This Independence Day, America Again Has a Monarch

We have gone from an inherited tyrant to an elected one.


Jennifer Staub/Flickr

After a brief holiday last week, I returned to some heavy reading courtesy of the federal government. Some of the materials that I read were gratifying, and one was terrifying.

In one week, the Supreme Court told the police that if they want to examine the contents of our cellphones, whether at traffic stops or serious crime scenes, they need to get a warrant. It told the president that he cannot wait until Saturday morning, when the Senate is not in session, to appoint high-level officials whose jobs require Senate confirmation and then claim that they do not require Senate confirmation because the Senate was in recess. And it told selfless parents who stay home to care for their disabled children that the government may not force them to join health-care labor unions and pay union dues against their will.

Buried in these opinions was a legal memorandum sent to the president on July 16, 2010, nearly four years ago, and released last week, after two years of litigation aimed at obtaining it. The Obama administration had successfully resisted the efforts of The New York Times and others to induce a judge to order the release of the memo by claiming that it contained state secrets. The judge who reviewed the memo concluded that it was merely a legal opinion, and yet she referred to herself as being in "Alice in Wonderland": The laws are public, and the judicial opinions interpreting them are public, so how could a legal opinion be secret?

Notwithstanding her dilemma, she accepted the government's absurd claims, and the Times appealed.

Then the government shot itself in the foot when it surreptitiously released a portion of its secret memo to NBC News. This infuriated the panel of federal appellate judges hearing the Times' appeal, and they ordered the entire memo released. Either it is secret or it is not, the court thundered—and the government, which is bound by the transparency commanded by the First Amendment, cannot pick and choose which parts of its work to reveal to its favorite reporters and which to conceal from the rest of us.

Last week, the administration released the memo. It consists of 40 highly blacked-out pages, the conclusion of which is that the president can order the CIA to kill Americans who are present in foreign countries and who, in the opinion of high-level government officials, pose a threat to Americans and may be difficult to arrest.

The memorandum acknowledges that it is unprecedented in its scope and novel in its conclusion, and requires predicting what courts will do if they review it. Lawyers often predict for their clients what courts will do, and thus from their predictions, extrapolate advice for their clients. But history has recorded no memo before this one that has advised a president in writing that he is free to kill an American who is not engaging in violence. The logic of the memorandum states that Americans overseas who join organizations that promote acts of terror are the equivalent of enemy soldiers in uniform in wartime. It follows, the memo argues, that because Congress has authorized the president to kill foreign terrorists when they are in foreign lands, he can kill Americans there, as well.

Conveniently, the memorandum never mentions the Fifth Amendment to the Constitution, which famously commands that if the government wants the life, liberty, or property of any person, it can only do so via due process. Due process requires a jury trial with its attendant constitutional protections. The only recognized exceptions to this requirement are the individual and collective right to immediate self-defense. Since natural rights trump all positive law, a cop can kill a bank robber who is shooting at him, and soldiers can kill enemy soldiers who are about to shoot at them. At the root of the recognized exceptions to the requirement of due process is the active violence of the perpetrator, such that due process is impossible and such that the threat to life is clear, present, and immediate.

The persons killed pursuant to this secret memo were all Americans. One, Anwar al-Awlaki, the stated target of the memo, was not engaged in combat or armed or on a battlefield when he was killed; he did not wear the uniform of an enemy army, and he was not engaged in active violence at the time of his murder. He was in a car in the desert in Yemen driving to meet his 16-year-old American son. He had been under continuous surveillance by 12 American and four Yemeni intelligence agents for the 48 hours preceding his murder by a CIA drone. The drone that killed him was soon followed by drones that killed his son and two other Americans.

This week marks the anniversary of America's birth as a free nation, when we fought a war against a tyrant and seceded from his kingdom. We thought we had banished tyranny from our shores. We thought we had ratified a Constitution that would compel the government to respect our natural rights. We thought we had established a society based upon the rule of law.

We were wrong. We have gone from an inherited tyrant to an elected one. I have never heard President Obama say this, but it seems logical that if he thinks he can lawfully kill Americans abroad, he also thinks he can kill us here.

Happy Fourth of July.

NEXT: Brickbat: The Eyes of Texas

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  1. The logic of the memorandum states that Americans overseas who join organizations that promote acts of terror are the equivalent of enemy soldiers in uniform in wartime.

    So by their own argument the Gitmo prisoners have status as POWs.

    1. What? No no no. It’s like the Massachusetts SWAT team you see. They a private company when FOIA request come in, and a government agency with sovereign immunity during trial. The terrorist are enemy combatants until we capture them, then they become rogue agents that have no rights. Get it now Mr. Diet?
      /teh gubmint

  2. the FYTW memo.

  3. “….if the government wants the life, liberty, or property of any person, it can only do so via due process.”

