Peter Van Buren: Drone-Killing the Fifth Amendment

Yves here. This post on the Administration’s efforts to justify its official policy of murder by drone shows how due process is dead in America. That may seem a bit far afield of Naked Capitalism’s beat. But the systematic assault on the Constitution is another, even more troubling, manifestation of what we see operating in the financial sphere: that hard-won protections for ordinary citizens are being stripped away, so that those who have access to resources (whether via personal wealth or institutional authority) can operate unfettered, to increase their power and ability to plunder even more.

By Peter Van Buren, who blew the whistle on State Department waste and mismanagement during Iraq Reconstruction in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. He writes about current events at his blog, We Meant Well. Van Buren’s new book, Ghosts of Tom Joad: A Story of the #99Percent, is available now. Cross posted from TomDispatch

You can’t get more serious about protecting the people from their government than the Fifth Amendment to the Constitution, specifically in its most critical clause: “No person shall be… deprived of life, liberty, or property, without due process of law.” In 2011, the White House ordered the drone-killing of American citizen Anwar al-Awlaki without trial. It claimed this was a legal act it is prepared to repeat as necessary. Given the Fifth Amendment, how exactly was this justified? Thanks to a much contested, recently released but significantly redacted — about one-third of the text is missing — Justice Department white paper providing the basis for that extrajudicial killing, we finally know: the president in Post-Constitutional America is now officially judge, jury, and executioner.

Due Process in Constitutional America

Looking back on the violations of justice that characterized British rule in pre-Constitutional America, it is easy to see the Founders’ intent in creating the Fifth Amendment. A government’s ability to inflict harm on its people, whether by taking their lives, imprisoning them, or confiscating their property, was to be checked by due process.

Due process is the only requirement of government that is stated twice in the Constitution, signaling its importance. The Fifth Amendment imposed the due process requirement on the federal government, while the Fourteenth Amendment did the same for the states. Both offer a crucial promise to the people that fair procedures will remain available to challenge government actions. The broader concept of due process goes all the way back to the thirteenth-century Magna Carta.

Due process, as refined over the years by the Supreme Court, came to take two forms in Constitutional America. The first was procedural due process: people threatened by government actions that might potentially take away life, liberty, or possessions would have the right to defend themselves from a power that sought, whether for good reasons or bad, to deprive them of something important. American citizens were guaranteed their proverbial “day in court.”

The second type, substantive due process, was codified in 1938 to protect those rights so fundamental that they are implicit in liberty itself, even when not spelled out explicitly in the Constitution. Had the concept been in place at the time, a ready example would have been slavery. Though not specifically prohibited by the Constitution, it was on its face an affront to democracy. No court process could possibly have made slavery fair. The same held, for instance, for the “right” to an education, to have children, and so forth. Substantive due process is often invoked by supporters of same-sex unions, who assert that there is a fundamental right to marry. The meaning is crystal clear: there is an inherent, moral sense of “due process” applicable to government actions against any citizen and it cannot be done away with legally. Any law that attempts to interfere with such rights is inherently unconstitutional.

Al-Awlaki’s Death

On September 30, 2011, on the order of the president, a U.S. drone fired a missile in Yemen and killed Anwar al-Awlaki. A Northern Virginia Islamic cleric, in the aftermath of 9/11 he had been invited to lunch at the Pentagon as part of a program to create ties to Muslim moderates. After he moved to Yemen a few years later, the U.S. accused him of working with al-Qaeda as a propagandist who may have played an online role in persuading others to join the cause. (He was allegedly linked to the “Underwear Bomber” and the Fort Hood shooter.) However, no one has ever accused him of pulling a trigger or setting off a bomb, deeds that might, in court, rise to the level of a capital crime. Al-Awlaki held a set of beliefs and talked about them. For that he was executed without trial.

In March 2012, Attorney General Eric Holder made quite a remarkable statement about the al-Awlaki killing. He claimed “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, according to the top legal authority in the nation, a White House review was due process enough when it came to an American citizen with al-Qaeda sympathies. In this, though it was unknown at the time, Holder was essentially quoting a secret white paper on that killing produced by the Office of Legal Counsel, located in the department he headed.

In June 2014, after a long court battle to shield the underlying legal basis for the killing, the Obama administration finally released a redacted version of that classified 2010 white paper. In the end, it did so only because without its release key senators were reluctant to confirm the memo’s author, David Barron, who had been nominated by President Obama to serve on the First Circuit Court of Appeals. (Once it was made public, Barron was indeed confirmed.)

The importance of the white paper to understanding Post-Constitutional America cannot be understated. Despite all the unconstitutional actions taken by the government since 9/11 — including striking violations of the Fourth Amendment — this paper is to date the only glimpse we have of the kind of thinking that has gone into Washington’s violations of the Bill of Rights.

Here’s the terrifying part: ostensibly the result of some of the best legal thinking available to the White House on a issue that couldn’t be more basic to the American system, it wouldn’t get a first-year law student a C-. The arguments are almost bizarrely puerile in a document that is a visibly shaky attempt to provide cover for a pre-determined premise. No wonder the administration fought its release for so long. Its officials were, undoubtedly, ashamed of it. Let’s drill down.

