Tag: Constitutional Law

“Are We Even Allowed To Do This?”

Cross posted from The Stars Hollow Gazette

Apparently, “Yes. We Can”

If you told me at the beginning of the Obama presidency that his clearest legacy would involve not closing Gitmo or green jobs or manufacturing jobs – or any kind of jobs, really – but would in fact be his ability to rain targeted death from the sky … I mean, are we even allowed to do that?

Now that President Barack Obama supporters, and many of his non-supporters, are righteously praising the the due process free assassination of Anwar al-Awlaki as justified because the Obama said so, why hasn’t the evidence that al-Awlaki was a threat been released? So far the only evidence we have that al-Awlaki was a “Very Bad Terrorist” is his rhetoric which is protected under the 1st Amendment. When confronted by ABC News‘ reporter, Jake Tapper, White House spokesperson Jay Carney declared that the evidence was still classified and not to be seen. Very nice that Tapper pushed back on this, but where was he when this order was revealed over a year ago? Are we now “Alice in the Wonderland” standing before the “Red Queen” demanding sentence first, verdict later>

Why are so few of us questioning this rational that we so adamantly opposed in the voting booth just a mere 3 years ago? Are those who are cheering this even aware of the precedent and consequences of such a authoritarian action?

Glenn Greenwald, who has been a vocal critic of the Bush and Obama administrations’ abuse of power and disregard for the rule of law, has this observation:

That mentality – he’s a Terrorist because my Government said he’s one and I therefore don’t need evidence or trials to subject that evidence to scrutiny – also happens to be the purest definition of an authoritarian mentality, the exact opposite of the dynamic that was supposed to drive how the country functioned (Thomas Jefferson: “In questions of power, let no more be heard of confidence in men, but bind him down from mischief with the chains of the Constitution”).  I trust My President and don’t need to see evidence or have due process is the slavish mentality against which Jefferson warned; it’s also one of the most pervasive ones in much of the American citizenry, which explains a lot.

Like the Bush administration’s justification for the use of torture and indefinite detention without due process, the Obama administration claims that they carefully consulted lawyers within the Justice Department who unanimously supported the president’s order.

“The Justice Department wrote a secret memorandum authorizing the lethal targeting of Anwar al-Aulaqi, the American-born radical cleric who was killed by a U.S. drone strike Friday, according to administration officials,” the newspaper reported. “The document was produced following a review of the legal issues raised by striking a U.S. citizen and involved senior lawyers from across the administration. There was no dissent about the legality of killing Aulaqi, the officials said.”

But we will never see that memo, it’s classified. So much for that transparency that was promised by Obama. I only hope that Eric Holder has as much success in finding a job after he leaves DOJ as Alberto Gonzales. I digress.

Greenwald makes some important points that debunk other ignorant claims:

(1) the most ignorant claim justifying the Awlaki killing is that he committed “treason” and thus gave up citizenship; there’s this document called the “Constitution” that lays out the steps the Government is required to take before punishing a citizen for “treason” (“No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court“); suffice to say, it’s not met by the President secretly declaring someone guilty backed up by leaked, anonymous accusations to the press;

(2) a new U.S. military study today finds that Awlaki’s killing won’t impede Al Qaeda’s operational capabilities, so for those of you worried that this killing might impede Endless War, don’t worry: like the bin Laden killing, Endless War will march on unimpeded; that’s why it’s called Endless War.

Some argue that al-Awlaki’s assassination will make us less safe and strengthen Al Qaeda’s resolve:

Evidence shows that killing terrorist leaders – or “decapitating” terrorist organizations, in military parlance – rarely ends violence on its own and can actually have adverse consequences. Indeed, killing prominent leaders can motivate their followers to retaliate and increase sympathy for the militants’ cause among civilians.

Simply focusing on the leadership of a terrorist organization rarely brings about the group’s demise. My study of approximately 300 cases of singling out the leadership of 96 terrorist organizations globally – including Al Qaeda and Hamas – between 1945 and 2004, shows that the likelihood of collapse actually declines for groups whose leaders have been arrested or killed.

George Washington University law professor, Jonathan Turley, wrote is a column:

While few people mourn the passing of figures such as al-Awlaki, who was accused of being a leader in al-Qaeda, they should mourn the passing of basic constitutional protections afforded to all citizens. So a president can now kill a citizen without publicly naming him as a target, stating the basis for his killing, or even acknowledging his own responsibility for the killing once it has been carried out. Even if one assumes citizens would be killed only outside the country, it would mean that a mere suspect’s life could become dispensable the minute he steps a foot over one of our borders.

