America after the Constitution: Life in the age of drone wars

Would the government ever conduct drone strikes on U.S. soil? The question looms larger than ever

Topics: TomDispatch.com, Drones, Drone strikes, Drone warfare,

America after the Constitution: Life in the age of drone wars (Credit: Shutterstock)
This piece originally appeared on TomDispatch.

Terrorism (ter-ror-ism; see also terror) n. 1. When a foreign organization kills an American for political reasons.

Justice (jus-tice) n. 1. When the United States Government uses a drone to kill an American for political reasons.

How’s that morning coffee treating you? Nice and warming? Mmmm.

While you’re savoring your cup o’ joe, imagine the president of the United States hunched over his own coffee, considering the murder of another American citizen. Now, if you were plotting to kill an American over coffee, you could end up in jail on a whole range of charges including — depending on the situation — terrorism. However, if the president’s doing the killing, it’s all nice and — let’s put those quote marks around it — “legal.” How do we know? We’re assured that the Justice Department tells him so.  And that’s justice enough in post-Constitutional America.

Through what seems to have been an Obama administration leak to the Associated Press, we recently learned that the president and his top officials believe a U.S. citizen — name unknown to us out here — probably somewhere in the tribal backlands of Pakistan, is reputedly planning attacks against Americans abroad. As a result, the White House has, for the last several months, been considering whether or not to assassinate him by drone without trial or due process.

Supposedly, the one thing that’s held up sending in the drones is the administration’s desire to make sure the kill is “legal.” (Those quotes again.)



Last May, Obama gave a speech on the subject.  It was, in part, a response to growing anger in Pakistan, Yemen, and elsewhere over the CIA’s ongoing drone assassination campaigns with all their “collateral damage,” and to the White House’s reported “kill list.” In it, he insisted that any target of the drones must pose “a continuing and imminent threat to the American people.” At the time, the White House also issued a fact sheet that stated: “Lethal force must only be used to prevent or stop attacks against U.S. persons, and even then, only when capture is not feasible and no other reasonable alternatives exist to address the threat effectively.” While that sounds like a pretty imposing set of hurdles to leap, all of the “legal” criteria are determined in secret by the White House with advice from the Justice Department, but with no oversight or accountability.

Even then, it turns out that the supposedly tortured deliberations of the administration are not really necessary. Despite the president’s criteria,according to an unnamed administration official quoted by the Associated Press, Obama could make an exception to his policy and authorize the CIA to strike on a one-time basis, no matter what the circumstances. One way or another, it is Obama who decides who to kill and when.

Short-Term Questions

At this point, it’s unclear just why the Obama administration leaked its plans in reference to this errant American abroad. After all, official after official has insisted that Edward Snowden’s revelations of secret NSA documents have caused terrorists to change their communication tactics, yet the one American up to no good somewhere in the terrorist world apparently has not done so in response to the leak about his potential fate, and will remain locatable whenever needed as a target. And yet giving notice of a possible attack in advance in the media would, on the face of it, seem both counterproductive and an invitation to the very barrage of criticisms leveled by key officials at Snowden. After all, under the circumstances, an American connected with al-Qaeda wouldn’t exactly have to be a Bond villain to decide to change his behavior and his location, stay indoors or outdoors more, keep off his phone for a while or trade it in for another.

Could the administration leak have been a trick to flush the bad guy out, causing him to panic and run? Was it an elaborate ruse designed to induce widespread concern in al-Qaeda about the liabilities of having American compatriots? Was it a bone thrown to Republicans otherwise eager to paint the president as weak? Could it have been some kind of geopolitical muscle tussle with once compliant but now more assertively anti-drone Pakistan? Or could the leak have been a PSYOP on the American people, an attempt to manipulate us into feeling better about government decisions to kill American citizens by revealing the deliberative and heart-wrenching process Obama goes through?  Or could it simply have been an attempt to normalize such acts for us, to make them part of the understandable everyday background noise of a dangerous world?

The answer is: we don’t know.  Not yet anyway.

Not the First Time

The Obama administration admits to killing four Americans as part of its war on (or is it “war of”?) terror. We’ll pause here a moment for you to contemplate whether there could have been other, undocumented killings of the same sort awaiting the revelations of some future Edward Snowden or Chelsea Manning.