Death by Pen

For the killing of an American citizen to be legal, the document claims, you need one essential thing: “an informed, high-level official of the U.S. government [who] has determined that the targeted individual poses an imminent threat of violent attack against the United States.” In addition, capture must be found to be unfeasible and the act of killing must follow the existing laws of war, which means drones are okay but poison gas is a no-no.

The rest of the justification in the white paper flows from that premise in a perverse chain of ankle-bone-connected-to-the-leg-bone logic: the president has the obligation to protect America; al-Qaeda is a threat; Congress authorized war against it; and being in al-Qaeda is more relevant than citizenship (or as the document crudely puts it, “citizenship does not immunize the target”). International borders and the sovereignty of other nations are not issues if the U.S. determines the host nation is “unwilling or unable to suppress the threat posed by the individual targeted.” Basically, it’s all an extension of the idea of self-defense, with more than a dash of convenience shaken in.

When the white paper addresses the Fifth Amendment’s right to due process, and to a lesser extent, the Fourth Amendment’s right against unwarranted seizure (that is, the taking of a life), it dismisses them via the “balancing test.” Not exactly bedrock constitutional material, it works this way: in situations where the government’s interest overshadows an individual’s interest, and the individual’s interest isn’t that big a deal to begin with, and a mistake by the government can later be undone, the full due process clause of the Fifth Amendment need not come into play.

The three-point balancing test cited by the white paper as conclusive enough to justify the extrajudicial killing of an American comes from a 1976 Supreme Court case, Mathews v. Eldridge. There, the court held that an individual denied Social Security benefits had a right to some form of due process, but not necessarily full-blown hearings. In Anwar al-Awlaki’s case, this translates into some truly dubious logic: the government’s interest in protecting Americans overshadows one citizen’s interest in staying alive. Somehow, the desire to stay alive doesn’t count for much because al-Awlaki belonged to al-Qaeda and was in the backlands of Yemen, which meant that he was not conveniently available by capture for a trial date. Admittedly, there’s no undoing death in a drone killing, but so what.

The white paper also draws heavily on the use of the balancing test in the case of Hamdi v. Rumsfeld, in which the U.S. rendered from Afghanistan Yaser Hamdi, a Saudi-American citizen, and sought to detain him indefinitely without trial. After a long legal battle that went to the Supreme Court, the balance test was applied to limit — but not fully do away with — due process. Despite limiting Hamdi’s rights in service to the war on terror, the court was clear: Yaser Hamdi should have a meaningful opportunity to challenge his status. Fearing that giving him his moment in court would expose the brutal reality of his capture, interrogation, and detention, the U.S. government instead released him to Saudi Arabia.

Hamdi’s case dealt with procedural questions, such as whether he should be allowed a trial and if so, under what conditions. As with Mathews v. Eldridge, Hamdi never focused on issues of life and death. Cases can be (re)tried, prisoners released, property returned. Dead is dead — in the case of al-Awlaki that applies to the drone’s target, the balance test, and the Fifth Amendment itself.

What Do Words Mean in Post-Constitutional America?

Having dispensed with significant constitutional issues thanks to some exceedingly dubious logic, the white paper returns to its basic premise: that a kill is legal when that “informed, high-level official” determines that an “imminent threat” to the country is involved. In other words, if the president is convinced, based on whatever proof is provided, he can order an American citizen killed. The white paper doesn’t commit itself on how far down the chain of “high-level officials” kill authority can be delegated. Could the Secretary of the Interior, for instance, issue such an order? He or she is, after all, eighth in the line of succession should the president die in office.

The white paper does, however, spend a fair amount of time explaining how the dictionary definitions of “imminent” and “immediate” do not apply. For kill purposes, it says, the U.S. must have “clear evidence that a specific attack on U.S. persons will take place in the immediate future.” However, the paper goes on to explain that “immediate” can include a situation like al-Awlaki’s in which a person may or may not have been engaged in planning actual attacks that might not be launched for years, or perhaps ever. The paper claims that, since al-Qaeda would prefer to attack the U.S. on a continual basis, any planning or forethought today, however fantastical or future-oriented, constitutes an “imminent” attack that requires sending in the drones.

And if, as perhaps the author of the paper suspected, that isn’t really enough when faced with the bluntness of the Constitution on the issue, the white paper haphazardly draws on the public authority justification. According to this legal concept, public authorities can, in rare circumstances, violate the law  — a cop can justifiably kill a bad guy under certain conditions. By extension, the white paper argues, the government of the United States can drone-kill a citizen who is allegedly a member of al-Qaeda. The white paper conveniently doesn’t mention that police shootings are subject to judicial review, and those who commit such unlawful acts can face punishment. The laws behind such a review are unclassified and public, not the rationed fodder of a redacted white paper.

For the final nail in the coffin of some American citizen, the white paper concludes that, Fifth Amendment violation or not, its arguments cannot be challenged in court. In cases of “foreign policy,” courts have traditionally almost always refused to intervene, holding that they are in the realm of the executive branch in consultation, as required, with Congress. Killing an American abroad, the white paper insists, is a foreign policy act and so none of any courts’ business.


