Firstly, I don’t want to quibble with those who insist on defending the character of Obama the president. My fight is not personal.  And honestly, I don’t have all that much to say on the topic.

However, what can get swamped in all the rhetoric is one very fundamental – and I would here insist on the designation of fundamental – failure. It is a failure that supporters of the Obama administration essentially excuse as being unquestioningly outweighed by all the good that’s been accomplished under his watch. Unfortunately, his successes are side issues, mere trivia when considered against his administration’s continued assault on the rule of law and due process, the very things that make America a beacon for the world.

Indeed, whereas Obama campaigned almost singularly as the anti-Bush, as someone who would end the decline and the slipping towards tyranny, he has in fact championed perhaps one of the most sinister legacies of the Bush administration: the so-called right to assassinate American citizens.

The problem

Barack Obama, like George Bush before him, has claimed the authority to order the murder of suspected terrorists based solely on the claim – albeit a claim being made by the president – that they pose a threat to the United States. But now, astonishingly, the president is claiming the right to order the assassination of American citizens.

One of the tenets of Anglo-American concepts of liberty and freedom is, I had thought, to be able to live without the fear of your own government jailing or indeed, murdering you. At least, not doing so arbitrarily.

Now, however, it appears that this fundamental right is under threat. Americans are seemingly no longer entitled to charges, trial, or any ability to contest accusations being made against you whatsoever. Due process and the rule of law now seem to be simply niceties that can be ignored in order to win the ‘war on terror’ rather than the most fundamental checks against the abuse of power by the government against its own people.

When I first raised the issue of presidential-authorised assassinations of American citizens, a commenter asked me if I couldn’t imagine a scenario in which Obama's action might be the right thing to do?

I responded that yes, indeed, there are several scenarios in which it might appear to be a good idea to simply murder somebody for the security of the nation, and indeed the United States has a long and proud history of doing so. (But those have always just been foreigners, not real Americans. I digress.) There are a thousand hypothetical situations and true-life examples that can be trotted out in defence of such an authority, from ticking time bombs to utilitarian analyses of collateral damage, but the implications of having one man, or group of people, decide, in secret, what does and does not constitute a ‘terrorist threat’ is truly frightening.

The USA is ostensibly a country of laws, a country founded on an actual fear of tyranny. But the presidential right to order the assassination of American citizens – who, to stress this point, have no access to the charge being levelled against them, the evidence used in the decision or the means by which it was obtained, and no right to appeal – is a creeping towards tyranny. Claiming that somebody may be at ‘war’ with the United States government is just far too simple a statement on which to undermine a fundamental principle of the republic.

Obviously, in times of war, the president is able to order U.S. forces fighting on an actual battlefield to kill combatants actively fighting against them, including American citizens. That's just war (and why it's okay to kill on a real battlefield in a war zone but not torture prisoners once they're captured).  But combat is not what we're talking about here. Those who will be assassinated may be killed at home, sleeping in their bed, driving in a car with friends or family, or any number of other non-war making activities.

Assassinations

Assassinations, political or military – however you want to frame the issue – are generally considered bad form by much of the civilised world. So much so that American presidents have in the past publically proclaimed their repulsion of the very idea. In fact, as reported in the Glenn Greenwald’s piece I earlier suggested as good reading on this subject, not only did Ronal Reagan sign an executive order prohibiting such an actions against anyone[i] (and whether this was lived up to is another question altogether but at least they had the good sense to keep it quiet if they didn’t), but Abraham Lincoln – in the middle of an actual war – articulated his opinion of assassinations thusly:

The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such intentional outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation, made by whatever authority. Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism.[ii]

There are surely a number of folks out there who will reflexively justify this authority by insisting that the assassination targets are terrorists, very real threats to America and therefore deserve to be killed. What these authoritarians, from all spectrums of political ideology it should be noted except – ironically enough –the extremes of right and left, mean however is that the government has accused them of being terrorists, which is not the same thing as being a terrorist. It shouldn’t be much of a stretch for rational people to avoid assuming that government claims are inherently true. Rather than accepting government claims as true, the obligation, indeed the onus, should be on the state to justify its case. Not the other way round.

Where’s the beef?

And even if these American terrorists are actively engaged in some sort of global jihad against the country of their birth, is the threat they actually pose great enough to provide a satisfactory answer to the very basic and simple question, why? Why exactly is it okay for the president of the USA to order the death of one of his fellow citizens without even a hint of due process?

“To keep us safe!” can be the only reasonable answer.

But then, to keep us safe from what?

“From the (existential) threat posed by global Islamic terrorism”, you might answer. Now, I am sure that there are some who will say, “Andrew, the world changes, threats change, and so therefore, must our systems evolve. Islamic terrorism represents a fundamental challenge to the American state and to our way of life.”

