Tyranny

Monday, September 27th, 2010

I don’t trot that word out lightly. But Jesus.

Here’s Glenn Greenwald:

In response to the lawsuit filed by Anwar Awlaki’s father asking a court to enjoin the President from assassinating his son, a U.S. citizen, without any due process, the administration late last night, according to The Washington Post, filed a brief asking the court to dismiss the lawsuit without hearing the merits of the claims.  That’s not surprising:  both the Bush and Obama administrations have repeatedly insisted that their secret conduct is legal but nonetheless urge courts not to even rule on its legality.  But what’s most notable here is that one of the arguments the Obama DOJ raises to demand dismissal of this lawsuit is “state secrets”:  in other words, not only does the President have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are “state secrets,” and thus no court may adjudicate their legality.

There are no mitigating factors, here. Obama is arguing the executive has the power to execute American citizens without a trial, without even so much as an airing of the charges against them, and that it can do so in complete secrecy, with no oversight from any court, and that the families of the executed have no legal recourse.

You can’t even make the weak argument that the executive at least has to claim this power in the course of protecting national security. Because it doesn’t matter. Obama is arguing that he has the right to keep everything about these executions secret—including the reasons they were orderedt—merely by uttering the magic phrase “state secrets.” In other words, that this power would only arise under a national security context is deemed irrelevant by the fact that not only is Obama claiming the president’s word on what qualifies as “national security” is final, he’s claiming the power in such a way that there’s no audience to whom he would ever need to make that connection.

So yeah. Tyranny. If there’s more tyrannical power a president could possibly claim than the power to execute the citizens of his country at his sole discretion, with no oversight, no due process, and no ability for anyone to question the execution even after the fact . . . I can’t think of it.

This is horrifying.


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231 Responses to “Tyranny”

  1. #1 |  Tom Perkins | 

    “Show me how the use of hyperbole indicates I know I’m losing an argument.”

    Oh it’s a bald assertion, but one I’m quite comfortable with.

  2. #2 |  Tom Perkins | 

    “Well played, Boyd.”
    &
    “I’ll try to type a little slower for you.”

    Hmm. Legends in your own minds.

  3. #3 |  Tom Perkins | 

    “It specifically covers only organizations linked to the 9/11 attack. It does not cover everyone who agrees with their aims.”

    With the phrase about preventing future attacks not being limited to attacks by the same people who undertook 9/11, I believe it is no stretch to say it covers all persons who are violently in sympathy with AlQaeda.

    “Tom, I think…but it’s tyranny nonetheless. Removing judicial review ends the rule of law because the courts are the only truly individually initiated redress to governmental abuse.”

    Not more tyranny than war has ever been. I’d have a quite different opinion if Predator drones are used to settle zoning disputes.

  4. #4 |  Nick T | 

    Tom,

    You completely misunderstood or avoided all of my points.

    Your argument relies on so many facts that are not clear, and therefore if we leave those to the Executive to determine unilaterally then we are giving them enormous unprecedented powers. Again, you are trying to have it both ways by relying on precedents between uniformed combatants and declared wars, but not realizing that this authorizes unprecedented powers, or assuming facts at the center of what makes those theories or rules applicable. You rely on these old precedents, but don’t recognize that past US declarations of war used explicit language up until relatively recently.

    The point of highlighting all the rules of war is that under some of them, Awlaki can not be killed. If he is not covered by AUMF (which he clearly isn’t and only your baseless interpretation of it provides he is) then this is unlawful, if he is not engaged in active fighting (anaologous to a solider who lays down his arms) then he can not be killed, if he is not engaged in conflict but is only espressing support for violent action (like an opinionated civilian) then same. Only by resolving these questions of fact can you even apply your reasoning.

