Civis Romanus Sum

by , February 13, 2010

“I am a Roman citizen” was a proud boast in the first century A.D. It implied the obligations of citizenship but also guaranteed privileges and rights that would be observed and protected by the Roman government.  Among those rights was the ability to demand one’s day in court to produce evidence if accused of a crime.  No citizen could be tortured and the death penalty was reserved for cases of treason. Some might recall that the Roman citizen Apostle Paul of Tarsus, placed under arrest in Jerusalem, successfully claimed his right to appeal to the Emperor and ask for trial in Rome.  He was duly transported to the capital city to be tried. 

It was not so long ago that “I am an American citizen” might have had a similar resonance.  Embattled farmers at Lexington and Concord fired the shot heard round the world, the start of the first successful revolution staged by a colony against a European monarch.  The founders of the United States sealed the victory with a Constitution which was intended to guarantee in perpetuity the rights and freedoms that their fellow Americans had fought and died for.  Those freedoms were enshrined in the Bill of Rights.  The Fifth Amendment states that no American can be “deprived of life, liberty, or property, without due process of law.” And then there is the Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State,…and to 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.”

Fast-forward two centuries to find that the United States Congress and a President, now defined by some as a unitary executive, have done much to dismantle the rights and privileges that once defined American citizenship.  The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 might well be described as one of history’s more spectacular euphemisms employed to gut a constitution. It is better known as the Patriot Act I.  Patriot Act I became law six weeks after the fall of the twin towers and was followed by the the Patriot Act II of 2006, the two laws together diminishing constitutional rights to free speech, freedom of association, freedom from illegal search, the right to habeas corpus, prohibition of cruel and unusual punishment, and freedom from the illegal seizure of private property. The First, Fourth, Fifth, Sixth, and Eighth Amendments in the Bill of Rights have all been discarded or abridged in the rush to make it easier to investigate, torture, and jail both foreigners and American citizens. The also incorporates the Financial Anti-Terrorism Act of October 17th, 2001, which permits the freezing of assets and investigation of individuals suspected of being financial supporters of terrorism. "Suspected" is the key word, as there is no oversight or appeal to the process.

The Military Commission Act of 2006 followed the Patriot Acts, creating military tribunals for the trying of "unlawful enemy combatants," including American citizens. Unlike a civil or criminal court, the accused needs only a two-thirds vote by the commission members to be convicted. The act permits the indefinite jailing of suspects in a military prison without providing access to a lawyer or charging with a crime. The government is not required to produce any normally admissible evidence at a commission hearing and can rely on hearsay or even on information obtained overseas during torture to make its case. Detainees do not have access to any classified information being used against them and cannot cross examine or even know the identity of witnesses. The MCA suspends habeas corpus for anyone charged and forbids the application of the Geneva Conventions to mitigate conditions of confinement or to challenge the judicial process or verdict. The Geneva Conventions also cannot be invoked if the accused subsequently claims he was tortured or otherwise abused, protecting overly zealous interrogators from later charges of "war crimes." The act was also designed to cover all cases that were pending, meaning that it was retroactive.

Those concerned about civil liberties could have predicted that worse might be coming and it has, it seems, finally arrived.  On February 3rd Director of National Intelligence Dennis Blair told members of the House Intelligence Committee that the United States government can kill American citizens overseas who are “taking action that threatens Americans.”  Blair reportedly was revealing a secret policy that has been in place since the Bush Administration.  It is the ultimate irony that Blair is representing the new Administration in Washington headed by President Barack Obama, who had, during his campaign, opposed the infringements on liberties inherent in the Patriot and Military Commissions Acts.  Instead of confining those Acts to the dustbin, Obama has continued them and has also strengthened his Administration’s ability to use the state secrets privilege to silence criticism and dissent. 

Blair’s remarks ought to mortify every American citizen but instead have attracted very little critical commentary.  They should be examined in some detail.  He told the congressmen that the intelligence agencies and Department of Defense would “follow a set of defined policy and legal procedures that are very carefully observed.”  That, in all probability, means that if actionable intelligence indicating that an American citizen who is suspected of ties to a sanctioned group is developed a US government lawyer and senior bureaucrat can get together and decide that he should be killed. As the criteria for that decision are secret there is no way to know if there is any kind of rational due process involved.

