Revolution #263, March 25, 2012

Obama Administration: Judge, Jury, and Executioner

On September 30, 2011, several men driving across a remote desert in Yemen stopped for breakfast. They spread a rug on the ground and were eating dates when one of them noticed a pilotless drone above them.

They ran to their vehicle and tried to escape, but it was too late. Missiles fired from the drone—which was operated by the U.S.'s Central Intelligence Agency—hit their truck, killing seven people and leaving their bodies "totally charred." Two of the men killed, including Anwar al-Awlaki, were U.S. citizens. The men killed had not been charged, much less convicted, of any crimes.

Extrajudicial Killings

On March 5, 2012, U.S. Attorney General Eric Holder spoke at Northwestern University near Chicago. Holder did not mention the CIA assassination of al-Awlaki, but his speech was a defense and justification of the policy behind the Obama administration's "war on terror" in general, and specifically its policy on what are called "extrajudicial killings."

"Extrajudicial" does not mean there are more judges involved, or more legal examination before a killing is ordered. It means there are no judges; no legal procedure or examination. It is an action taken outside the oversight of existing law, or review by panels of judges.

The Obama/Holder policy is based on a memorandum that has never been made public. It is a dangerous and ominous escalation in the U.S. government's "war on terror" that is both morally corrupt and a brazen repudiation of longstanding principles of U.S. and international law. It also is the act of an imperialist empire deeply involved in murderous wars across the globe, and determined to stop at nothing in its efforts to defend and expand that empire. Mass opposition to this and all the other deadly crimes of the U.S. is urgently required.

Last October, a group of Obama administration officials discussed selected parts of the secret memorandum with a correspondent for the New York Times. He wrote that "the secret document provided the justification for acting (against al-Awlaki) despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis."

With the killing of al-Awlaki and the speech by Holder, the Obama administration signaled to the world that the U.S. can kill anyone, anywhere in the world, who it declares to be a "terrorist." No charges filed. No judicial review. No trial. A "finding" from the president is enough to trigger a deadly worldwide manhunt that pours out death from the skies.

If these government crimes are "legal" against U.S. citizens—who, after all, are supposed to have certain rights guaranteed by constitutional law—think what it means for people in every country across this planet. Not even the flimsy pretense of a "secret memorandum" is required to obliterate people.

The Death of Due Process

The heart of Holder's speech was his claim that "due process and judicial process are not one and the same." Due process has been a principle of U.S. law since the country's founding.

The Bill of Rights to the U.S. Constitution supposedly guarantees certain rights to people accused of crimes. In it, the 5th amendment says that "No person shall be ... deprived of life, liberty, or property, without due process of law," and the 6th states that "... the accused ... shall be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense." In other words, people accused of crimes by the government are supposedly guaranteed the right to know what they are accused of, to face their accusers in an open court, and to have a lawyer to help represent them in a trial. And everyone is supposed to be given their "day in court" before they are executed or sent to prison.

On a profound level, the right to due process has always been a sham—over the 200-plus years of this country's existence, countless people, especially people of the oppressed nationalities, have been railroaded to prison on the flimsiest of unproven charges; countless people have been gunned down by murdering police acting as judge, jury, and executioner. Due process has never been applied to the people slaughtered by the United States military in Vietnam, El Salvador, Haiti, and the many other countries it has invaded.

The laws in the U.S., the enforcement of these laws, and the use of the U.S. military have always been used to serve capitalism and to enforce the rule—the dictatorship—of the capitalist-imperialists. As Bob Avakian wrote, "the essence of what exists in the U.S. is not democracy but capitalism-imperialism. What the U.S. spreads around the world is not democracy, but imperialism and political structures to enforce that imperialism". (BAsics 1:3).

But the Obama administration's open repudiation of this longstanding tenet and legal right of U.S. law is a dramatic escalation in what the rulers of the U.S. claim to be their "right" to kill anyone who opposes them, without any restraint.

Holder's sleight of hand was to try to draw a distinction between "due process," which he claims still exists, and "judicial review," which he claims is not only unnecessary but would "endanger American lives" by causing delays in getting on with the killing.