On May 7, 2011, a U.S. drone fired a missile in Yemen aimed at American citizen and key terror suspect Anwar al-Awlaki. The missile blew up a car with two other people in it, quickly labeled “al-Qaeda operatives” after we killed them.

Such collateral killings should be no surprise. The inaugural article by Glenn Greenwald and Jeremy Scahill at their new media venture notes that the National Security Agency regularly identifies targets for CIA assassinations based on metadata analysis and cell-phone tracking. Rather than confirming that target’s identity, the CIA is evidently ready and willing to blow a suspect away based on the location of a mobile phone he assumedly is using. In other words, people can be killed because they borrowed the wrong cell phone. (So much for a deliberative process.)

The U.S. had tried to kill al-Awlaki before, including in the Bush years — and missed. In justifying one of these assassination attempts, Obama’s counterterrorism chief, Michael Leiter,claimed that al-Awlaki actually posed a bigger threat to the U.S. “homeland” than Osama bin Laden, albeit without explanation. No matter, they finally got their man.  A follow-up strike killed al-Awlaki, and another soon after obliterated his teenage son, also in Yemen. Though no one argues that the boy was in any way linked to terrorism and no administration official has bothered to explain just why he was targeted, former White House press secretary Robert Gibbs did comment that the killing was justified as he “should have had a more responsible father.”

Couldn’t Happen Here?

Though the president and his officials go to great pains to indicate that such assassinations are only going to happen abroad, there is nothing in the carefully worded distinctions made by the White House to preclude them at home. As a start, in his criteria for killing someone extrajudicially, the president claims there is no difference between an American citizen terrorist and a foreign terrorist. A careful look back at the statements of two government officials makes it clear that thought has already gone into the question of bringing the killings home.

Remember the testimony then-FBI Director Robert Mueller gave before a House subcommittee in 2012? When asked point-blank if the president could order the killing of an American in the United States, he replied “Uh, I’m not certain whether that was addressed or not… I’m going to defer that to others in the Department of Justice.” Mueller, of course, had the option of saying flat-out, “No, no, of course the president can’t order a hit on an American here in the U.S. where the full judicial system, Constitution, and due process protections exist! Are you mad?”

The truth emerged only in 2013 when Senator Rand Paul asked point-blankwhether the president could authorize lethal force, such as a drone strike, against an American citizen in the United States. Attorney General Eric Holder fired back that while the question was “hypothetical,” the real-world answer was yes. Holder said he could imagine “an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the president to authorize the military to use lethal force within the territory of the United States.”

It’s easy enough, in fact, to imagine the sort of scenarios that might lend themselves to such an act: a ticking time bomb, a killer believed to have anthrax and on the loose, a suspected dirty-bomb maker in a desolate location, terrorists with a bus full of children on a mountain top. Imagine a slippery slope and… presto! You’re there.

They’ve thought about it. They’ve set up the legal manipulations necessary to justify it. The broad, open-ended criteria the president laid out for killing suspected terrorists exposes the post-Constitutional stance our government has already prepared for. All that’s left to do is pull the trigger.

Nostalgia for the Fifth Amendment

It’s still possible to remember, almost nostalgically, how the Fifth Amendment used to guarantee Americans due process. The key phrase was indeed that “due process.” It meant the government could not take away your property or imprison or execute you without first allowing you a chance to defend yourself. You would have your day in court with a lawyer and a jury of your peers to make the final decision. This would all be quite public and the people involved would be held accountable for their actions. The Fifth was meant by those who wrote it as a check on the ultimate in government excess: the purposeful taking of citizens’ lives. Today, it increasingly seems an artifact of a quaint past, as seemingly lost to history as the corded phone or manual typewriter.

Attorney General Eric Holder publicly rewrote the Fifth Amendment in 2012, declaring, in a veiled reference to al-Awlaki, “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’” In other words, in a pinch, skip the courts.  In this way, Holder gave us a peak behind the White House curtain, making clear that the president’s personal and secret decision to kill an American, perhaps made over morning coffee, was, in his opinion, good enough to make everything legal.

The due process question Holder dismissed so casually still looms large over al-Awlaki’s murder. Prior to the killing, attorneys for his father tried to persuade a U.S. District Court to issue an injunction preventing the government from killing him in Yemen. A judge dismissed the case, ruling that the father did not have “standing” to sue and that government officials themselves were immune from lawsuits for actions carried out as part of their official duties.