Substantive due process legally applies only to legislation, and it is highly unlikely that the Obama administration will seek legislative sanction for its kill process. So it is in one sense not surprising that the white paper makes no mention of it. However, looking at what we can read of that redacted document through the broader lens of substantive due process does tell us a lot about Post-Constitutional America. In Constitutional America, the idea was that a citizen’s right to life and the due process that went with it was essentially an ultimate principle that trumped all others, no matter how bad or evil that person might be. What is important in the white paper is not so much what is there, but what is missing: a fundamental sense of justness.

As medieval kings invoked church sanction to justify evil deeds, so in our modern world lawyers are mobilized to transform government actions that spit in the face of substantive due process — torture, indefinite detention without charge, murder — into something “legal.” Torture morphs into acceptable enhanced interrogation techniques, indefinite detention acquires a quasi-legal stance with the faux-justice of military tribunals, and the convenient murder of a citizen is turned into an act of “self-defense.” However unpalatable Anwar al-Awlaki’s words passed on via the Internet may have been, they would be unlikely to constitute a capital crime in a U.S. court. His killing violated the Fifth Amendment both procedurally and substantively.

Despite its gravity, once the white paper was pried loose from the White House few seemed to care what it said. Even the New York Times, which had fought in court alongside the ACLU to have it released, could only bring itself to editorialize mildly that the document offered “little confidence that the lethal action was taken with real care” and suggest that the rubber-stamp secret Foreign Intelligence Surveillance Court be involved in future kill orders. The ACLU’s comments focused mostly on the need for more documentation on the kills. Meanwhile, a majority of Americans, 52%, approve of drone strikes, likely including the one on Anwar al-Awlaki.

The Kind of Country We Live In

We have fallen from a high place. Dark things have been done. Imagine, pre-9/11, the uproar if we had learned that the first President Bush had directed the NSA to sweep up all America’s communications without warrant, or if Bill Clinton had created a secret framework to kill American citizens without trial. Yet such actions over the course of two administrations are now accepted as almost routine, and entangled in platitudes falsely framing the debate as one between “security” and “freedom.” I suspect that, if they could bring themselves to a moment of genuine honesty, the government officials involved in creating Post-Constitutional America would say that they really never imagined it would be so easy.

In one sense, America the Homeland has become the most significant battleground in the war on terror. No, not in the numbers of those killed or maimed, but in the broad totality of what has been lost to us for no gain. It is worth remembering that, in pre-Constitutional America, a powerful executive — the king — ruled with indifference to the people. With the Constitution, we became a nation, in spirit if not always in practice, based on a common set of values, our Bill of Rights. When you take that away, we here in Post-Constitutional America are just a trailer park of strangers.

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  1. profoundlogic

    Not sure why the FAA isn’t all over this. Surely murder by drone qualifies as a commercial enterprise.

  2. John

    Recidivism is a vexing problem within the US police state. People in authority don’t want to deal with those they see as threats — ever again.

    It is not just the President who ignores the 5th Amendment, but anyone within the legal system that has a finger on the trigger. In our neighborhoods it is a fact of life. We see on TV police regularly violate due process with people of color in the name of security or safety. The law invariably protects these transgressions because, well, town councils hired lawyers who could do a good of writing legal statutes that outflank the Constitution. There is little outrage from the majority of the public because they feel the defendant had it coming.

  3. Ulysses

    I fear that September 11, 2001 may turn out to be just as dangerous for humanity as February 27, 1933 when the Reichstag burned in Berlin. We must not act as a trailer park full of strangers here in post-Constitutional America. We must support each other unconditionally as we struggle to reclaim our rights.

    This mutual support will require that we on the left agree to disagree with potential allies on the right as we struggle together to restore our Bill of Rights. As Ralph Nader said:

    “It’s clear where the Left-Right disagree . . . but the areas of agreement are very fundamental to our democratic society, to our constitution, sense of civil liberties and civil rights, and above all, to the balance of power between real people and giant multinational corporations . . . ”

    1. Jim Haygood

      ‘That classified 2010 white paper [was released] only because key senators were reluctant to confirm the memo’s author, David Barron to serve on the First Circuit Court of Appeals. (Once it was made public, Barron was indeed confirmed.)’

      It is no accident that flunkeys who help advance executive power are rewarded with promotions to appellate courts, where they can continue rubber-stamping executive abuses.

      It would be an extremely interesting test of what remains of the U.S. judicial system if a New Mexico grand jury could be induced to indict Obama for the murder of al-Awlaki, a native of Las Cruces.

      New Mexico abolished the death penalty in 2009, so the jury would only be considering incarceration, not strapping his ass on a gurney and putting him to sleep for good.

      1. wbgonne

        The federal judiciary is abominable. In 30 years I have witnessed an accelerating decline in civil liberties and human rights in service to authoritarianism and property interests. Barron’s nomination and confirmation is the coup de grace. Obama’s very own John Yoo. But Yoo only got a professorship, while Obama’s authoritarian enabler gets a lifetime appointment on the federal appellate bench. The More Effective Evil, indeed.

        1. James Levy

          Ah, but Bybee who wrote that sophistic garbage with Yoo did get a federal judgeship 9th Circuit). Remember, this is a bipartisan assault.

          1. wbgonne

            Good point re: Bybee. Absolutely bipartisan like most of DC’s horrid policies. Nowadays the most terrifying announcments from Washington begin, “We are pleased to announce that we have reached a bipartisan agreement to …”

            1. beene

              Since it has been the left pushing the right ever further right since 1970s it is time to do all we can to defeat the left, so we can return to a balance of government authority.

