On the Claimed *War Exception* to the Constitution: Glenn Greenwald on Salon.com, and a Commentary from Me
This is part of a piece by Glenn Greenwald, called to my attention by John Cochrane.
At first I was simply appalled by what I read there. Upon further reflection, I saw that the issue involved here is not so simply judged. My comments along these lines follow the piece.
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On the claimed “war exception” to the Constitution
By Glenn Greenwald
Salon.com, February 4, 2010
Last week, I wrote about a revelation buried in a Washington Post article by Dana Priest which described how the Obama administration has adopted the Bush policy of targeting selected American citizens for assassination if they are deemed (by the Executive Branch) to be Terrorists. As The Washington Times’ Eli Lake reports, Adm. Dennis Blair was asked about this program at a Congressional hearing yesterday and he acknowledged its existence:
The U.S. intelligence community policy on killing American citizens who have joined al Qaeda requires first obtaining high-level government approval, a senior official disclosed to Congress on Wednesday.
Director of National Intelligence Dennis C. Blair said in each case a decision to use lethal force against a U.S. citizen must get special permission. . . .
He also said there are criteria that must be met to authorize the killing of a U.S. citizen that include “whether that American is involved in a group that is trying to attack us, whether that American is a threat to other Americans. Those are the factors involved.”
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Although Blair emphasized that it requires “special permission” before an American citizen can be placed on the assassination list, consider from whom that “permission” is obtained: the President, or someone else under his authority within the Executive Branch. There are no outside checks or limits at all on how these “factors” are weighed. In last week’s post, I wrote about all the reasons why it’s so dangerous — as well as both legally and Consitutionally dubious — to allow the President to kill American citizens not on an active battlefield during combat, but while they are sleeping, sitting with their families in their home, walking on the street, etc. That’s basically giving the President the power to impose death sentences on his own citizens without any charges or trial. Who could possibly support that?
But even if you’re someone who does want the President to have the power to order American citizens killed without a trial by decreeing that they are Terrorists (and it’s worth remembering that if you advocate that power, it’s going to be vested in all Presidents, not just the ones who are as Nice, Good, Kind-Hearted and Trustworthy as Barack Obama), shouldn’t there at least be some judicial approval required? Do we really want the President to be able to make this decision unilaterally and without outside checks? Remember when many Democrats were horrified (or at least when they purported to be) at the idea that Bush was merely eavesdropping on American citizens without judicial approval? Shouldn’t we be at least as concerned about the President’s being able to assassinate Americans without judicial oversight? That seems much more Draconian to me.
It would be perverse in the extreme, but wouldn’t it be preferable to at least require the President to demonstrate to a court that probable cause exists to warrant the assassination of an American citizen before the President should be allowed to order it? That would basically mean that courts would issue “assassination warrants” or “murder warrants” — a repugnant idea given that they’re tantamount to imposing the death sentence without a trial — but isn’t that minimal safeguard preferable to allowing the President unchecked authority to do it on his own, the very power he has now claimed for himself? And if the Fifth Amendment’s explicit guarantee — that one shall not be deprived of life without due process — does not prohibit the U.S. Government from assassinating you without any process, what exactly does it prohibit? Noting Scott Brown’s campaign to deny accused Terrorists access to lawyers and a real trial, Adam Serwer wrote:
This is the new normal for Republicans: You can be denied rights not through due process of law but merely based on the nature of the crime you are suspected of committing.
That’s absolutely true, but that also perfectly describes this assassination program — as well as a whole host of other now-Democratic policies, from indefinite detention to denial of civilian trials.
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Schmookler commentary:
The idea that the government can carry out an assassination against an American citizen is troubling on the face of it. But there are some issues here that make this, to my mind, a potentially justifiable practice.
First point: There are some kinds of struggle –one might say, some kinds of war– that are not on battlefields. Consider our ongoing conflict with al-Qaeda. I, for one, support the idea that when agents of al-Qaeda are located, and are not so situated that their arrest is possible, it is as acceptable to kill them where they are found as it is to kill the enemy on the battlefield in conventional conflicts.
I realize that there are also difficulties with this policy –how many innocents is it acceptable to put in danger to get what kinds of adversaries?– but in principle I support the idea that, in conflicts like this, the battle must be fought differently, and that, in some circumstances, things like drone attacks are a legitimate means of waging it.
But then there is the matter of targets that are American citizens.
If these lethal attacks were directed against American citizens on American soil, I’d unreservedly oppose them. At first I didn’t notice that this policy is just for instances where American citizens are abroad –and contributing to efforts to attack the United States– and my not noticing that limitation was part of my initial response being so negative.
But if one were to agree that X is a person who is engaged in terrorist warfare against the U.S., and if one were to agree that targeting that person would be appropriate under the existing circumstances if X were NOT an American citizen, is there any reason why X’s being an American citizen should weigh decisively against that judgment of appropriateness? Not so far as I can see.
So, I can imagine that such strikes are sometimes called for, and in such circumstances it seems to me that the citizenship of the proposed target is not a crucial variable.
