October 02, 2011

Subjective Due Process

Our amiable, enigmatic President made good on one of his new "policies" recently and assassinated an American citizen, Anwar al-Alwaki, in Yemen, dispatching him and some other people by means of a Predator drone strike. Technically speaking, prima facie as we say, this presents a Constitutional problem. The Fifth Amendment to the Constitution (part of the Bill of Rights) provides that

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, 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; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
Notice that the Founding Fathers were pretty practical guys. They didn't say you could never off a traitor, with or without a lot of legal rigmarole, serving in the armed forces if he were to betray his fellows to the enemy in the heat of battle, for instance. This exception does not apply to the "Muslim cleric" (otherwise known as an American citizen), however. He would seem to fall into the general category of "person."

Except for the chronic malcontents, liberal bloggers and the like, no one seems terribly troubled about Awlaki's assassination outside of the Muslim community. I watched Bill Maher Friday night and Bill and most of his guests, which included Salman Rushdie and the former governor of Michigan, Jennifer Granholm (who has accepted a teaching post at John Yoo University in Berkeley), were all fired up about this latest display of vicarious macho by the O Man. Maher loves the difficulties this sort of behavior presents to the Neanderthal Republicans: how can the Republicans complain about a guy who puts out hits on American citizens without Due Process?

One guest, Seth MacFarlane, the creator of "Family Guy," was somewhat more circumspect. He pointed out some of the difficulties that might ensue if we go to a system of complete subjective due process where the national leader can have American citizens killed when he feels like it. One difficulty he raised was the idea that this power could fall into the wrong hands, implying, I think, that the power is currently in the right hands and was appropriately used to kill Alwaki. (As Jack Nicholson said in the movie, maybe that's just as good as it gets these days.) MacFarlane asked how we would feel if Michele Bachmann had such a power.

That's a little farfetched. It's farfetched because Michele Bachmann is not going to get elected President. A more realistic hypothetical is to ask how we would feel if Rick Perry got elected. Rick Petty already has an extensive track record of presiding over the state elimination of people, and he's said that the 234 executions in Texas during his governorship do not disturb his sleep at all. He felt good about all of them. We might add to this factor Perry's statement that if Ben Bernanke "printed more money" before the election, and was foolish enough to cross the Red River after doing so, that Texans "would treat [Bernanke] pretty ugly." I assume Perry meant that Bernanke would be shot, because most things in Texas mean someone is going to get shot.

So let's see where we are here. What would be the distinction in principle between Rick Perry's decision to order the assassination of Ben Bernanke and Obama's decision to order the killing of Anwar al-Alwaki? Just to make the quiz easier, I'll give you a clue: there is no distinction. In both cases a President decided that a person posed a threat to the safety and security of the United States. Indeed, Perry's defenders would point to historical precedent, because "debasing the coinage" of the United States was, at times, a capital offense, as mentioned in the Fifth Amendment. Obama's precedent establishes that a President does not have to prove anything in court, or even obtain an indictment, before he orders an American citizen killed. If the "kill warrant" needs some connection to the War on Terror, well hell, President George W. Bush said the entire world was now a battlefield (that's why he could arrest Jose Padilla, an American citizen, in Chicago, and incarcerate him for years without Due Process), the War on Terror never ends, and therefore anything that happens anywhere which (the President thinks) makes the United States weaker or less able to defend itself (such as devaluing its currency) justifies whatever sanction the President feels like meting out.

A reductio ad absurdum? No, not at all. Anyway, Thomas Jefferson, John Adams and Alexander Hamilton had far more direct experience with the perils of tyrannical power than the contemporary politicians dealing with this problem, and for that very reason they "instituted laws among men" built on the principle that subjectivity in due process was much too dangerous. It will inevitably be abused, terribly and irrevocably, as those tyrants of 1930's Europe, who built careers out of ruling with subjective brutality, should have convinced everyone once and for all.

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