              1. James Levy

                What did the Left have to do with the torture memos, the drone memos, the PATRIOT Act, the AUMF, or the revised FISA laws? Please clarify for a bewildered reader.

              2. RepubAnon

                The Republicans as Oliver Hardy to the Democrats’ Stan Laurel? “Now look what you’ve made me do…”

        2. Sluggeaux

          The over-production of law degrees in the wake of the creation of Sallie Mae in the 1970’s has led to a lemming-like abandonment in our legal system of the quaint notions of “Objectivity” “Fiduciary duty” “Impartiality” and “Conflict of Interest” in favor of “Telling the Client What They Want to Hear and Helping the Client Avoid the Letter and Spirit of the Law” has led to the utter debasement of the legal profession.

          Having spent 6 years undergoing judicial vetting at the state level under both Republicans and Democrats, I can attest from bitter personal experience that “Objectivity” and “Impartiality” are currently considered deal-breakers by the political classes making judicial appointments.

  4. DolleyMadison

    Thank you for this…lack of due process is THE number one reason our country thrived and lack of such is the weapon being used to destroy us. We have wholesale looting of private property by banks via “non judicial” processes, we have para military police breaking into homes and shotting dogs and infants, government agencies destroying evidence of conspiracies against its own citizens rights with impunity….I am heartbroken and filled with despair.I just don’t see how we can reclaim our freedom when no one seems to even miss it.

  5. EoinW

    I’m not so sure the timing matters. The hypocrisy in dealing with Saddam was astounding, yet completely acceptable to the general public. Plus the outcry over the shooting down of the Iranian airbus was remarkably muted. Weren’t those responsible eventually given medals? Thus I don’t see much upset over NSA spying beginning a couple of decades earlier. Nor Clinton having US citizens killed. After all, they’d control the narrative then as well and describe matters in just the right way for most Americans to go along with it. Remember Kosovo happened under Clinton. Did anyone object? Didn’t matter in the end when they declared victory. It was the same Baby Boomer run world 25 years ago and just as inconvenient to challenge authority then as it is now.

    As for falling from a high place, let be honest here. Until recent times the US elite targeted people in the developing world through monsterous neo-liberal experiments or wars. Nearly all Americans – and westerners as we all perceived ourselves to be benefiting hanging onto America’s coat tail. – were perfectly happy with this arrangement. It never occurred to anyone that empowering such psychopaths could come back to haunt us. Yet it was actually pretty dumb not to realize they’d eventually turn on their own.

    I guess we can attain any high place our heart desires when we combine apathy and ignorance.

  6. Bobito

    It’s also important to insist that these abuses are perpetrated by both political parties. Obama is as bad as Bush when it comes to destorying civil rights and liberties and abuses in foreign lands.

  7. TedWa

    This has always bothered me. Al-Awaki was an American citizen and now we know he was at a dinner at the Pentagon post 9/11. Was he actually working for the CIA and about to blow the whistle on what was really going on? We all know how this government feels about whistleblowers, and the truth. Obama’s perverse interpretations of Constitution law are truly Orwellian. “Imminent” can mean any time in the future, not what any sane person would consider imminent. I still couldn’t get over Obama’s cold comments on the killing of Al-Awaki son, that had done

  8. Sluggeaux

    This is an important piece.

    I have been a lawyer for 30 years and have watched the erosion of Due Process of Law in our society — drone killings, bogus securities, and foreclosure frauds are all simply different facets of the same fundamental need on the part of the fraternity brothers of the Military Industrial Complex for expediency as they loot the people and resources of the earth to briefly sate their voracious narcissism (they’re mostly brothers, but our Meg Whitmans and Hillary Clintons do a darned good imitation of them). The constitutional concept of Due Process of Law as defined by the Fifth Amendment was found to be “too hard” by earlier generations, and after a bloody civil war the concept had to be repeated in the Fourteenth Amendment. Today, 150 years after the Due Process Clause had to be repeated, we have White Papers by self-entitled soon-to-be federal judges telling us that Due Process of Law is “too hard” and as a constitutional principle may be crumpled up and chucked in the gutter in order to more expeditiously feed the Beast of war without end. We are pathetic.

    1. wbgonne

      “I have been a lawyer for 30 years and have watched the erosion of Due Process of Law in our society”

      Same here. it is terrifying what passes for Due Process in the federal courts today. If one can even get into court to begin with. Habeas corpus was obliterated under Clinton and Obama has extended Bush’s abuses without meaningful challenge. Bipartisan totalitarianism with show elections just like the old Soviet Union.

      1. RUKidding

        I’ve worked in the legal system (not an attorney), including for a time in the Fed Court system, for over 30 years. Agree with witnessing the erosion, plus witnessing Fed judges, especially, being appointed mainly for their complete lack of objectivity (which was not always the case) – IOW appointed to be judicial activitists serving the needs of the 1%/MIC/Surveillance State/whatever.

        Bush v. Gore, IMO, was a coup. The Constitution was ripped up & used for toilet paper.

        US citizens mostly unaware & incurious. Don’t care. Hard to awaken anyone, esp if they have no grounding in the law and don’t understand what I see with my own lying eyes. Most citizens believe that Al-Alawki, like Saddam Hussein, “had it coming,” so it’s all good, dude.