One thing that I’m unwavering on: the process by which anyone can be targeted in this way has to be complete with strong safeguards. If the fourth amendment requires a judge to grant a warrant for a search to be conducted, a killing should require no less (and possibly more).
February 9th, 2010 at 10:44 am
Ethel Rosenburg was executed by judicial decree, for helping her husband . She was innocent, as might a so-called american terrorist, who is declared guilty for being in the area. Don`t make the mistake of killing the innocent while attempting to protect your safety. Stalin made the same mistake!
February 9th, 2010 at 10:53 am
What are you talking about, James, when you speak here of “judicial decree”? The Rosenbergs were tried in a court of law. Whether or not justice was done, that’s certainly a completely different situation from the one being considered here, where –as in a war– there’s no “due process” (at least as understood in the concept of a “fair trial,” with the ability to challenge one’s accusers, etc.) or “presumption of innocence.”
February 9th, 2010 at 12:39 pm
American policy is either insane or diabolically Satanic. This is the world to come without the benevolent restraints of the godly.
In the Bible it is plainly disclosed that the god of this world is Satan. Of course the Bible must be myth and error, right ?!
Funny thing I notice though, the further society turns from its precepts the more dishonest and criminal its policies and culture.
Interesting ! Actually more than interesting; I’d say highly instructive !
February 9th, 2010 at 12:51 pm
I’d like it, David R., if you would address the argument more substantively, not so thoroughly with fraught words of a general sort.
For exmaple, looking at my part in the above, I make three points. If you disagree with any of them, please indicate the basis of your disagreement.
1) SOME forms of “warfare” in today’s world call for a nation such as ours to attack enemies not on a battlefield but where they can be found.
2) In those situations where such action is justified, the question of whether such an enemy is an American citizen or not is not really relevant, any more than if an American citizen were fighting in an enemy army on some recognized battlefield.
3) The dangers of such a practice, however, are so real and acute that the greatest safeguards should be created to assure that any such attack on any particular target, in any particular location, is justifiable.
Is any of these positions insane or diabolically Satanic?
February 9th, 2010 at 12:54 pm
The basic premise is wrong. So !
February 9th, 2010 at 1:02 pm
What exactly do you regard as that “basic premise” that’s wrong?
February 9th, 2010 at 3:50 pm
David R, ignore my foolish ideas and check 1 Samuel 15:3. But I`m still against killing one another. Andy`s not against it; america is not murdering people are they?
February 9th, 2010 at 4:29 pm
I am not a fan of killing. But I am not a pacifist. Are you?
In some situations, nations –like individuals– need to defend themselves. Had I been British in 1940, I’d have gladly done what I could to win the Battle of Britain. And with al Qaeda, a war is being waged by them against the United States (and other Western nations), and I see no moral imperative for that war to be only one-way.
Just as I think Obama should fight –in a non-violent way– against those who are ruthlessly seeking to make him fail, so do I think that the nations of the West should fight –in the ways that are required by such “asymmetrical” war– against those who would blow up subways in London and Madrid and clubs in Bali and American embassies in Africa, etc.
February 9th, 2010 at 7:22 pm
Bard wrote:
I think that the nations of the West should fight –in the ways that are required by such “asymmetrical” war– against those who would blow up subways in London and Madrid and clubs in Bali and American embassies in Africa, etc.
Apparently I’m not as sanguine as you that we have been told the truth about many if not most so-called terrorist acts, what Webster Tarpley refers to as “synthetic terror”. We ought to keep in mind that al Qaeda began(continues?) its life as a CIA asset. So what is it now if not a blanket justification for targeting anyone we choose in the Middle East? As such it serves the purposes of Western power, a bit too conveniently for my diminished credulity. Now you would permit its use with what you consider suitable safeguards in this country? Very dangerous, Andy.
February 9th, 2010 at 7:27 pm
I misspoke. By “its” I meant targeted assassinations.
February 9th, 2010 at 7:54 pm
That al-Qaeda grew out of the Western supported resistance to the SOviet occupation of Afghanistan hardly provides a basis for imagining that al-Qaeda is now part of some CIA plot. (See BLOWBACK.)
It’s all well and good to be skeptical about official pronouncements, but one’s conspiracy theories should have at least a ring of plausibility. Do you think that the Madrid and London bombings were somehow phony or put-up jobs? The emergence of jihadist movements –of an anti-Western nature– around the Islamic world seems a reality pretty inescapable for us to acknowledge. Not everything that happens in the world is run from secret places in Washington.
February 9th, 2010 at 7:57 pm
In this country? I’m sorry, do I understand you to be talking about targeted assassinations being conducted against people who are present within the U.S. borders? I was quite explicit that this was not what the idea is about. Note from above, in this piece itself:
February 9th, 2010 at 9:32 pm
Andy wrote:
do I understand you to be talking about targeted assassinations being conducted against people who are present within the U.S. borders? I was quite explicit that this was not what the idea is about. Note from above, in this piece itself:
Yes, I missed that, Andy, sorry, and I’m relieved you would not condone this practice on American soil. However, assassinating Americans abroad doesn’t seem much different to me, in principle.