This was the first time a father had sought to sue the U.S. government to prevent it from killing a son without trial. The judge did call the suit “unique and extraordinary,” but ultimately passed on getting involved.  He wrote instead that it was up to the elected branches of government, not the courts, to determine if the United States has the authority to extrajudicially murder its own citizens.

The judge’s position was revealing of our moment. The extrajudicial killing of an American citizen seemed to him to be nothing but a political question to be argued out in Congress and the White House, not something intimately woven into the founding documents of our nation. The judge was not alone in his characterization of the problem. Mike Rogers, chair of the House Intelligence Committee, complained that the killing of more terror suspects in a similar manner has been held back by “self-imposed red tape.”

There are, however, no footnotes in the Fifth Amendment, no caveats, no secret memos, no exceptions for terrorism, mass rape, child torture, or any other horror the U.S. has confronted in its 238 years of existence. Such addendums to the Fifth were unnecessary, because in the beautiful preciseness of Lincoln’sphrasing at Gettysburg, ours is “a government of the people, by the people, for the people,” one made up of us, beholden to us, and whose purpose is to serve us.

Such a government would be incapable of killing its own citizens without due care, debate, and open trial. Those actions would violate the sacred convent of trust between a people and their government in a democracy, the “consent of the governed,” and delegitimize the government itself.

That last point is worth a closer look, because it makes clear what murder-by-decree really represents in post-Constitutional America. The phrase “consent of the governed” first appears in the Declaration of Independence, the document by which the United States declared itself no longer under the governance of the British king. The Declaration makes clear that a government’s moral right to use state power is only justified and legal when derived from the people over which that power is exercised. Such consent is the opposite of the divine right of kings, the philosophy under which the British ruled colonial Americans.  Its foundational principle was obedience to government and its edicts and decisions, even on issues of life and death, as a religious and moral obligation.

Following the more philosophical Declaration of Independence, the Bill of Rights was a practical exercise written to address directly the specific injustices of rule by royal decree. By turning its back on key elements of our founding, Washington, it seems, has brought us full circle.

Life in Post-Constitutional America

These days in the pseudo-debates about drone killings in the mainstream media, such changes are treated as matters of no great significance. On the day that the president’s latest plans for the murder of a fellow citizen in the distant tribal backlands of Pakistan first appeared, they caused little stir. The headlines were instead dominated by Olympic gossip and an impending ice storm in Atlanta. Killings extrajudicially mandated by the White House? The Fifth Amendment?  Maybe if the target were Shaun White in Sochi, more people would have cared.

At the moment, we are threatened with a return to a pre-Constitutional situation that Americans would once have dismissed out of hand, a society in which the head of state can take a citizen’s life on his own say-so. If it’s the model for the building of post-Constitutional America, we’re in trouble. Indeed the stakes are high, whether we notice or not.

The question is: How far will post-Constitutional America stray from the nation so conceived in the Declaration of Independence and the Bill of Rights? Because in the twenty-first century, the midnight knock on the door may come not from the King’s men, but from the sky.

Peter Van Buren blew the whistle on State Department waste and mismanagement during Iraqi reconstruction in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A TomDispatch regular, he writes about current events at his blog, We Meant Well. His new book, Ghosts of Tom Joad: A Story of the #99Percent, has just been published.

More Related Stories

Featured Slide Shows

  • Share on Twitter
  • Share on Facebook
  • 1 of 14
  • Close
  • Fullscreen
  • Thumbnails

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and Adam, "Pilot"

    One of our first exposures to uncomfortable “Girls” sex comes early, in the pilot episode, when Hannah and Adam “get feisty” (a phrase Hannah hates) on the couch. The pair is about to go at it doggy-style when Adam nearly inserts his penis in “the wrong hole,” and after Hannah corrects him, she awkwardly explains her lack of desire to have anal sex in too many words. “Hey, let’s play the quiet game,” Adam says, thrusting. And so the romance begins.

    13 of "Girls'" most cringeworthy sex scenes

    Marnie and Elijah, "It's About Time"

    In an act of “betrayal” that messes up each of their relationships with Hannah, Marnie and Elijah open Season 2 with some more couch sex, which is almost unbearable to watch. Elijah, who is trying to explore the “hetero side” of his bisexuality, can’t maintain his erection, and the entire affair ends in very uncomfortable silence.

