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February 15th, 2010
Freethought San Marcos: The loss of another Constitutional “right” — the right to life

Freethought San Marcos: A column

In his last HBO special, the late comedian George Carlin opined that we don’t have rights, only temporary privileges. Events of this past decade suggest that Carlin was correct.

In 1976, an executive order was issued outlawing foreign assassinations. The order says, ”No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”

In the 1980s, a secret Presidential order signed by Ronald Reagan authorized the overthrow of Col. Muammar el-Qaddafi of Libya. In response to that order, the United States bombed the Libyan leader’s headquarters in 1986, killing his daughter. Some people in the intelligence community believe that the 1988 bombing of Pan Am 103 over Scotland, which killed 270 people, was Qaddafi’s revenge for the bombing that killed his daughter.

In the 1990s, there were terrorist attacks on US embassies in Africa by the group that became known as al Queda. In 1996, a law passed by Congress and signed by President Clinton was used to justify cruise missile attacks on Afghanistan (where al Queda was based) and Sudan. The law says, ”The President should use all necessary means, including covert action and military force, to disrupt, dismantle and destroy international infrastructures used by international terrorists.” It was assumed that the order authorized killing the people who organized and maintained the infrastructures.

After the 1996 law, President Clinton signed a secret order authorizing the use of lethal force against Osama bin Laden’s organization because it was believed to be responsible for numerous attacks against US interests and installations.

When the terrorism of September 11, 2001, occurred, President George W. Bush took previous presidential orders about overseas operations to another level. Dana Priest reported recently in The Washington Post that “Bush gave the CIA, later the military, authority to kill U.S. citizens abroad if strong evidence existed that an American was involved in organizing or carrying out terrorist actions against the United States or U.S. interests….”

Priest reported that, according to her sources in the current administration, “The Obama administration has adopted the same stance.” Obama’s view appears to be that if the government believes that a U.S. citizen has joined al-Queda, that citizen is just another target for assassination. Priest was able to identify four U.S. citizens who are on the “High Value Targets” or “High Value Individuals” lists maintained by the CIA and the Joint Special Operations Command (JSOC). Constitutional blogger Glenn Greenwald wrote about Priest’s revelation, “Just think about this for a minute. Barack Obama, like George Bush before him, has claimed the authority to order American citizens murdered based solely on the unverified, uncharged, unchecked claim that they are associated with Terrorism and pose ‘a continuing and imminent threat to U.S. persons and interests.’ They’re entitled to no charges, no trial, no ability to contest the accusations.”

Greenwald points out that in the so-called “war on terror,” the battlefield is the entire world: “So the President claims the power to order U.S. citizens killed anywhere in the world, while engaged even in the most benign activities carried out far away from any actual battlefield, based solely on his say-so and with no judicial oversight or other checks.” Nowhere in the Constitution is such a power conferred on the President or any official.

It is unimaginable to me that even the most authoritarian among us would give such unrestrained discretion over life itself to the President. Ample recent evidence shows that government accusations or strong beliefs are not proven fact. Hundreds of people detained for years at Guantanamo, accused of being terrorists, have been released because there is insufficient evidence that they have committed terrorist acts, or because there is no evidence of such acts.

Since 2008, when the Supreme Court granted habeas corpus review to Guantanamo detainees, 33 out of 39 cases brought before the courts resulted in the release of the detainees on grounds that there was no evidence to support holding them for terrorist acts. Some people held at Guantanamo were there because they were turned over to the U.S. by Afghanis or Pakistanis to get cash rewards. They were wholly innocent of any wrongdoing.

In 2002, the Canadian citizen Maher Arar, a telecommunications engineer with dual Syrian and Canadian citizenship, who lives in Canada, was rendered by the United States government to Syria, where he was tortured for almost a year before his release to Canada. He had traveled through JFK International Airport in September 2002 on his way home to Canada after a family vacation in Tunis when he was taken into U.S. custody and rendered. A commission of inquiry in Canada exonerated him of any terrorist ties and the Canadian government paid him $10.5 million for its role in failing to protect him as a Canadian citizen. The Syrian government, too, reported that Arar had no links to terrorism. Nevertheless, Arar remains on a U.S. terrorist watch list.

