by Truthout on Creative Commons at Flickr
Judges use a legal expression when they decide to prevent the potential evisceration of a fundamental rule of law by exception. In denying an argument to recognize such a proposed exception, they point out that, if they were to accept it, the exception would “swallow the rule.”
Our fundamental constitutional right to due process of law is in danger of being swallowed up by the Obama Administration’s policies of assassinating and indefinitely detaining United States citizens, no matter where they may be located, without due process of law, if the president decides that the citizen is a terrorist, supports terrorism, or is a member of al-Qaeda, an affiliate of al-Qaeda, or an associated force.
For example, in a recent federal case in which Anwar al-Awlaki’s father sued President Obama, Secretary of Defense Gates, and CIA Director Leon Panetta seeking to prevent them from assassinating his son without due process of law, the Department of Justice persuaded the judge to dismiss the case because, nothwithstanding the Due Process Clause of the Fifth and Fourteenth Amendments that explicitly prohibit the government from depriving a person of “life, liberty, or property without due process of law,” the judicial branch of government has no constitutional authority to question or review decisions by the president as Commander in Chief of the Armed Forces to assassinate U.S. citizens on his say so anywhere in the world at any time pursuant to the Authorization to Use Military Force (AUMF), passed by Congress in response to 9/11, and the president’s authority under Article 2 of the United States Constitution.
Anwar al-Awlaki and Samir Khan, both U.S. citizens, were subsequently assassinated in Yemen last September by Hellfire missiles fired from a U.S. drone. Mr. al-Awlaki’s 16-year-old son, Abdulrahman, was assassinated by drone two weeks later.
As Glenn Greenwald points out today, the Obama Administration hypocritically uses the CIA drone assassination program to publicly congratulate itself on removing targeted individuals like al-Awlaki “from the field” without due process of law while at the same it refuses to admit or deny that it has a list of targeted individuals and a drone assassination program. With the exception of Mr. al-Awlaki, whose name was confidentially disclosed to journalist Dana Priest as a person targeted for assassination, we do not know whether the president has targeted anyone else and, assuming that he has, we do not know if such person or persons have been assassinated. We also do not know what criteria the president uses to decide whether to put someone on the list. For all we know, any one of us already could be on the list or at risk to be added to it. Since we do not know whether we are on the list and we cannot find out if we are, we cannot challenge the president’s decision to add us to the list, assuming for the sake of argument that he did. We, by which I include every U.S. citizen no matter where situated in the world, are left with no choice except to trust the president to never make a mistake and never succumb to the temptation to use the assassination program for political purposes.
In the mistake department, one need only consider the relatively frequent stories that pop up about innocent people, including young children, whose names inexplicably are added to the No-Fly List maintained by the Department of Homeland Security. I will not go into the category of assassinations for political purposes as it remains a raw and bleeding wound of grief and endless suspicion and speculation by many people. Think, for example of John F. Kennedy, Robert Kennedy, the Reverend Martin Luther King, Jr., Dr. Bruce Ivins and others too numerous to mention. The point is that many unscrupulous people of wealth and privilege covet the power of the presidency. We already know that this president is for sale and we cannot trust him. The question is whether, assuming you openly oppose him, you are willing to trust him not to target you for assassination. And if you trust him not to do so, would you also trust a Newt Gingrich, a Sarah Palin, or someone like them not to do so, if they should be elected president?
The answer to that question should be self-evident.
Consider these words written by Justice Black of the United States Supreme Court in Reid v. Covert, 354 U. S. 1, 10 (1956):
Trial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness. These elemental procedural safeguards were embedded in our Constitution to secure their inviolateness and sanctity against the passing demands of expediency or convenience.
This is not the first president and certainly will not be the last to seek to detain people indefinitely and/or target them for assassination without due process of law in the name of keeping us safe. Whether in good faith or in bad faith for political purposes in the pursuit of power, I feel much safer if his decisions and actions are constrained by the Due Process Clause and the right to habeas corpus.