    13 of "Girls'" most cringeworthy sex scenes

    Marnie and Charlie, "Vagina Panic"

    Poor Charlie. While he and Marnie have their fair share of uncomfortable sex over the course of their relationship, one of the saddest moments (aside from Marnie breaking up with him during intercourse) is when Marnie encourages him to penetrate her from behind so she doesn’t have to look at him. “This feels so good,” Charlie says. “We have to go slow.” Poor sucker.

    13 of "Girls'" most cringeworthy sex scenes

    Shoshanna and camp friend Matt, "Hannah's Diary"

    We’d be remiss not to mention Shoshanna’s effort to lose her virginity to an old camp friend, who tells her how “weird” it is that he “loves to eat pussy” moments before she admits she’s never “done it” before. At least it paves the way for the uncomfortable sex we later get to watch her have with Ray?

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and Adam, "Hard Being Easy"

    On the heels of trying (unsuccessfully) to determine the status of her early relationship with Adam, Hannah walks by her future boyfriend’s bedroom to find him masturbating alone, in one of the strangest scenes of the first season. As Adam jerks off and refuses to let Hannah participate beyond telling him how much she likes watching, we see some serious (and odd) character development ... which ends with Hannah taking a hundred-dollar bill from Adam’s wallet, for cab fare and pizza (as well as her services).

    13 of "Girls'" most cringeworthy sex scenes

    Marnie and Booth Jonathan, "Bad Friend"

    Oh, Booth Jonathan -- the little man who “knows how to do things.” After he turns Marnie on enough to make her masturbate in the bathroom at the gallery where she works, Booth finally seals the deal in a mortifying and nearly painful to watch sex scene that tells us pretty much everything we need to know about how much Marnie is willing to fake it.

    13 of "Girls'" most cringeworthy sex scenes

    Tad and Loreen, "The Return"

    The only sex scene in the series not to feature one of the main characters, Hannah’s parents’ showertime anniversary celebration is easily one of the most cringe-worthy moments of the show’s first season. Even Hannah’s mother, Loreen, observes how embarrassing the situation is, which ends with her husband, Tad, slipping out of the shower and falling naked and unconscious on the bathroom floor.

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and the pharmacist, "The Return"

    Tad and Loreen aren’t the only ones to get some during Hannah’s first season trip home to Michigan. The show’s protagonist finds herself in bed with a former high school classmate, who doesn’t exactly enjoy it when Hannah puts one of her fingers near his anus. “I’m tight like a baby, right?” Hannah asks at one point. Time to press pause.

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and Adam, "Role-Play"

    While it’s not quite a full-on, all-out sex scene, Hannah and Adam’s attempt at role play in Season 3 is certainly an intimate encounter to behold (or not). Hannah dons a blond wig and gets a little too into her role, giving a melodramatic performance that ends with a passerby punching Adam in the face. So there’s that.

    13 of "Girls'" most cringeworthy sex scenes

    Shoshanna and Ray, "Together"

    As Shoshanna and Ray near the end of their relationship, we can see their sexual chemistry getting worse and worse. It’s no more evident than when Ray is penetrating a clothed and visibly horrified Shoshanna from behind, who ends the encounter by asking if her partner will just “get out of me.”

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and Frank, "Video Games"

    Hannah, Jessa’s 19-year-old stepbrother, a graveyard and too much chatting. Need we say more about how uncomfortable this sex is to watch?

    13 of "Girls'" most cringeworthy sex scenes

    Marnie and Desi, "Iowa"

    Who gets her butt motorboated? Is this a real thing? Aside from the questionable logistics and reality of Marnie and Desi’s analingus scene, there’s also the awkward moment when Marnie confuses her partner’s declaration of love for licking her butthole with love for her. Oh, Marnie.

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and Adam, "Vagina Panic"

    There is too much in this scene to dissect: fantasies of an 11-year-old girl with a Cabbage Patch lunchbox, excessive references to that little girl as a “slut” and Adam ripping off a condom to ejaculate on Hannah’s chest. No wonder it ends with Hannah saying she almost came.

  • Recent Slide Shows

Comments

Loading Comments...