Last week, Ohio Congressman Dennis Kucinich wrote a letter to Attorney General Eric Holder asking him for an explanation of the Obama administration’s legal justification for the extrajudicial killing of U.S. Citizens. In a recent interview, Kucinich explained, “I think it’s incumbent upon the Attorney General to explain the basis in law for such a policy. Our Constitution’s Fifth Amendment, our Seventh Amendment, our Fourteenth Amendment all clearly provide legal protections for people who are accused or who would be sentenced after having been judged to be guilty. And what’s happened is that the Constitution is being vitiated here. The idea that people … legally have due process of law, is thrown out the window.”

“[W]hen you consider that there are people who are claiming there are many terrorist cells in the United States, it doesn’t take too much of a stretch to imagine that this policy could easily be transferred to citizens in this country. That … only compounds what I think is a slow and steady detachment from core constitutional principles. And once that happens, we have a country then that loses its memory and its soul, with respect to being disconnected from those core constitutional principles which are the basis of freedom in our society.”

Kucinich continued, “Congress has the authority, under a joint resolution, to challenge any presidential directive. It’s not widely known, … but there are at least three states of national emergency that we’re operating under right now by presidential declaration: one relating to 9/11, another one relating to the war on terror, and a third one relating to Iran. … I take an oath to defend the Constitution. And when I see in the Fifth Amendment where it says that no one should be deprived of life, liberty or property without due process of law, I want to know what’s the constitutional basis for suspending this provision for anyone, even for a moment, because if this [amendment] can be set aside, then we are on a slippery slope to anti-democracy.”

“[T]he reason why this is important for the Attorney General to reflect upon is that the President and all federal officials take an oath to defend that Constitution.” Kucinich went on to say that if “the authorization for the use of military force passed after 9/11 is the basis for this action,” the administration should have to explain why this is so. That authorization applied only to those who were involved in 9/11, not to someone who joins a terrorist organization later, “no matter how misguided or wrongheaded that that may be.”

Kucinich went on to raise the obvious constitutional questions that should be asked: “[W]hat about the right to be able to be told of the charges against you? What about the right to a trial? What about the right to be able to … be [confronted] by your accusers?” He concluded by saying, “This is… a dangerous moment. … I see it as a constitutional crisis. And Congress has to start stepping up to review these actions without regard to whether it’s a Democrat or Republican administration.”

Glenn Greenwald explained the recent history of government assassinations: “[A]ssassinations have a very long and sordid history in the United States, and the reason is, is that the CIA has used assassinations as a major weapon in its arsenal, so much so that they’ve assassinated people who ended up being wrongly killed, who ended up causing great controversy because it’s extrajudicial killings. And even Ronald Reagan, who engaged in all sorts of extreme policies in Central America waging covert war, declared political assassinations, assassinations of political leaders, to be illegal. Now that applies only to political assassinations, not necessarily to assassinations of people accused of terrorism, but the principle is the same, that these kinds of extrajudicial killings, which we condemn when virtually every other country does [them], was so extreme, so contrary to our values, that even Ronald Reagan issued an executive order banning it.”

With respect to government terrorism generally, Jeffrey Smith, a former general counsel at the Central Intelligence Agency said, “To begin to behave like terrorists undermines our role as a leader in respect for the rule of law and respect for human rights.” We could now add that acting like terrorists also undermines, dishonors, and violates the United States Constitution, as well. Unless, of course, Eric Holder can explain why killing Americans without due process of law is harmonious with our Constitution.

© Freethought San Marcos, Lamar W. Hankins

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13 thoughts on “Freethought San Marcos: The loss of another Constitutional “right” — the right to life

  1. Once again, Lamar reveals himself to be a “Selective Constitutionalist”. As a liberal progressive, his moaning about unconstitutional actions taken by the government reeks of hypocrisy. His entire philosophy of progressivism is rooting in a disdain for the US Constitution.

    What’s more disgusting is the fact that he is a lawyer, and thus has been thoroughly educated on the limitations placed on our federal government BY the US Constitution. Yet, he champions a role for our federal government in direct violation OF the US Constitution. See a pattern here, folks? And it’s not just progressive liberals; the right has their own progressives.

    Stand up people! Read the US Constitution. And get ready because the tree of liberty is thirsty.

  2. I’m not sure what Yosef is upset about. I was dealing in this article with one constitutional right: the right to due process of law. Far from championing the role of the government in depriving us of this right, I was condemning the government. I’ll try to be clearer next time.

  3. Abandoning targeted killing risks further loss of American life, because we are fighting an enemy without borders and the enemy observes no rules. Honor and principle in war always seems to give way to changes in the enemy (we do not simply line up on battlefields and walk at each other anymore).