        What 5th Amendment?? What does that mean anymore??

        1. wbgonne

          No one seems to care about much of anything. Americans are really about to come in for a hard landing. By the time we wake up the damage will already be done. Or, like AGW, locked in. Oops!

          1. OpenThePodBayDoorsHAL

            As the article states, “the broad totality of what has been lost to us for no gain”. If we had somehow traded America for something, actual security, treasure, repute, that would be one thing. Instead we have neither the security, NOR the freedom NOR the money that’s been pissed away Peeping Tomm’ing on every American, destroying our reputation in the world, and pretending to look for boogiemen under every bed. Americans used to be a brave and principled people, not so much any more. Today Lady Liberty is a bag lady rummaging in the dumpster behind WalMart, talking to herself. It’s sad.

  9. TedWa

    This has always bothered me. Al-Awaki was an American citizen and now we know he was at a dinner at the Pentagon post 9/11. Was he actually working for the CIA and about to blow the whistle on what was really going on? We all know how this government feels about whistleblowers, and the truth. Obama’s perverse interpretations of Constitution law are truly Orwellian. “Imminent” can mean any time in the future, not what any sane person would consider imminent.

    It was Obama who insisted American citizens be included in the NDAA.

    I still can’t get over Obama’s cold comments on the killing of Al-Awaki 17 year old son, also an American citizen, that had done ABSOLUTELY NOTHING WRONG, he was not linked to any terrorism groups. He said something along the lines of “He should have known better than to be born to such a father”. That was the reason for his droning??!! That is insane. Or were they afraid that the father revealed who he was really working for and the government had to tie up any possible loose ends?

    Obama should be impeached but not for the reasons the Republicans harp on. The Republicans, in their feigned and staged outrage, illustrate the bad joke government has become. They all serve 1 master and it isn’t us. I fear for this country when people keep voting the really bad actors into office again and again.

  10. Banger

    Assassinating U.S. citizens (or anyone else) has been a part of U.S. policy since, at least, WWII and the establishment of the National Security State. Legally, however the State had no right to assassinate or deprive citizens of life and property but, as a practical affair, the State found ways to legally and extra-legally do so. For example, prosecuting people on trumped up charges and putting them before kangaroo courts has been a part of our tradition for quite some time, particularly with the rise of the labor movement in the late 19th century.

    Having said all that the incident with Al-Awlaki is significant. It means the government claims an extra-legal right it did not formally have which, in these cases, has a cascading effect on law in other areas. As we’ve seen in recent years with police feeling free to kill and beat people either out of fear, fun or street justice and, even though the events have been videoed, they do not face justice–not that police were ever that accountable, but as a result of the riots of the 60’s we had several decades of “professionalizing” police to make them more aware that simply using violence may not be the best solution to all problems and street justice was frowned upon.

    First, I don’t accept that the government has any right to assassinate people it claims are a threat. Al-Awlaki is a case and point. Why was he killed? Was he a danger? My guess is he knew something the USG didn’t want publicized–I suggest to you that the U.S. and its allies are the sources of support and funding for Al-qaida/ISIS (and even Hamas) and most Islamist groups in the Islamic world precisely because they want to destroy civil liberties not just in the U.S. but throughout the world. The agenda is Empire and both the RP and the DP share that agenda. In order to be an Empire the U.S. needs absolute rule by decree and the Patriot Act and other rulings, regulations and legislation have aided in that project. The agreement is that the corporate world gets a free pass is allowed to limit competition and hobble markets and be guaranteed almost state-like power (the medical insurance industry is now, basically, part of the State, the “news” business is now nothing more than a PR outlet for particular factions within the imperial state, big energy can stop attempts to take action on climate change and alternative energy etc.) and in exchange the corporate elites allow the State unprecedented power in “foreign affairs” and security issues (as long as they don’t do anything about corporate crime).

    I suggest that the “Global War on Terror” is a fraud–not that there are not some nasty terrorists who are happy to blow themselves up for some bizarre and insane agenda because they have been profoundly traumatized by some combination of Zionism (see Steve Earle’s song “Rich Mans War”) and Imperialist meddling in the ME and (of course) the perversion of religion that is fundamentalism–remember the agenda set during the Cold War was to be against both Nasser and socialism by funding Islamic fundamentalists to make sure the Islamic world would not modernize or begin to institute democratic institutions (the U.S. has constantly undermined democracy in the region–it’s ideal state and closest ally is Saudi Arabia) or establish healthy independent (from the Empire) states. There is no significant threat to the U.S. from Islamic militants (other than threats controlled by the USG) that cannot be handled by decent law-enforcement–the main threats we face are from our own criminal oligarchs (particularly finance oligarchs on Wall Street) and the National Security State itself.

    One caveat here, I don’t believe the Empire has yet been cast in stone and I also believe it is so ridden with corruption and factionalism (mainly about money and power) and the existence of decent men and women in government (yes, they exist) that it may not last much longer–the internet and sites like NC offer many alternative views and I’ve seen public opinion shift dramatically over just the past few years as it realizes, at the very least, that something is happening here, even if they don’t know what it is.

