 3 provides that: "No Bill of Attainder or ex post
facto Law will be passed." . . .
"These clauses of the Constitution are not of the broad, general nature of the
Due Process Clause, but refer to rather precise
legal terms which had a meaning under English law at the time the
Constitution was adopted. A bill of attainder was a legislative act that
singled out one or more persons and imposed punishment on them, without benefit
of trial. Such actions were regarded as odious by the framers
of the Constitution because it was the traditional role of a court,
judging an individual case, to impose punishment." William H. Rehnquist, The
Supreme Court, page 166.
The form of the AUMF, in singling out all members of
al-Qaeda wherever they are and regardless of nationality or of actual
criminal action, as objects of legitimate lethal force, is that of a
bill of attainder. Congress cannot declare war on small organizations - war is
declared on states. Such a bill of attainder is inherently
unconstitutional.
3. The memo's vision violates the principle of the
separation of powers. It makes the president judge, jury and
executioner. Everything is done within the executive branch, with no
judicial oversight whatsoever. The powers the memo grants the president
are the same enjoyed by the absolute monarchs of the early modern
period, against whom Montesquieu penned his Spirit of the Laws, which inspired
most subsequent democracies, including the American. Montesquieu said:
"Again, there is no liberty, if the judiciary power be
not separated from the legislative and executive. Were it joined with
the legislative, the life and liberty of the subject would be exposed to
arbitrary control; for the judge would be then the legislator. Were it
joined to the executive power, the judge might behave with violence and
oppression.
There would be an end of everything, were the same man
or the same body, whether of the nobles or of the people, to exercise
those three powers, that of enacting laws, that of executing the public
resolutions, and of trying the causes of individuals.
Most kingdoms in Europe enjoy a moderate government
because the prince who is invested with the two first powers leaves the
third to his subjects. In Turkey, where these three powers are united in the
Sultan's person, the subjects groan under the most dreadful
oppression.
Ironically, given contemporary American Islamophobia,
the Obama administration has made itself resemble not the Sun-King,
Louis XIV, who at least did have a court system not completely under his thumb,
but rather, as Montesquieu saw it, the Ottoman sultans, who he
claimed combined in themselves executive, legislative and judicial
power. (Actually the Muslim qadis or court judges who ruled according to
Islamic law or sharia were also not completely subjugated to the
monarch, so even the Ottomans were better than the drone memo).
3. The memo resurrects the medieval notion of
"outlawry" - that an individual can be put outside the protection of the law by
the sovereign for vague crimes such as "rebellion," and merely
by royal decree. A person declared an outlaw by the king was deprived of all
rights and legal protections, and anyone could do anything to him
that they wished, with no repercussions. (The slang use of "outlaw" to
mean simply "habitual criminal" is an echo of this ancient practice,
which was abolished in the UK and the US).
I wrote on another occasion that the problem with
branding someone an "outlaw" by virtue of being a traitor or a terrorist is
that this whole idea was abolished by the US constitution. Its
framers insisted that you couldn't just hang someone out to dry by
decree. Rather, a person who was alleged to have committed a crime such
as treason or terrorism had to be captured, brought to court, tried, and
sentenced in accordance with a specific statute, and then punished by
the state. If someone is arrested, they have the right to demand to be
produced in court before a judge, a right known as habeas corpus
("bringing the body," i.e. bringing the physical person in front of a
judge).
The relevant text is the Sixth Amendment in the Bill of Rights:
In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted
with the witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his
defence.
4. The memo asks us to trust the executive to
establish beyond the shadow of a doubt the guilt of an individual in a
distant land, to whom access is so limited that the US cannot hope to
capture him or have local authorities capture him. But Andy Worthington has
established that very large numbers of the
prisoners the US sent to Guantanamo were innocent of the charges against them.
If the executive arm of the government can imprison people
mistakenly, it can blow them away by drone mistakenly. A US government
official once told me the story of an Iraqi Shiite who had fled
persecution under Saddam through Iran all the way to Afghanistan. In
2001, locals eager to make a buck turned him in as "Taliban" to the US
military, which apparently did not realize that Iraqi Shiites would
never ever support a hyper-Sunni movement like that. So the Iraqi Shiite was
sent to Guantanamo and it could even be that Taliban themselves
were paid by the US for turning him in. The official may have been
speaking of Jowad Jabar. These American officials are way too ignorant to be
given the power to
simply execute human beings from the sky on the basis of their so-called
'intelligence.'
5. The memo, as Glenn Greenwald points out, ratifies the Bush/Cheney theory
that the whole world is a battlefield on which the US is continually at war.
Treating the few hundred
al-Qaeda, spread around the world in 60 small cells, as an enemy army,
making them analogous to German troops in WW II, is insane on the face
of it. Our current secretary of state, John Kerry, largely rejected the
notion. Al-Qaeda consists of criminals, not soldiers, and they pose a
police counter-terrorism problem, not a battlefield problem. The notion
that the whole world is a battlefield violates basic legal conceptions
of international law such as national sovereignty.
http://readersupportednews.org/opinion2/277-75/15901-focus-top-five-objections-to-the-white-houses-drone-killing-memo
[Non-text portions of this message have been removed]
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