    As qwints pointed out above, if you leave this to be determined solely by the Executive then you are creating tyrannical powers. I mean, honestly tell me what is the point of the AUMF if the President can determine without question who it applies to, and where and udner what circumstances they can be killed with no judicial review at least at any point? You seem happy to concede there are rules for war but completey averse to the idea that a court would later review the application and adherence to said laws. I mean, if Congress oversees the President’s prosecution of a war, they can only do this by passing laws, and what then when the President defies them?

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  6. #6 |  qwints | 

    Nick, Congress can impeach the president.

    Tom, the part about preventing future attacks is quite similar to the first phrase of the second amendment. It’s merely stating the reason for the law, not creating law in itself. Furthermore, the reference to “such organizations” makes it quite clear it’s limited to people and organizations involved in 9/11. A little research, however, does show that the US has alleged that Al-Awlaki did aid the 9/11 hijackers. (Chapter 7 of the 9/11 commission report.

    Moving on, you say that this is no more tyrannical than war has ever been. But this is a war broader in potential scope than any before. It’s well established that people have been mistakenly snatched off city streets due to mistaken identity. People thousands of miles away from combat zones are imprisoned, tortured and killed. When a war lacks geographic and temporal limits, we have to construct limits or we risk tyranny.

  7. #7 |  Tom Perkins | 

    “therefore if we leave those to the Executive to determine unilaterally then we are giving them enormous unprecedented powers.”

    I have never said the Executive determines those facts in and of itself, but does so under the oversight of the Congress. Declarations of war do provide great powers to the Executive, nothing discussed here in relation to Alwaki is unprecedented, except the notion advanced by Balko and the like that the civil courts have say in killing the enemy beforehand in each individual case, or to say that it is a priori not a matter of state secrets as to the specifics of such a killing.

    “but don’t recognize that past US declarations of war used explicit language up until relatively recently.”

    I specifically recognized it above, sorry you missed that and my concomitant true statement that the constitution does not require such explicit language, so it is not required for a declaration of war to be effective.

    “If he is not covered by AUMF (which he clearly isn’t and only your baseless interpretation of it provides he is)”

    Of course he is, he is a person violently in sympathy to AlQaeda and actively engaged in carrying their water. The AUMF has the phrase in it about preventing such future attacks. If in fact he restricts himself to “religious” activities, then he is still a valid target per the rules of war as much as an enemy chaplain is who urging his troops to victory. You simply know not whereof you speak.

    “if he is not engaged in active fighting (anaologous to a solider who lays down his arms) then he can not be killed”

    Like I said, he surrendered, stop the presses! My analogy to Guderian holds for his temporarily laying down arms, and my analogy about an eney chaplain holds if in fact he is merely preaching our defeat and or gathering recruits.

    “if he is not engaged in conflict but is only espressing support for violent action (like an opinionated civilian) then same.”

    If he were in the US, it would be the crime of sedition, and he could be charged, tried, and on the admitted facts of it convicted–or simply held without trial until the war ended or he died first. Per my analogy to an enemy chaplain, he can be killed without trial, and it would be legal per the rules of war.

    “if you leave this to be determined solely by the Executive then you are creating tyrannical powers.”

    Except I’ve never said it should be left to the Executive, it is a job for the Executive and the Legislature.

    “You seem happy to concede there are rules for war but completey averse to the idea that a court would later review the application and adherence to said laws.”

    That’s because was is not a matter for the civil courts, period. Never has been. The Supreme Court would only enter into it on the matter of the few constitutional restrictions that might arise, say for example by treaty.

  8. #8 |  Tom Perkins | 

    “this is a war broader in potential scope than any before.”

    Which creates no new powers. The Executive here is not attempting any new powers–it is availing itself of new means, but no new powers.

  9. #9 |  Tom Perkins | 

    The broader geographic scope does not mean any new powers, it just means more square feet.

  10. #10 |  JS | 

    I don’t really have anything to say this time I just want to make sure we get this thread up to 200 posts!

  11. #11 |  JS | 

    I swear it said 200 when I posted that and now its says 210 ???