    1. James Levy

      I think that form matters in these cases. Henry VIII and Augustus may have been de facto tyrants but they still needed to operate so that people they wanted to get rid of were changed with statutory crimes then given the semblance of a trial. Even Caligula, when he killed Gemellus had to run off to the Senate and plead that Gemellus was plotting against him and he had to strike first. Now, the government claims the right to kill without charge or trial and without even explaining why it is killing. This is unprecedented in American history.

      1. fresno dan

        A lower echelon government employee provides the rationale for their actions:
        “Officer, I do not give you permission to take my phone.”

        “I don’t need your permission!” he barks. “Get inside and sit on the bench. With your kids.”

        He disappears. With my phone.

        Inside the building, I ultimately get a lecture from two other border patrol officers—friendlier, but not by much—about why recording is not allowed.

        “If you upload it or share it in any way, people are going to know what kinds of questions we ask,” one of them says.

        That makes no sense, I say. “As a journalist, I can tell the world, in writing, what questions you ask. In the U.S., anyone has that right. That’s certainly not against the law. What’s the difference between that and recording the conversation?”

        A moment’s hesitation.

        “Officer safety and security.”

        I consider it. Might be fun to turn the tables for a moment, and use the argument of the typical surveillance enthusiast against them.

        “If you all behave professionally, I believe you have nothing to worry about, and I don’t see why being recorded should faze you.”

        ‘Officer safety’ strike me as a nonsense. They’re all wearing name tags. I could identify them in writing, in public, and that wouldn’t be an intolerable affront against safety and security. Why would a voice recording be any different?

        Now, to my surprise, my oldest daughter pipes up, in her sweetest voice. She’s 11.

        “Why are you telling my dad this?”

        I stare at her, wondering if, for her own good, I should tell her to zip it.

        The answer from one of the guards is unexpected: “BECAUSE (caps added)!”

        BECAUSE people!!!!
        (fresno dan starts singing the tune from the Wizard of Oz….Because, Because BeCauuuusse ….. of the wonderful BECAUSE)

        By the way, from now I am dispensing with the time consuming research and arguments to defend my point of view, as well as all that annoying effort spent thinking (or, more accurately, in my instance, attempting to think), and using the much more succinct “BECAUSE” – I suggest everybody start doing it and we’ll save so many pixels….
        I also note that it is irrefutable…because.

  11. MtnLife

    The mention of the Magna Carta reminded me of this story.

    BridgeAnne d’Avignon traced the 43 presidents’ male and female family lines and discovered that 42 are linked to King John Lackland, known for signing the Magna Carta in 1215

    800 years and they nearly have the thing repealed!

  12. indio007

    Continuity of government plans (CoG) were activated on 9/11. CoG was never deactivated.
    Peter Dale Scott back in 2010 made an iron-clad demonstration that CoG was activated and still exists now.

    The “structures” and the “actors” are still in place as if nothing changed.
    They are figure heads left in place to pacify the populace.
    CoG personnel want the public to believe they are still in control.

    CoG explains many inexplicable Supreme Court decisions that are devoid of real logic, reason or fixed judicial principals.

    CoG explains the powerlessness of the Congress to investigate anything.
    they are the subject of spying themselves.

    CoG explains the unaccountability by anyone in the executive branch for almost any action.

    CoG explains the arming of all Federal agencies.
    They even armed the National Oceanic and Atmospheric Administration (NOAA).
    I guess the next hurricane is going to get a few rounds in the back of the head…..

    CoG explains the Federal take over of the National Guard command structure.

    CoG explains the dissemination of of military hardware to just about every single police force in the US, towns of 300 people are getting MRAPS.

    Some towns explicitly voted down taking possession and still ended up with one.

    CoG explains the Federal takeover of police academies and police forces via Federal grants that mandate certain items in order to get. Police cadets are being trained that everyone is a crazed killer and to use force escalation in every interaction.

    CoG explains all out government propaganda campaigns. Which was illegal in the Old Republic but is legal now… sort off.

    The list could be made nearly endless.

    I will spare everyone.

    We are living in a simulcra/simulation of the Old Republic.

    Thanks to the Neo-Con crew.
    The created the CoG plan when they weren’t in power.
    Activated it when they are in power.
    Cheney could be running the gov’t right now.
    Who knows.

    1. RUKidding

      Agree. Obama, for whatever reason, has not done what nearly all Pres before him did: replace the various appointments among & within the Fed Agencies with his own appointments. For ex, in the DOJ, most of the AGs are still BushCo appointments. Same thing throughout a lot of agencies.

      Is Papa Doc Cheney still involved? My money says: you betcha!

      But most of Deep State we never see. Papa Doc remains one who goes on stage. He may have a say, but it’s others we don’t know or see who pull the puppet strings. JMHO, of course.

      1. James Levy

        I know you are correct in that the Continuity of Government system (largely classified and existing under what seem to be secret laws) exists and at least parts of it may have been activated circa 9/11. We can be sure that’s where Cheney was when he went off to his “secure location.” But how much of it is operational I do not know. It would be hard for anyone to know. Perhaps a dozen people or less do know the full extent of what is and is not operating at this time. One thing I’m sure of is that Congress certainly doesn’t want to know, and would want even less for us to know.