    However, I agree with Lamar in so far as the Obama administration needs to come out with a clear policy and defend it publicly. This is a conversation we need to have as a Country. Is self-defense against attack justification for a drone attack against anyone (including an American)? Who gets to say when an attack is forthcoming and thus justifies action? Without coming out and answering these questions and providing clear justification, this administration subjects the CIA and military members carrying out the targeted attacks to potential prosecution in international court. Self-defense may be a broad enough umbrella, but we can’t answer the question without a conversation.

    Lamar doesn’t seem to want a conversation, he seems to want to pronounce it unconstitutional — I am not so sure after reading Hamdan.

  4. John — What I would like is a coherent explanation of the constitutional basis for such a policy. I can’t imagine that there is one, but I’m open to listening. If that process can involve a conversation, I am certainly willing to participate, but the government now has to offer its justification. You can’t often have a conversation with yourself that is very productive.

  5. Let God sort them out. They are on the battlefield and need to be eliminated. I would rather deny someone their due process when they are apparently working in coordination with known terrorists than follow some pansy liberal’s call for due process. Stupidity like that will result in more innocent people being killed by these terrorist.

  6. Jesse:

    I’m glad to see that you know your Catholic Church history. Others can check out the origin of your ancient sentiments at

  7. The President may “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks … in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Authorization for Use of Military Force (AUMF), 115 Stat. 224, note following 50 U. S. C. §1541 (2000 ed., Supp. III).

    Due process does not apply because the clause has a specific carve out: “except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger[.]”

    I don’t mean to suggest predator drone killings are justified, but they are an Executive action under Congressional authorization that is not stopped by the Constitution. Instead of lecturing Obama, maybe Kucinich should end the authorization or make it more narrow.

  8. My father fought fascism in WWII, as did several of his brothers / brother-in-laws, cousins, and so many others of his generation. One principle I learned growing up was when you become just like your enemy in order to fight your enemy then you are no better than those you are fighting.

    The truth behind so much of the fighting over the last decades is about establishing a new paradigm. Should it be soldiers dying for corporate profit, extremists dying for what they perceive as divinity, or for the innocent and not-so-innocent to die because they happened to be in the wrong place and wrong time?

    In once case a U.S. citizen takes up arms against the U.S. then in that instance they are guilty of insurrection and / treason which removes many legal protections. On the other hand in a case of the overthrow of the U.S. Constitution a U.S. citizen taking up arms to restore said Constitution is defending same against “enemies foreign and domestic”.

    The U.S. military has often been sent into foreign lands in order to promote corporate interests. One former U.S.M.C. General after many such occurrences refused to lead a corporate sponsored insurrection against the then sitting President.

    Unless the citizen involved is actually holding a weapon and firing upon U.S. or Allied forces then then the Constitutional protections afforded a U.S. citizen should apply.

    If this is so hard to understand then I’m afraid the Constitution is already a document voided by special interest and those who serve same.

  9. John – However, all of the authorization quoted in your first paragraph does not include American citizens who are believed to be involved with new organizations or those related to al Queda since the 9/11 attacks, but who were not involved with the 9/11 attacks. I don’t understand the context or the substance of your second paragraph. If the drone killings are aimed at US citizens, the Constitutional due process rights of an American citizen cannot be trumped by any Congressional action, if the Constitution is the supreme law of the land.

  10. Lamar, I gave you too much of a skeleton there. Instead of “that is not stopped by the Constitution” read “does do not run afoul of the Constitution.”

  11. Geez, Lamar. Your absolutely pathetic at your research.

    Readers, here’s what Lamar does. He took my quote “Let God sort them out”, typed it into Google. And BAM! He linked to the VERY FIRST hit in Google. Seriously, give it a try.

    Lamar. I have seen this as a pattern for you. Almost all of your “research” comes directly from a Google search. And you don’t even dig very deep. Try reading a book. I hear they have lots of information in them…probably a little more quality and factual than some random Google hit.

    Here’s the funny part. You are more than likely so illiterate to Church doctrine that you couldn’t even tell me the origin of the phrase without your Google crutch. I had a professor that railed against idiots like yourself. He called your kind, “Laptop Historians” because you seldom, if ever, pick up a book and learn anything. You simple rely on Google to do your limited digging for you.

    Let me guess, you source most of your information from Wikipedia, right?

  12. Jesse – I read books for myself (the last two this month happen to be books on the Bible). To respond to people who make comments such as yours, Google is adequate.

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