    “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;”

    Given the vague wording of the amendment, “..in the Militia…”, “..when in actual service in time of War or public danger;”, by making a simple declaration of a ‘war on terror’ (time of public danger) the government is seeking to render the amendment null and void.

    By my reading the exception seems to apply only to members of our forces, not of the enemy. If a person of US citizenship is colluding with the enemy, would not Article III, section 3 apply instead? “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 Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”

    1. I remember how the Bush admin. claimed to be in a legal quandary as to how to deal with these cases, yet the constitution lays out very clearly how to do so. It is almost as if they had a different agenda than the one they professed to have.

      Obumbles, as usual, gets everything bassackwards. He is putting furriers on trial and droning citizens. I hardly know what to say about the guy anymore. He just fucks up everything he touches.

      This weasely method of getting around the constitution is an exceedingly dangerous road to go down. How long before simple dissent is considered cause for snuffing out because it increases ‘public danger’?

      1. It doesn’t seem to be too far road to go down when we’ve reached the stage that not adoring Mother Government’s Ministrations is classified as insanity much the same way it was classified in the USSR just 30 short years ago.

    2. I would say that Article III, Section 3, is right on point and addresses the point explicitly. But for a Constitutional Scholar who thinks that searching the contents of a cell phone is like searching a pack of chewing gum, and that the Senate is in “recess” when the Senate is taking a five minute bathroom break, express, clear constitutional language means nothing.

  4. First thing we do, we kill all the dissidents.

  5. Last week, the administration released the memo. It consists of 40 highly blacked-out pages


    1. Yeah, this was pretty much going to be my comment. If they blacked out 90% of the thing, they didn’t really release the memo.

  6. I have never heard President Obama say this, but it seems logical that if he thinks he can lawfully kill Americans abroad, he also thinks he can kill us here.

    Of course he thinks this, it’s a global war on terror. The US is part of the globe, so everybody is fair game. Further evidence that Obama believes in his power to murder with impunity- Remember when Rand Paul asked him and Holder point blank if they had the authority to assassinate any American any time any where, including on US soil? Remember how both dodged the question?

    1. That specifically hasn’t been denied by our government since this War on Terror started. It’s not just an Obama or D thing. Bush was identical; the next R pres will be the same.

  7. It’s not too wild a position to believe that those in power (or who seek power and are likely to get it) feel that IF they are ever unseated, they will get sent to the proverbial Island of Elba, while for the mundanes – who get uppity – they are sent to the Chateau D’If, at best, or guillotined.

    Unfortunately, as always, we get the government we deserve. Too few people fought against the Welfare/Warfare state as it was being forged (30’s), did little as it got humming along (60’s), passed by the last best chance to do something about it (80’s- and take our lumps as prior mis-allocations rebounded upon us), and now we are reaping what has been sown. If you don’t keep government in check it will become tyrannical. We had the chance(s) to stop it. Now anyone who proscribes individualism, in any pure philosophical sense, is labelled an extremist by both parties. And we haven’t even gotten to the inevitable economic corrections for our 100 years of mis-allocation. We are in for 10-20 years minimum of hard line-ism right around the corner.

  8. What we are seeing is an extremely low point in the power of Congress, which has had its power eroded slowly since FDR but much more rapidly in the past 2-3 decades. It’s telling that we rarely expect Congress to do anything these days, we just wait for the Executive or Supreme Court to weigh in as those institutions fill in the vacuum.

    No idea what can be done to reverse this trend. Most House members are in safe districts where it’s safer to be ideological than useful and the Senate’s rules for functioning slide into dysfunction.

    It’s ridiculous to me when people look at this do-nothing Congress and proclaim it a success. Yes, the branch of government closest to the people isn’t doing anything; do you think the power the government has is simply going to be disbursed back to the people? No, of course not, it’ll go to the other branches. We need an active Congress.

  9. Yes, yes, Andrew. 9/11 was an inside job. The waters of liberty are refreshed by patriots shooting down drones from the ups store.

    Dear editors, are you all currently reviewing the resume of Alex jones?

    1. I really shouldn’t feed trolls, but you have me intrigued: WTF are you even talking about?

  10. We are just naturally following in our ancient sister republic’s footsteps-Rome lasted as a republic for about 482 years (509bc-27bc) before becoming a dictatorship, they lasted longer as a republic then America has, which is quite sad considering the wealth of knowledge we have access to concerning the dangers of an overreaching government, furthermore, our constitution (however flawed) had very simple and easy instructions to avoid falling back into the monarchy trap, but unfortunately America has strayed.

  11. President is the chief executive oligarch. The Congress is a corporate oligarchy. The Supreme court is a culturally senile, corporate, political oligarchy. America’s “checked and balanced” oligarchy killed the democratic republic experiment of the United States long ago.

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