  13. JoeK

    Maybe a bit OT but related: I wonder if the term “Homeland” isn’t referring to a particular entity or power structure, or something else, that is defined but kept secret; analogous to the supposed legal difference between the names of the states spelled out and their two-letter abbreviations, which date from IIRC the 70s. I find the continual use of this term by official and their MSM mouthpieces creepy, as if it’s an intentional but secret reference to some political entity discrete from the United States. Does anyone else wonder, at least, about this?

    1. TedWa

      As soon as that word became enshrined and instituted I could not help but draw parallels to Germany’s “the Fatherland”. And I also think talking about American exceptionalism is creepy and also draws a parallel to Germany’s “master race” meme.

    2. Schwa

      I think it is part of the wholesale borrowing of rhetoric by the neo-cons from the whole Nazi-era. Quoting Naomi Wolf:

      “After 9/11, then-National Security Advisor Condoleezza Rice and Vice President Cheney coined a new phrase: America was now on a “war footing.”” Superficially, it was a stirring word choice. But if you thought about it, it was also kind of an odd word choice, because America was not actually at war. What is a “war footing”? (Nazi leaders explained, after the Reichstag fire, that Germany, which was not actually at war, was from then on a permanent ‘”kriegsfusz’-literally, a “war footing.”)”

      1. JoeK

        OK, all good, and I wasn’t ignorant of the pretty obvious parallels to the German concept of “Heimat/Heimatland,” but my own suspicion is that it might be a legal term related to COG. I didn’t want to bring that up but indio007’s post makes me decide to turn this card over. Perhaps it’s a term with a specific definition under COG.

        Alternatively it may be just, as suggested, something that our typically middle-brow (at best) politicians thought would encourage red-blooded patriotic urges in the masses.

  14. Fifth Schmifth

    The good news is there’s plenty of supreme law that the regime can’t worm out of. In place of our obsolete shitcanned constitution we have a much tighter body of law providing detailed protections and continuing oversight. In this case, here’s the ICCPR applied to:

    “Targeted killings using unmanned aerial vehicles (drones)
    “9. The Committee is concerned about the State party’s practice of targeted killings in extraterritorial counter-terrorism operations using unmanned aerial vehicles (UAV) also known as ‘drones’, the lack of transparency regarding the criteria for drone strikes, including the legal justification for specific attacks, and the lack of accountability for the loss of life resulting from such attacks. The Committee notes the State party’s position that drone strikes are conducted in the course of its armed conflict with Al- Qaida, the Taliban, and associated forces and in accordance with its inherent right of national self-defense and are governed by international humanitarian law, as well as by the Presidential Policy Guidance that sets out standards for the use of lethal force outside areas of active hostilities. Nevertheless, the Committee remains concerned about the State party’s very broad approach to the definition and the geographical scope of an armed conflict, including the end of hostilities, the unclear interpretation of what constitutes an “imminent threat” and who is a combatant or civilian taking a direct part in hostilities, the unclear position on the nexus that should exist between any particular use of lethal force and any specific theatre of hostilities, as well as the precautionary measures taken to avoid civilian casualties in practice (arts. 2, 6, and 14).

    “The State party should revisit its position regarding legal justifications for the use of deadly force through drone attacks. It should: (a) ensure that any use of armed drones complies fully with its obligations under article 6 of the Covenant, including in particular with respect to the principles of precaution, distinction and proportionality in the context of an armed conflict; (b) subject to operational security, disclose the criteria for drone strikes, including the legal basis for specific attacks, the process of target identification and the circumstances in which drones are used; (c) provide for independent supervision and oversight over the specific implementation of regulations governing the use of drone strikes; (d) in armed conflict situations, take all feasible measures to ensure the protection of civilians in specific drone attacks and to track and assess civilian casualties, as well as all necessary precautionary measures in order to avoid such casualties; (e) conduct independent, impartial, prompt and effective investigations of allegations of violations of the right to life and bring to justice those responsible; (f) provide victims or their families with an effective remedy where there has been a violation, including adequate compensation, and establish accountability mechanisms for victims of allegedly unlawful drone attacks who are not compensated by their home governments.”

    [Human Right Committee Concluding Observations. Fourth Report]

    As for third-rate government shysters pulling fantasy law out their ass, the Committee helpfully states:

    “The State party should ensure that all cases of unlawful killing, torture or other ill-treatment, unlawful detention, or enforced disappearance are effectively, independently and impartially investigated, that perpetrators, including, in particular, persons in command positions, are prosecuted and sanctioned, and that victims are provided with effective remedies. The responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established. [!] The State party should also consider the full incorporation of the doctrine of ‘command responsibility’ in its criminal law and declassify and make public the report of the Senate Special Committee on Intelligence into the CIA secret detention programme.”

  15. YoungExPat

    Are there any other 20-somethings who read this blog? Are you guys as cynical about our future as I am?

    1. wbgonne

      I feel bad for you guys because my generation has really f-ed everything up. IMO, only young people like you can effect the necessary changes. Old folks can help but it is always the young who make the real changes. Unfortunately, that will likely mean getting organized and getting out in the streets because the plutocracy is impervious to challenges from within the political system. And so far I see very little sign of that happening. OWS came and went. I suspect it won’t happen until things become unbearable on a personal level but I could be wrong and I hope I am.