Judicial review is the examination by judges of the laws and actions by the country's executive (President) and legislative (Congress) branches, to ensure that they abide by the country's Constitution. Judicial review is intended to make due process meaningful. After all, if the officials who perpetrate an illegal act are themselves responsible for determining whether or not it is illegal, everyone would know the whole process was a joke and cover-up.

What is the "due process" that Holder and Obama claim still exists? As reported by Reuters, "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.... 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.... Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate."

No one outside this "secret panel" knows what evidence is produced. No one knows where it comes from. People put on this government hit list have no right to appeal—often they do don't even know they're on it.

Leon Panetta, Obama's Secretary of Defense, summed it up this way: "[T]he President of the United States obviously reviews these cases, reviews the legal justification, and in the end says, go or no go."

And there's your "due process."

Targeting U.S. Citizens

Holder laid out four criteria for killing U.S. citizens: "The principle of necessity requires that the target have definite military value. The principle of distinction requires that only lawful targets—such as combatants, civilians directly participating in hostilities, and military objectives—may be targeted intentionally. Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage. Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering."

Every single word of this is hypocritical bullshit. The "principle of humanity" as applied by the United States has killed, maimed, displaced, impoverished, and made homeless millions of people in the 11 years of its "war on terror." None of these atrocities were put under the microscope of due process or judicial review.

Now Holder is saying that the Obama policy is the same towards U.S. citizens who are declared to be "terrorists" by the U.S. government. As journalist Glen Greenwald wrote, the policy developed by Obama gives the president "the authority to secretly target U.S. citizens for execution by the CIA without even charging them with a crime, notifying them of the accusations, or affording them an opportunity to respond, instead condemning them to death without a shred of transparency of judicial oversight."

Sanctioning Murder

When he was a U.S. Senator, Barack Obama denounced then-president George W. Bush's policy of indefinite detention without trial, saying that a "perfectly innocent individual could be held and could not rebut the Government's case and has no way of proving his innocence." But as president, Obama has gone much further than Bush dared to go. He has given himself a license to kill.

And the response from those in authority?

The assassination of al-Awlaki in a CIA operation was immediately praised by leading U.S. politicians. Peter King, the Republican chairman of the House Homeland Security Committee, said the killing of al-Awlaki is a "tremendous tribute" to President Barack Obama and the U.S. intelligence community. Presidential contender Mitt Romney said, "[T]he killing of Anwar al-Awlaki is a major victory in our fight against Islamist terrorism and proper justice for the numerous attacks and plots he inspired or planned against America. I commend the president, the members of the intelligence community, our service members, and our allies for their continued efforts to keep Americans safe."

Obama said in a prepared statement that the death of al-Awlaki was a "major milestone" in the U.S.'s efforts against al-Qaeda, and that others declared "terrorists" by the U.S. "will find no safe haven anywhere in the world."

But Morris Davis, who was once chief prosecutor for the U.S. government in its Guantánamo Bay torture center, hit at the truth when he said of the policy developed by Obama and defended by Holder: "I think what we are sanctioning here is murder."

Nasser al-Awlaki, the father of Anwar al-Awlaki, filed a lawsuit against the U.S. government's policy of extrajudicial assassinations before his son was killed. On December 6, 2010, a federal judge dismissed the case, saying that these killings were a "political question" for the executive branch of the government to decide, not judges.

The American Civil Liberties Union (ACLU) and the Center for Constitutional Rights, in a statement against the ruling, said that with this ruling "the government has the unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation."

And the killing continues.

Less than a month after al-Awlaki was killed, his 16-year-old son Abdulrahman, who had run away from home to try to find his father, was killed in another attack, along with a friend, age 17. A spokesman for the U.S. said that the drone strike was supposedly intended to kill a man they had identified as an "al Qaeda leader," who was not among the dead.

Abdulrahman's grandfather said to an American journalist the other murdered youth "was a 17-year-old kid, who was not an American citizen but is a human being, killed in cold blood. I cannot comprehend how my teenage grandson was killed by a Hellfire missile, how nothing was left of him except small pieces of flesh. Why? Is America safer now that a boy was killed?"

One of the youths' friends asked, "I have one question for you. Who can't America kill?"


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