Is there any reason to believe that military drones will soon be hovering over Manhattan, aiming to kill Americans believed to be involved in terrorist financing? No.
But is it well past time for the United States government to specify, precisely, its views on whom it thinks it can kill in the struggle against Al Qaeda and other terrorist forces? The answer is yes.
The Obama administration’s continued refusal to do so should alarm any American concerned about the constitutional right of our citizens — no matter what evil they may or may not be engaged in — to due process under the law.
— Ryan Goodman, professor of law and co-chairman of the Center for Human Rights and Global Justice at New York University.
Rand Paul has called out at least two of the Senate neocons: John McCain and Lindsey Graham:
“They think the whole world is a battlefield, including America, and that the laws of war should apply,” Paul said in an interview on Fox News about McCain and Graham, who had described Paul’s comments about drones as “ridiculous.”
“The laws of war don’t involve due process, so when they ask you for an attorney you tell them to shut up. That’s not my understanding of the way America works,” Paul told Fox. “I don’t think the laws of war apply to America, I think the Bill of Rights do and I think it’s a disservice to our soldiers that our senators up there arguing that the Bill of Rights aren’t important.”
The new amendment comes on the heels of numerous other proposed changes to U.S. law, including a highly contested bill that would protect the right of Americans to ignore a widespread, deadly problem until it is far too late.
The Government has already exercised this broad, unimpeded discretionary power [to restrict access of counsel]; it informed petitioners’ counsel that ‘it anticipates limiting the number of attorneys who may have continued access to a detainee under the [Memorandum of Understanding] MOU to two and one translator… A document so one-sided that it gives one party the power to unilaterally modify its provisions renders any rights provided by such a document meaningless and illusory…
The Government wants to place itself as the sole arbiter of when a habeas petitioner is ‘seeking’ to challenge their own detention and when a habeas case is ‘impending,’ and thus when they can have access to counsel. But access to the Court means nothing without access to counsel. The MOU actually gives the Government final, unreviewable power to delay, hinder, or prevent access to the courts. Moreover, the Government actions thus far demonstrate that it cannot be trusted with such power.
— Judge Royce Lamberth, striking down the Obama Administration’s scheme to restrict access to counsel for prisoners at Guantánamo through a “memorandum of understanding” which habeas lawyers were being coerced to sign.
For civil libertarians, the legacy of bin Laden is most troubling because it shows how the greatest injuries from terror are often self-inflicted. Bin Laden’s twisted notion of success was not the bringing down of two buildings in New York or the partial destruction of the Pentagon. It was how the response to those attacks by the United States resulted in our abandonment of core principles and values in the “war on terror.” Many of the most lasting impacts of this ill-defined war were felt domestically, not internationally.
Starting with George W. Bush, the 9/11 attacks were used to justify the creation of a massive counterterrorism system with growing personnel and budgets designed to find terrorists in the heartland. Laws were rewritten to prevent citizens from challenging searches and expanding surveillance of citizens. Leaders from both parties acquiesced as the Bush administration launched programs of warrantless surveillance, sweeping arrests of Muslim citizens and the creation of a torture program.
What has been most chilling is that the elimination of Saddam and now bin Laden has little impact on this system, which seems to continue like a perpetual motion machine of surveillance and searches. While President Dwight D. Eisenhower once warned Americans of the power of the military-industrial complex, we now have a counterterrorism system that employs tens of thousands, spends tens of billions of dollars each year and is increasingly unchecked in its operations.
We have also fundamentally altered who we are. A partial, off-the-top-of-my-head list of how we’ve changed since September 11 . . .
We’ve sent terrorist suspects to “black sites” to be detained without trial and tortured.
We’ve turned terrorist suspects over to other regimes, knowing that they’d be tortured.
In those cases when our government later learned it got the wrong guy, federal officials not only refused to apologize or compensate him, they went to court to argue he should be barred from using our courts to seek justice, and that the details of his abduction, torture, and detainment should be kept secret.
We’ve abducted and imprisoned dozens, perhaps hundreds of men in Guantanamo who turned out to have been innocent. Again, the government felt no obligation to do right by them.
The government launched a multimillion dollar ad campaign implying that people who smoke marijuana are complicit in the murder of nearly 3,000 of their fellow citizens.
The government illegally spied and eavesdropped on thousands of American citizens.
Presidents from both of the two major political parties have claimed the power to detain suspected terrorists and hold them indefinitely without trial, based solely on the president’s designation of them as an “enemy combatant,” essentially making the president prosecutor, judge, and jury. (I’d also argue that the treatment of someone like Bradley Manning wouldn’t have been tolerated before September 11.)
If you don’t believe me, just listen to Senator Grassley question Elena Kagan yesterday. It seems that the second amendment more or less reflects God’s law. Surprising, in that firearms aren’t prominently featured in the Bible.
I cannot imagine anything more tedious than sitting for days listening to a group of Senatorial blowhards pontificate in the form of questions.
The Constitutional limitations on the Executive branch continue to be ignored, despite President Obama’s promised of change. Gary Wills, writing in the New York Review of Books catalogs the continued damage to the Constitution. The entire essay is worth a read.
George W. Bush left the White House unpopular and disgraced. His successor promised change, and it was clear where change was needed. Illegal acts should cease—torture and indefinite detention, denial of habeas corpus and legal representation, unilateral canceling of treaties, defiance of Congress and the Constitution, nullification of laws by signing statements. Powers attributed to the president by the theory of the unitary executive should not be exercised. Judges who are willing to give the president any power he asks for should not be confirmed.
But the momentum of accumulating powers in the executive is not easily reversed, checked, or even slowed. It was not created by the Bush administration. The whole history of America since World War II caused an inertial transfer of power toward the executive branch. The monopoly on use of nuclear weaponry, the cult of the commander in chief, the worldwide network of military bases to maintain nuclear alert and supremacy, the secret intelligence agencies, the entire national security state, the classification and clearance systems, the expansion of state secrets, the withholding of evidence and information, the permanent emergency that has melded World War II with the cold war and the cold war with the “war on terror”—all these make a vast and intricate structure that may not yield to effort at dismantling it. Sixty-eight straight years of war emergency powers (1941–2009) have made the abnormal normal, and constitutional diminishment the settled order.
“The duty of the Justice Department is to defend statutes that have been passed by Congress,” Holder told Sen. Orin Hatch (R-Utah), who asked whether the Obama administration would continue the legal fight to uphold the legislation that the Electronic Frontier Foundation is seeking to overturn.
“Unless there are compelling reasons, I don’t think we would reverse course,” Holder added.