      1. YoungExPat

        I camped out at Zuccotti. It was a miracle that something like that could have happened, and on Wall Street turf, no less. But OWS failed because instead of having 500,000+ protestors, it amassed $500,000+ in donations. Completely worthless. (The UPS care packages containing letters of encouragement and jumbo-packs of Ramen noodles were far more valuable to the Cause.) I witnessed first-hand the ridiculous sqabbles over how to spend all that money. My generation is still in it for the quick buck, and we still worship money and power; we can’t help it, it was how we were raised.

        Anyway, if you have the means, leave the United States while you still can.

        1. JoeK

          A study done a few years ago on attitudes of recent college grads found they were much more self-involved, even narcissistic, and much less empathetic, than those tested 20-30 years ago. Cursory observation of people that age does, I’m sorry to say, lead me to the same conclusion. I’d like to talk to and engage younger folks and get a better idea, but I can’t get them to even acknowledge my presence much less converse with me. Not trying to be judgemental, it’s just an observation.

    2. Oregoncharles

      The very opposite, over 60, and you don’t have to be young to be cynical about our future.
      Actually, I feel sorry for those your age; I think we let you down badly, though some of us tried our best.

      1. YoungExPat

        Being young in 2014 isn’t so bad, actually, as long as you’re not afraid to default on your students loans and head for the hills.

        1. RUKidding

          Good luck! FWIW, you have my hippie boomer blessing. There were some of us who really really tried, but what can I say? Boomers effed up big time. Started out with a bang but going off with whine & a whimper. So sorry about that. Can be summed up: Money Talks. For your own generation: Caveat Emptor.

    1. wbgonne

      interesting. I often feel that way but then I wonder if it’s true. There is definitely an element of learned helplessness at work here. I think those who bemoan “government dependency” are on to something, but not exactly what they have in mind. Regardless, I think an emphasis on self-reliance (Emerson!) is necessary and also potentially very attractive politically — if presented correctly.

  16. Oregoncharles

    First of all, Yves, I want to thank you for including political news. Politics and finance are inextricable; I actually read nc primarily for the political implications – I’m not an investor, except locally in real estate (the only form that can pay for a small investor). I suspect I’m hardly the only one.
    You have one of the best POLITICAL blogs, and might as well go for it.

  17. Oregoncharles

    I’m going to bring this down to particulars that illustrate what we’re dealing with. The Particular: Senator Jeff Merkley. He poses a dilemma for the Oregon Green Party, because he’s been remarkably liberal in most respects. However, he voted to confirm Barron, the author of the egregious memo analyzed above. That put me over the edge – I can’t vote for him, and I’d support running someone against him. That vote shows that party loyalty is far more important to him than civil liberties or even personal integrity. Putting Barron on the Appeals Court was profoundly, inexcusably irresponsible.
    But it turns out that what really mattered was his vote – along with every single other Senator – so support Israel’s genocide in Gaza. That made one of our activists decide to run against him – and called out serious support for the idea.
    The nominating convention will be Aug. 9 in Corvallis. Precise venue will be on the website, We have a volunteer to run for Governor, too, which I considered a much easier call.

    Will it matter? That depends on whether Merkley’s Republican opponent continues shooting herself in the foot. It’s a rough year for the Democrats, as it certainly should be.
    Unfortunately, I have no idea whether this scenario is repeating itself across the country, but I would expect so. The national site, should have the scoop on that.
    It might even be an interesting election year. The Democrats’ real agenda becomes more and more obvious.

    1. wbgonne

      I’ll respond in terms of presidential politics if you don’t mind. I voted for Jill Stein in 2012 and I’ll likely vote Green (or Socialist or whatever) from here on out. There are huge tactical problems for a Leftist third party today. Through plutocratic alchemy, Obama has discredited Progressivism while governing as a neoliberal ideologue and an imperious authoritarian. Most of the country thinks that Obama is a Progressive and that the Democratic Party represents the Left and that isn’t good. Unfortunately, I think that most of the third-party energy today is headed towards Libertarianism. It will be difficult, I suspect, to persuade people that government is beneficial while simultaneously damning its authoritarian excesses. Still, it must be done because there is no other hope and I’m grateful that you are actively working to make it happen.

      As for Merkley, he’s probably a decent guy but the Democratic Party devours every one of its adherents. Corrupt to the core and it infects everyone from its elected officials to its partisans (just spend a few minutes scanning the Obot commentary at Daily Kos, florid thought-disorder and denial). Unless Elizabeth Warren challenges the party and runs for president in 2016, she will become little more than the Democrats’ Progressive hood ornament.

      Good luck!

  18. Fifth Schmifth

    @oregoncharles 3:16, funny how everybody moans that the international community is toothless but somehow they take the federal courts seriously even though they are prohibited by The Central Intelligence Agency Act from review of covert operations, and are scripted, censored, and staffed (e.g. Barron and various torturers) by the National Clandestine Service. Face it, if you want independent judicial review you have no choice but to go over the USG’s head to the international community: through civil society organizations to the ICJ, the IACHR, the other treaty bodies, or the Human Rights Council. Sure the CIA ignores them when they can, but at least they don’t dictate the decisions like they do at home. The knuckle-draggers would ignore US courts too, but they don’t have to because they direct all the significant trials.

    If Greens don’t know how to use what rule of law remains, I wouldn’t vote them in for dogcatcher.

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