  12. #12 |  qwints | 

    Tom, you’re absolutely wrong on the crime of sedition. The US does not recognize common law crimes and the sedition act was repealed in 1921. The crime of seditious conspiracy exists (18 USC 2384) as does the crime of “advocating overthrow of government (18 USC 2385). Both require that the accused specifically advocate assassinating a politician or the violent overthrew or destruction of the government. Declaring that people should kill cops or soldiers is simply not sedition though it may be another crime. Furthermore, even if someone was convicted of sedition, the maximum sentence is 20 years, not the duration of the conflict.

    You also claim that chaplains are ‘valid targets.’ The claim is false. The Geneva conventions specifically declare that chaplains are noncombatants (Protocol I, 8 June 1977, Art 43.2) protected by Article 3 of the Fourth Geneva conventions. In fact, countries are prohibited from “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

  13. #13 |  Tom Perkins | 

    qwints you may be correct that the original sedition act was repealed in 1921, but I strongly doubt if advocating that a specific enemy in time of declared war succeed in defeating us is not also advocating the destruction of the government, additionally jihad does require that the infidel be killed if they do not submit, on top of all of which, if the person is treated as a illegal combatant, then they are entirely outside the civil justice system and yes can be held until they are dead or the wars ends, whichever comes first. Go fish.

    No, you are quite wrong in looking at the Geneva Conventions to save your argument re chaplains–the specific bit you cite presupposes the chaplain is a civilian.

    By your standard, bin Laden is a civilian chaplain and we can’t a harm hair of his head.

  14. #14 |  Tom Perkins | 

    “In fact, countries are prohibited from “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.””

    Again, if that meant what you need it to mean to apply to Alwaki, then soldiers aren’t allowed to shoot each other without a guilty verdict first. Good luck with that.

  15. #15 |  qwints | 

    Tom, you brought up the subject of chaplains. Specifically you said, “If in fact he restricts himself to “religious” activities, then he is still a valid target per the rules of war as much as an enemy chaplain is who urging his troops to victory.” I replied that an enemy chaplain is a noncombatant and not a valid target. I did not state that Al-Awlaki was a chaplain. Chaplains (unarmed persons exclusively engaged in religious activity attached to a military unit, Art. 8 (d)) are not valid targets as you asserted under the Geneva Conventions. You were similarly wrong when you claimed that expressing support for violent action was sedition punishable by internment for the duration of a conflict.

    The question of whether illegal (usually called unlawful) combatants can be held outside the civil justice system is a complex question of US and international law. The Supreme Court has held that Common Article 3 of the Geneva conventions applies to all prisoners held pursuant to the AUMF. Hamdan v. Rumsfeld, 548 U.S. 557 (2006). Furthermore, it also held that US citizens are entitled to challenge their detention before an impartial judge. Hamdi v. Rumsfeld, 542 U.S. 507 (2004). The executive branch does not have the ability to hold a US citizen without due process regardless of legislative action.

  16. #16 |  qwints | 

    Re: 214.

    There is a clear and obvious difference between combat and a firing squad.

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  18. #18 |  Tom Perkins | 

    “Tom, you brought up the subject of chaplains.”

    Yes I did, and disposed of your spurious point.

    “specifically you said, “If in fact he restricts himself to “religious” activities, then he is still a valid target per the rules of war as much as an enemy chaplain is who urging his troops to victory.” ”

    I did say that and it is true, for this enemy, and they will not deny it, it is a religious duty to kill the enemy and to recruit new followers to do the same. Cool how yo fell right into that.

    “There is a clear and obvious difference between combat and a firing squad.”

    And the difference is the the target of the firing squad is entirely at the disposal of his enemy, he is in their hands and incapable of further action whether he is killed or not. In combat the enemy is at large and doing the work of the war, just as Alwaki is.

  19. #19 |  Tom Perkins | 

    See you later dudes.