But I say bollocks! And if my outrage is not enough to convince you, let me use something more tangible. In 2009, an average of 93 people was killed on the roadways of the U.S. each day.[iii] Total vehicle deaths over the past decade in the US average out at roughly 40,000 a year.  As a point of comparison, high end estimates put the total number of people killed by “radical Islamic” terrorists in the past decade outside the Muslim world at no more than 15,000. Total.

So it’s pretty hard to argue with any degree of credibility that Islamic terrorism represents, objectively, anything more than a minor irritant when compared with death tolls most Americans seem willing to tolerate on their own highways.

And so to keep us safe from a relatively minimal threat posed by a small group of rabid and hate-filled men, some are prepared to place greater and greater power, and ever more (unchecked) authority into the hands of fewer and fewer people. In exchange for safety, or at least the illusion of it, some seem willing to accept the nullification of centuries-old rules established to protect us from our own worst impulses.

I would argue that it is this process, this mentality that represents the far bigger threat to the republic than a few (mostly amateurish) bombs aimed at the American mainland.

However, if you are still unconvinced and continue to be someone who believes that the president should have the power to order American citizens killed without a trial because them have been deemed a terrorist, because of the immensity of the threat being now posed by Islamic radicals, shouldn't there at least be some judicial oversight?  Do we really want the president to be able to make this decision unilaterally and without any checks?

In an earlier discussion of this topic, the idea was raised that stressed the need for quick response times and so, consequently, the need for a streamlined process.

But, if I am not mistaken, we are talking here about killing. Not capturing and imprisoning suspected terrorists, but actually murdering them. Not sure how comfortable we should be with streamlining murders.

If the Fifth Amendment's explicit guarantee – not to be deprived of life (liberty and property as well for those interested in such matters), without due process of law – does not prohibit the US government from assassinating you without at least being convicted of something heinous, what exactly does it prohibit?

Indeed, if the president has this right, what other rights can you possibly retain? 

Certainly not those contained in the First Amendment. The threat of the president ordering the assassination of citizens because of their ideas and words rather than because they were actually engaged in terrorism, or war against the government, is certainly not an abstract one.

The threat?

In fact, the current controversy has been triggered by the Obama administration's authorisation of the CIA to kill Anwar al-Awlaki, an American citizen. But al-Awlaki has not been accused of attacking Americans or indeed of any terrorist acts. Instead, he's accused of being a "radical cleric" who supports Al Qaeda and now provides encouragement to others to engage in attacks – a charge vehemently denied by his family. (al-Awlaki is apparently unable to speak publically what with his being in hiding due to fear that his own government will assassinate him and all.)

And so, how is it that the president can, with little notice, decide that this man – an American citizen simply expressing his opinion (an opinion you may find abhorrent however) is such a threat that not simply are his constitutional rights stripped away from him, he is made an outlaw and thus subject to assassination?

But Andrew, dude, he’s advocating violence against Americans! He’s a terrorist. Surely...

First of all, if you are going to insist that murdering him is justified because he's an evil terrorist who is trying to kill Americans, you should explain how it is that you know this. Often, we presume innocence rather than guilt (or at least we do when not trying people in the court of public opinion), with guilt being determined with a trial where evidence is presented and the accused has an opportunity to defend himself.  I don’t think that it is too much to have at least some suspicions about simply accepting the unchecked accusations of government leaders. It's especially true given the track record of the US – and to be fair, a great number of other governments – in making such claims.

And even if he is advocating violence, the question of where First Amendment-protected speech, in particular radical advocacy, ends and criminality begins is probably best dealt with in the courts and not by an increasingly powerful (and secretive) executive.

The issue is not entirely novel however, and has been dealt with by the courts, most recently in 1969. In the pivotal case of Brandenburg v. Ohio, the Supreme Court unanimously reversed a lower court criminal conviction of a Ku Klux Klan leader who – surrounded by ominously hooded individuals holding weapons (and purportedly burning crosses...good grief!) – gave a speech threatening  “revengeance" [sic] against certain ethnic groups he deemed responsible for continuing “to suppress the white, Caucasian race."

The court held that despite idiocy, the First Amendment does indeed protect advocacy of violence and revolution, and that the state cannot punish citizens for expressing such views.  The decision cited Dennis v. United States, a ruling that affirmed the First Amendment rights of communists to call for revolution – even violent revolution – inside the US. It made clear that while violence itself was off the table, the government cannot punish someone for speech that merely advocates or justifies that violence.

It seems that al-Awlaki feels violence by Muslims against the US is justified in retaliation for the violence the US has, in his opinion, long brought to the Muslim world. Alright. I can at least sympathise with that opinion. Seems fair. And as an American citizen, he has a seemingly court-affirmed constitutional right to express those views free from the fear of drone attacks, poison darts, or exploding cigars(!?) – at least from his own government. (The Yemenis apparently want to kill him too.)

