Monday, March 5, 2012

Holder to U.S.: No Rule Of Law Needed

Eric Holder, who called his fellow Americans "cowards" a few years back, has no qualms about telling them they aren't entitled to what the Constitution of the United States plainly guarantees persons the government suspects of treason. The Attorney General of the United States has gone on record backing summary killings of Americans abroad under something at least as specious as the "enemy combatant" theory so lambasted when advanced by George Bush when he sought to deny due process to Guantanamo detainees.

A little background, first. The Constitution is a very short document, enumerating a small number of powers and allocating them across the three branches of the federal government and providing one mechanism for amending the Constitution (whether proposed by Congress or by a convention of the states, an amendment requires ratification by 3/4 of the states). The document grants power to Congress "[t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations", but defines no crimes except treason. Treason is given a definition and a standard of proof that is very specific. To prove treason under U.S. law it is necessary to show that a defendant levied war against the United States or gave aid and comfort to the enemy, and this proof must include two witnesses to the same overt act.

For a firebrand inciting violence against the United States on the Internet, this proof is presumably within the reach of a determined prosecutor: one would presumably gather a couple of readers familiar with the traitor's works to testify – for example – that the works were really his, were consistent with his body of work, that the traitor had taken credit for them, and that the exhibit before the court (exhorting violence against the United States) is a true and correct copy of the defendant's work. In the United States, a defendant has a right against self-incrimination (in the Fifth Amendment), but there exist jurisdictions in the United States in which a trial in absentia is permitted. Surely effort to murder United States citizens in attacks abroad and aimed at the homeland could become subjects of trials in which genuine effort is made to satisfy due process – if through no other method than ensuring public oversight of the decision to kill in the name of the law.

But not for Eric Holder. Today, Eric Holder blatantly said that when a federal agency suspects an American living abroad of plotting to kill Americans, it is A-OK to kill them without trial. His conclusion that government-backed killings under these conditions "would be lawful" without trial is simply mind-boggling.

Has he read the Constitution he's supposedly there to uphold? Has his Commander-in-Chief?

There's a way to do this, and it's got to comport with our written law if the rule of law is to have meaning. Instead, what we get are circular explanations why treason executions are okay without treason proof or even a trial:
"Some have called such operations 'assassinations.' They are not, and the use of that loaded term is misplaced," [Holder] said. "Assassination are unlawful killings," while killings under the conditions he outlined would be lawful.
"Holder: Not 'assassination' to target Americans in terror hunt" by Terry Frieden
The "conditions" seem designed to invoke something like a self-defense defense to the unlawful execution claim, as they turn on a decision by some unknown non-juror working for the government deciding "that the individual poses an imminent threat of violent attack against America[.]" Another condition is circular: a federal agency determination that "the operation would be conducted within the principles of the law of war" assumes that federal bureaucrats are able to determine that the suspect is a member of an enemy body with which the United States is at war, without actually trying the target for treason. Yet, determining that the individual is levying war against the United States is the very essence of treason under U.S. law.

Killing an American abroad in an attack against some other war target – like an training camp or communications center identified by intelligence assets during a time of war – raises no special legal bar. The (possibly posthumous) discovery that enemy combatant casualties included a U.S. national is quite different, however, than having CIA contractors fly an attack drone outside of the combat zone of an undeclared war to deliberately pick out a specific target American from among civilians in a community because the target American is accused – on however convincing a pile of evidence – of being a traitor. Treason has a standard of proof, and criminal defendants have well-defined rights, and the United States purports to be a nation led by the rule of law.

When we lose the law, we lose the rights the law purports to protect, and our freedoms cease being priceless because they become for sale at the price of our next election.

(Bonus question: does anyone have a line on whether Eric Holder was ever involved in an effort to prevent an Eastern Bloc defector from obtaining a jury trial after he arrived in the West, and was to be prosecuted for skyjacking (his escape method)? I heard a story along these lines and have become interested in whether there's any veracity to it.)


angry listmaker said...

I'm sure the attorney whom you reference in the first couple of paragraphs is a truly trustworthy guy. And I'm sure that you can personally can legitimately consider his words as evidence of Eric Holder's character. But in the context of this otherwise well written and supported piece, the first 400 words serve the reader no benefit.

Otherwise, I found the article informative and thought provoking. I wish they would release the "still-secret opinion" where this is justified. Surely there is a side of the argument that we could not hypothesize. Although it might be easy enough to justify this non-assassination according to Holder's argument. The implication of the ability to not assassinate anyone without some trial is quite scary.

Jaded Consumer said...

While it might be interesting to see the "secret opinion" I have strong suspicion that the reason we haven't heard a better argument than Holder articulated is that there is no better argument. The justification is almost certainly expediency.

I definitely appreciate your criticism of the opening paragraphs. I struggled with whether to discuss the story at all. However, especially in light of the current news on Holder's views, I am interested in fishing for any debunking information -- or corroboration -- that may be known to anyone else.

I'm open to any thoughts one might have, including moving the "oral history" to a different post explicitly inviting information debunking or authenticating it.

Thanks for reading.