  20. #20 |  Cynical in CA | 

    #202 | Tom Perkins —

    “I’ll try to type a little slower for you.” — CinCA

    Oh Tom, you misunderstood me. What I meant was that I would type slower so that my own thoughts were properly expressed and conveyed the exact meaning of my words. Seem’s the timing has been a bit off.

    Well, thanks for educating me just the same. You make very convincing apologies for the State.

  21. #21 |  Seamus | 

    Constitution only applies on US soil. Plus he’s renounced his citizenship. He’s actively waging war against the US. I really don’t feel like wasting the lives of our Special Forces troops in order to bring him in. Predator drone is good enough for me.

  22. #22 |  Cynical in CA | 

    For anyone who’s interested:

    http://tomdperkins.blogspot.com/

    Come and take them.

    Mountaineers are always free.

    For our faith in the Founder’s faith.

    Man, the internet is an amazing tool.

  23. #23 |  George | 

    Sounds good to me!

  24. #24 |  Lawfare › Closing Out My Exchange with Adam Serwer | 

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  25. #25 |  nmeagent | 

    Tom — an civilian American citizen not only has an absolute right to due process before being murdered by the state, but also is presumed innocent until the state proves their case in the proper venue. Any assassination without this requirement is first degree murder or conspiracy to commit. The only legal way to kill this man is in self defense; basically he must be killed in the act of shooting at some of our troops!

  26. #26 |  Toastrider | 

    Part of me really doesn’t give a flying crap. Much like Adam Gadahn, if this ass eats a Hellfire, my only complaint will be ‘what took them so long’.

    But frankly, this sort of thing sets off my ‘twitch meter’ like nobody’s business. Various tea party, militia, and conservative elements (love ’em or hate ’em) are persistently identified as ‘destructive’, ‘dangerous’, and ‘terroristic’ — regardless of if they advocate ‘throw the bums out’ or ‘hang ’em high!’. And conversely, there are leftists (particularly the various animal rights/eco-nut fringe groups) who could easily be flagged the same way, REGARDLESS of their citizenship (I may loathe them, but they should get their day in court like everyone else).

    The precedent set is simply too dangerous to be left in ANYONE’s hands — regardless of political affiliation.

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  29. #29 |  this is silly | 

    “I have to admit that I was really surprised when Obama pulled this one out of his hat. Perhaps shouldn’t have been, but however much I dislike him I just didn’t think he’d hit the slippery slope with a goddamned bobsled…”

    I’d like to say I told you so – because I did, as did many others – but it’s not like we could really expect anyone to believe us, so perhaps that isn’t fair.

    It is fair to say that plenty of people had misgivings long before November of ’08, and that those people were ridiculed as hicks, rubes, racists, conspiracy nuts, etc.

    Even I initially thought the guy was at least likeable even if I did not agree with his politics. That quickly gave way to skepticism and then dislike as I learned more about him. The problem, though, is not you simply could not depend on the media to report on the subject.

    I’m not going to say there isn’t a time and a place for the US Gov’t to drop a JDAM on a citizen. But there is NO time or place for them to do it without any sort of accountability whatsoever.

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  31. #31 |  Donna | 

    I don’t have a problem with people expressing their views on issues involving this country but the real problem is addressing people in the position they hold. Now if some of you did not have a problem addressing bush as President Bush, Why is it that President Obama is not addressed in the same manner. This man is the President and should be addressed in every article, through the media, etc, as such. This country is the only country I know of that has no respect for those in authority positions. Other countries see us as a divided nation because we have lack of respect for each other and those that are in authority positions. President Obama’s job is very imortant to this country and some of you address him as though he is not the leader of this country. I would not want his job because it carries the wieght of this world issues, problems and making sure we are protected from terrorism. So address him as our leader (President Obama) because he was not the one who sent this country to war, he just inherited the mess made by the last president in office.