At the same time, the government has expanded the definition of terrorism and material support for terrorism, which in turn further expands the scope of possible targets. When confronted on the lack of knowledge of who is on this list and the basis for the killing, the Obama administration simply says citizens must trust their president. It is the very definition of authoritarian power – and Americans appear to have developed a taste for it.

snip

Notably, in the face of these extrajudicial killings, Democrats who claim to be civil libertarians, such as Sen. Dianne Feinstein of California, have cheered the president – creating a record for the next president to expand on these acquiesced powers.

No republic can long stand if a president retains the unilateral authority to kill citizens whom he deems a danger to the country. What is left is a magnificent edifice of laws and values that, to quote Shakespeare’s Macbeth, is “full of sound and fury, signifying nothing.”

On Protecting The Innocent, Or, Is There A Death Penalty Compromise?

I don’t feel very good about this country this morning, and as so many of us are I’m thinking of how Troy Davis was hustled off this mortal coil by the State of Georgia without a lot of thought of what it means to execute the innocent.

And given the choice, I’d rather see us abandon the death penalty altogether, for reasons that must, at this moment, seem self-evident; that said, it’s my suspicion that a lot of states are not going to be in any hurry to abandon their death penalties anytime soon now that they know the Supreme Court will allow the innocent to be murdered.

So what if there was a way to create a compromise that balanced the absolute need to protect the innocent with the feeling among many Americans that, for some crimes, we absolutely have to impose the death penalty?

Considering the circumstances, it’s not going to be an easy subject, but let’s give it a try, and see what we can do.

On Living Up To Your Words, Or, Tornado? That’s Not In The Constitution.

There are lots of big tough words coming out of our friends in the Tea Party these days, especially when it comes to the permissible functions of the Federal Government.

“If it’s not specifically enumerated in the Constitution,” they say, “It must be a function of the States-and the 10th Amendment says so!”

None are tougher in their language than those living in the States located below the old Mason-Dixon line-and by an amazing coincidence, just this weekend pretty much all of those States got a bit of a “gut check” in the form of dozens of tornados that slammed into the area.

So we’re going to put the Tea Party philosophy to the test today, and see just what exactly the Federal Government should-and should not-be doing to fulfill the Tea Party vision and to help those folks who were hit by this particular natural disaster.

There are lots of big tough words coming out of our friends in the Tea Party these days, especially when it comes to the permissible functions of the Federal Government.

“If it’s not specifically enumerated in the Constitution,” they say, “It must be a function of the States-and the 10th Amendment says so!”

None are tougher in their language than those living in the States located below the old Mason-Dixon line-and by an amazing coincidence, just this weekend pretty much all of those States got a bit of a “gut check” in the form of dozens of tornados that slammed into the area.

So we’re going to put the Tea Party philosophy to the test today, and see just what exactly the Federal Government should-and should not-be doing to fulfill the Tea Party vision and to help those folks who were hit by this particular natural disaster.

Prop 8 Preview: The “Basis” Is The Thing

As you look at today’s Prop 8 ruling, I want you to think back a few weeks to the Massachusetts Defense of Marriage Act (DOMA) rulings for a bit of legal logic that will make a huge difference as this case moves through any appeals process.

What I want you to think about are two moderately obscure concepts: “strict scrutiny” and “rational basis”. The difference between the two will tell us how hard Prop 8 will be to defend, and we’ll quickly walk through what you need to know, right here, right now.

On A Pair Of Victories, Part Two, Or, DOMA Ruled Unconstitutionally Irrational

We are back, just a bit late, to wrap up the discussion we began about the pair of rulings issued in Boston by Federal District Judge Joseph Tauro this week that declare the federal Defense of Marriage Act (DOMA) unconstitutional.

In the first half of the conversation, we examined the ruling in Commonwealth of Massachusetts v Department of Health and Human Services (HHS), today we examine the companion case, Gill v Office of Personnel Management (OPM).

I don’t usually tell you the end of the story at the beginning, but this time I will: there are a lot of happy Plaintiffs this week, and the Federal Government, as Defendant (whom I will refer to as “the Feds” from time to time), is not so happy at the moment.

As with last time, there’s a lot of ground to cover, and the sooner we get to it, the better.

On A Pair Of Victories, Part One, Or, “I DOMA Think Congress Can Define Spouse Anymore”

I have to work fast over the next two days to get you this story, but it is a good one.

We are all aware of the Federal Defense of Marriage Act (DOMA), championed by former Congressman Bob “I’m A Libertarian If It Doesn’t Involve Your Penis Or Vagina” Barr; we now have two rulings, released on the same day by the same Federal judge, that will render the Act moot, if they’re either upheld throughout the appeals process…or if the Obama Administration decides to end that appeals process right now.

There’s a lot of ground to cover, and time is short.

Let’s get to work.