On your other point, yes, I do believe many of the bombings were false flag operations, and I include 9-11 in that category as well. A great deal of evidence contrary to official accounts can be found if one wants to look.
But, nor do I discount some terrorist acts directed against America are blowback from our state-sponsored actions in Afghanistan and Iraq, which killed mostly non-combatant civilians, and because we supported Israel’s collective punishment of the citizens of Lebanon and Gaza. That real terror, as opposed the synthetic variety, would be directed against America under these circumstances is readily understandable, in essence a self-fulfilling prophesy. Is it really too cynical to suggest that the real conspiracy is using the bogeyman of terror to impose Western-style capitalism, a.k.a., “democracy”, on the Middle East?
February 9th, 2010 at 10:19 pm
I would agree with you, Dan, that there would be no justification for such actions against supposed “terrorists” if the whole thing were based upon lies. So our disagreement on that score would not be at the level of principle, but at the level of interpretation of events, and whether the premises for the “self-defense” were based on lies. I believe the situation between the U.S. and al-Qaeda is pretty much what is generally said, and you are far more skeptical about the honesty of that portrayal.
You make another statement, though, which bears more directly on the matter of the principle:
I do see a difference. As far as I am concerned, if there’s a terrorist on American soil and the authorities know where he is, he should be arrested and charged– WHETHER HE’S AN AMERICAN OR OF FOREIGN NATIONALITY. Likewise, if there’s a terrorist in a foreign country who constitutes a genuine threat to this country (criteria to be determined), and if the country in which he is located is one in which (for whatever reason) it is not practical or possible to apprehend him by the local police or army, or other means, and the choices are either to leave him alone or to strike a blow (like the drones), as I’ve said earlier, it does not seem to me that it should matter WHETHER HE IS AN AMERICAN OR OF FOREIGN NATIONALITY.
In other words, what difference does it make whether the fellow –who is within reach of being attacked but not within reach of being arrested– is an American citizen making war on the U.S. or a foreign national making war on the U.S.?
February 10th, 2010 at 8:46 am
Andy wrote:
what difference does it make whether the fellow –who is within reach of being attacked but not within reach of being arrested– is an American citizen making war on the U.S. or a foreign national making war on the U.S.?
If he is truly an enemy combatant, then he could be killed as an act of war, though the status of undeclared war is dubious. Otherwise he retains his constitutional rights when abroad, I believe. It all hinges on how the government defines enemy combatant in principle and practice. Personally, I don’t trust the government not to target political dissidents by defining them as terrorists, so I’m not for these extra-judicial killings. Even if justified in principle, there is too much opportunity for abuse in practice.
February 10th, 2010 at 12:08 pm
Any such program, if it could be considered moral at all, would have to require a high degree of certainty as to the identification of the target, and as to his culpability. Our government does not have a good track record in this regard.
Remember when the first detainees were brought to Guantanamo? We were told that these were not just terrorists, they were the worst of the worst. Presumably the sort of folks who might be expected to qualify for an assassination program. But according to what I’ve read, it now appears that most of them had never committed any terrorist act against the US.
And what about all those drone strikes that kill innocent civilians, and often don’t even get the presumed bad guy?
I’m not sure that it should make a big difference whether or not the target is an American citizen. Either way, it doesn’t sound like something I trust any president (or perhaps any government) to do.
February 10th, 2010 at 1:03 pm
The waging of war is ALWAYS a tricky business, fraught with great uncertainty about who, if anyone, can be trusted to wage it.
THis situation –warring against an enemy that strikes through terrorism, and that’s hidden in places around the world– is indeed fraught with difficulties. I’m not sure that the difficulties in the moral realm are any greater than those posed by a conventional war like WW II. Even setting aside the use of atomic weapons, ALL the bombing runs against industrial targets raised issues. There were the fires of Tokyo, etc.
My point is that a nation like the U.S. has to have SOME way of fighting real enemies, even of this asymmetrical type, and this seems to be the main one available in some circumstances. It doesn’t make sense to wait until this enemy somehow shows up on the Madrid or London subway, or on some American airplane, does it?
February 10th, 2010 at 4:39 pm
Andy wrote:
My point is that a nation like the U.S. has to have SOME way of fighting real enemies, even of this asymmetrical type, and this seems to be the main one available in some circumstances.
Why do we have real enemies? In my opinion America has brought terrorism unto itself by its actions and in some instances used fake terror to gain support for unending war against “the other”. Terrorism does not arise in a vacuum. There are antecedent causes.
February 10th, 2010 at 7:12 pm
Maybe if the US military and CIA would stay out of their part of the the world, they wouldn’t be so inclined to attack the US.
February 10th, 2010 at 9:54 pm
Jim C,
Of course !
I was thinking of Lincoln’s words
“a Nation so conceived and so dedicated . . ” should allow itself to be dragged down both economically and morally though the mud by a bunch of international ‘hoodlums’ is a crying shame.