Tuesday, October 4, 2011

More American lawlessness in the “War on Terror”

The government is targeting an American citizen for death without any legal process whatsoever, while at the same time impeding lawyers from challenging that death sentence and the government's sweeping claim of authority to issue it.
— Anthony Romero, Executive Director, American Civil Liberties Union
The quote is not from news about the CIA’s assassination, on the order Barack Obama, of Anwar al-Awlaki. It comes from a report, two months earlier, that the ACLU and the Center for Constitutional Rights were suing for a license to represent al-Awlaki’s father in legal action that might have forced the CIA to “articulate the legal standard under which the government can target Americans for killing without trial, charge, or conviction.”

So it takes a license to provide legal representation in a matter of life and death? After attorneys traveled to Yemen to speak with his father, the Office of Foreign Assets Control happened to get around to making al-Awlaki a “specially designated global terrorist.” This blocked rights organizations from acting in his interest, on behalf of his father, within the judicial branch of the government, unless the executive branch approved of it. Separation of powers is just one of various principles of constitutional law that a roughshod post-9/11 Congress trampled.

Now al-Awlaki is dead (as are several of his associates — when the opportunity to let loose with Hellfire presents itself, the “kill or capture” list grows pragmatically). The CIA apparently will not have to articulate a legal standard. Obama is fortunate in this, not because he’s likely to target more Americans, but because he won’t have to step onto the slippery slope that leads to the question of what standard applies to non-Americans.

I recently heard an audio montage in which senior U.S. officials said of the Predator assassinations, “We’re in a war.” Let’s recall that the government was perfectly clear that Osama bin Laden was a criminal, not a combatant in a literal war, when it obtained from a federal grand jury a 238-count indictment against him. The only thing that distinguished the 9/11 strike, 34 months later, from his previous crimes was that it actually succeeded in terrorizing America. And when the country with the biggest stick on the planet sees itself as impotent to bring to justice legally those who made it piss its collective pants, you can count on fancy rationalization of an illegal response.

Following 9/11, Secretary of Defense Donald Rumsfeld immediately raised the question of whether Saddam Hussein was involved. Then a neoconservative cabal, including Rumsfeld, Vice President Dick Cheney, and Under­secretary of Defense Paul Wolfowitz, opportunistically elaborated a doctrine of attacking nations that sanction terrorist activity, and trumped up a case that Iraq was one of them. The U.S. then warred against two sovereign states with predominantly Islamic populaces, and replaced their governments, in fine neocon form, with non-Islamic democracies. (According to Wolfowitz, the Bush administration knew that overthrowing the government of Iraq violated international law, but believed that it hewed to a higher moral principle.*) To say by extension that the U.S. is warring against transnational crime is absurd.

Due process is of paramount importance in law enforcement. It is how we retain our humanity while dealing with savages. The United States is excusing utterly lawless responses to criminal suspects on foreign soil merely by claiming that they are acts of war. I’d say that the Predator operator amounts to a 21st-Century Rooster Cogburn, tracking suspects in the “Indian Territory,” and blasting them and their associates to smithereens — always in self-defense, or when they are fleeing justice. But Marshall Cogburn worked on behalf of Judge Isaac Parker, and no judicial entity has a role in the Predator assassinations.

* I had huge problems with the moral calculus of the Bush administration prior to the invasion of Iraq. But I had no idea how high a price Iraqis would pay. According to the Iraq Body Count Project, the number of documented deaths of non­combatants in acts of violence during the Iraq War is 103-112 thousand. Precious few Americans know that 26 non­combatants have died violently for each American combatant who has died in Iraq. I don’t know the death toll for the Libyan revolution. But the loss of life in the Arab Spring uprisings generally has been very small in comparison to that which the U.S. precipitated in Iraq.

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