Every day lately I ask myself the same question: How the hell did we fall this far?
American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.
There is no public record of the operations or decisions of the panel, which is a subset of the White House’s National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.
The panel was behind the decision to add Awlaki, a U.S.-born militant preacher with alleged al Qaeda connections, to the target list. He was killed by a CIA drone strike in Yemen late last month.
The role of the president in ordering or ratifying a decision to target a citizen is fuzzy. White House spokesman Tommy Vietor declined to discuss anything about the process.
As Gary Farber put it: “It’s almost as if the drafters of the Constitution considered this!” From Article III, section 3:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. 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.
The Founders knew their history, which was also the history of England. That history was full of similar problems. The kings of England had long and notoriously relied on secret courts that were mere appendages of the executive. They also used secret, politicized, arbitrary trials for treason, as well as other procedures of exactly the sort our Constitution is designed to forbid.
But hey, we don’t need to worry about any of that. It’s not called a court, you see, and there’s no charge or finding of guilt. There isn’t even a statute to be charged under. With no finding of guilt, the kill order isn’t a sentence. And the killing isn’t a punishment. It’s only a war, and you’ll have to take our word about it. About everything that we decide to call a war.
The barons, the gentry, and the Parliament of England all fought for years against such arbitrary powers, often successfully, and sometimes not. We are fighting many of the same battles today. That the names have changed, or that we delicately talk around the question of justice, is immaterial: If thisisn’t an arbitrary, unaccountable government, then the words “arbitrary” and “unaccountable” have no meaning.
And you know what? I don’t care to see the justifications for how Anwar al-Awlaki ended up on the list. Even asking for them seems to grant too much legitimacy to an institution that ought to be strangled in the cradle. If supplying the justifications for this order turns out to help bring more orders of the same kind — secret until it’s too late — then the justifications can rot.
It doesn’t matter if the evidence is good or bad. The guy’s dead now. As of a few days ago, it doesn’t matter one bit whether the decision in his case was the right one. It’s not the decision, it’s the procedure that’s the problem. Setting up a parallel procedure, one apparently with all the awesome powers of the legal system and none of its safeguards, is the wrong way to do things. The Founders knew. They knew it from the history of England.
We already have our Bastille and our Inquisition. This is our Star Chamber. So they’re all quite small, you say? Almost inconsequential? Great. All the easier to get rid of them. Perhaps in our case it won’t take a revolution.