Obviously, there are those who justify such assassination powers on the grounds that radical Islam is a grave threat, but that’s just too easy. We always say that to justify breaking the rules we’ve set up to keep our own worst selves at bay. It’s always fear that leads us down the darkest paths. We said it of Communists during World War I and the Japanese in Part Two. Indeed, in the wake of events like the bombing of the Federal Building in Oklahoma City, or even the various attacks on abortion clinics – and more disturbingly the doctors in them – by those strangely ironic hypocrites...murdering pro-lifers, shouldn't the President to be able to assassinate those “radical” Americans without a trial? Why one but not the other?

And saying, for example, that the US is at war and that normal rules are no longer relevant, that never mind, the government won’t target people for their speech except in the most extreme of circumstances is naive at best. At worst, well, complicit. Indeed, in the current climate of fear that seems to be clouding the collective judgement of a nation, all it seems to take to nullify the constitution is to call a man a terrorist. A close corollary, non-kissing cousins if you’ll pardon me the metaphorical variant, is that merely by invoking this “War on insert abstract noun here” (there are others – think war on drugs, war on cancer. I needn’t continue) or terror if you insist, justifies the same thing. Remember that we are now in a state of perpetual war, of perpetually ‘exceptional circumstances’. And this is made particularly dangerous given that, by most accounts, this is a war that may not end for...well, forever.

In a strikingly Orwellian manner, the Obama administration – like the Bush administration before it – has continued to define the battlefield in this war on terror as the entire world! So, for all intents and purposes, and to bring it down to its essential, and most disturbing element, Obama is claiming the power to order U.S. citizens killed anywhere in the world, even while not actively engaged in any ‘terror-related’ activities, based solely on his say-so and with no judicial oversight or other checks. There are no outside checks or limits at all on how he – and it bears repeating, on any future presidents either – comes to his decision or the information used in that process. The president is in effect demanding the power to impose death sentences on his own citizens without any charges or trial.

The real danger?

But far beyond the specific injustices of assassinating Americans without trials, the real significance, the real danger, is that the people of the United States continue to be frightened into radically altering their system of government.

As Glenn Greenwald at Salon.com puts it:

Obama’s assassination policy completely short-circuits [due] process.  It literally makes Barack Obama the judge, jury and executioner even of American citizens. Beyond its specific application, it is yet another step -- a rather major one -- towards abandoning our basic system of checks and balances in the name of Terrorism and War.

And again, here is the real danger.

In a recent article for Slate, Dahlia Lithwick encapsulates this problem magnificently:

We're terrified when a terror attack happens, and we're also terrified when it's thwarted. We're terrified when we give terrorists trials, and we're terrified when we warehouse them at Guantanamo without trials. If a terrorist cooperates without being tortured we complain about how much more he would have cooperated if he hadn't been read his rights. No matter how tough we've been on terror, we will never feel safe enough to ask for fewer safeguards. . . .

Since 9/11 and the declaration of war on terror, the US government has become ever more willing to suspend some of the basic individual protections that light that beacon atop that glorious mountaintop and the public at large has, it appears, become ever more contemptuous of American traditions and institutions. The almost comical failures of both the underpants-bomber and the Times Square car bomb reveal that, if anything, terrorists have actually gotten dumber in the eight-plus years since the World Trade Center fell. And yet, despite this, Americans continue to allow themselves to be cowed into believing that their institutions, their checks and balances against government abuse, their values and rights are negotiable. And so long as citizens continue stay terrified of terrorists and wholly submissive whenever the word "war" is uttered, the real threat remains ourselves.

Indeed, one of the most incisive analysts of world affairs, Gwynne Dyer, explains, “A civilization that thinks the biggest threat it faces is terrorism is a dangerously deluded civilization.”

The end

The fact that my government, in any form, can’t simply arrest me, throw me in jail and execute me on a whim is the fundamental tenet on which stands our democratic institutions and which ensures the health of the republic in which they reside. Without this core guarantee, nothing else matters. There is no freedom of speech, property rights, or free markets. Our entire system of government is predicated on accountability, on the rule of law, and possessing one person with not only the ability but the legal authority to simply order the execution of an individual, no matter who they are is no different than elevating our presidents beyond the rule of law and outside the realm of the ordinary citizen, and and crowning them king.

Islamic terrorism does not in itself represent anything more than an abstract threat. However, the more ruthlessly and radically we react in the face of the occasional bomb or perhaps even more spectacular (yet with relatively limited lethality) attacks, the greater the threat this terrorism actually becomes.

The old devils are at it again, and just taking their word for things, it`s just too dangerous.