There are reported to be three American citizens who are on the current hit list, including US-born Yemeni cleric Anwar al-Aulaqi, who has been connected to the US Army Major Malik Nadal Hasan, responsible for the November 2009 Fort Hood Texas shooting incident, and also to Christmas underwear bomber Nigerian Umar Farouk Abdulmutallab.  Al-Aulaqi denies any connection to any terrorist conspiracy and the evidence that he or any other individual is actually planning to kill fellow Americans is subject to the usual problem, i.e. that intelligence can be and frequently is wrong or inadequate while divining the intentions of any individual is most often sheer speculation.  It all comes down to an official deciding that someone is a terrorist without the government having to prove its case with the penalty for the unfortunate suspect being death.

Blair then went on to explain in more detail, saying “We’re not careless about endangering American lives as we try to carry out the policies to protect most of the country” adding "We don’t target people for free speech. We target them for taking action that threatens Americans." A question from Representative Peter Hoekstra revealed the mindset behind the policy in asking what to “do when it comes to Americans who have joined the enemy.” Blair responded that the intelligence community will take “direct action” against terrorist citizens when “that American is involved in a group that is trying to attack us, whether that American is a threat to other Americans.” 

It doesn’t take a genius to see the flaws in the policy, beyond the semantic problems with an assassination program that protects “most of the country” and presumably leaves everyone else vulnerable.  Few would dispute the US government’s right to kill someone who is acting in flagrante, either planting a bomb or participating with a group of armed insurgents to kill American soldiers or civilians.  But that is not what we are talking about here.  We are talking about a US citizen who is living overseas being accused of a capital crime based on secret evidence and being assassinated under orders of the President of the United States.  He is not necessarily killed while engaged in an act that directly threatens American citizens but rather can be assassinated when he is asleep with his family, traveling in a car with associates, or having dinner in a restaurant. Anyone unfortunate enough to be near him will quite likely also die.  And the suspect has no appeal in the process and no ability to have his day in court to demonstrate that the evidence against him might be wrong. 

Anyone who has followed the intelligence narratives linked to the so-called global war on terror now-called overseas contingency operations realizes that intelligence is often flawed or deliberately faked.  Most of those arrested on terrorism charges in the US are never charged as terrorists.  Overseas, note how many civilians have been killed by drone strikes in AfPak.  By one estimate in the Pakistani media, 700 civilians have been killed in Pakistan by drones in attacks that have killed only five militants while the Brookings Institute believes the ratio is more like ten to one.    So to my mind, Anwar al-Awlaki and the others on the government hit list are innocent until proven guilty and all are entitled to their day in court, the same rights that I would like to enjoy if I were accused of a crime.

Blair also opens the door wide to extending the practice of killing Americans.  He says that the US government can target anyone “involved” with a group that threatens to attack American targets.  Well, involvement can mean anything from contributing to a charity that is tied to an organization that the US calls terrorist to sending a letter to the local newspaper defending a group’s actions.  Where does it stop?  And Blair’s claim that the US government is not interested in targeting free speech is essentially hollow because his own elastic definition of his authority permits him pretty much to go wherever he wants to when it comes to killing whomever he presumes to be a terrorist.

Obama’s decision to assassinate Americans overseas without any due process might well be viewed as an inevitable development from the established practice of killing foreigners using hellfire missiles fired from unmanned drones in places like Afghanistan, Pakistan, Yemen, and Somalia.  The United States has not declared war on any of those countries yet it reserves to itself the right to attack and kill local residents based on information that it does not subsequently have to reveal.  This process is given a legal fig leaf by the US assertion that anyone connected to a terrorist group can be killed anywhere in the world and at any time.  It assumes that in such matters the United States has extraterritorial jurisdiction, a claim that no other nation makes and which might reasonably be contested by those on the receiving end.  It also does not require the President of the United States to prove his case that someone actually was a terrorist. 

The role of the Washington as the Lord High Executioner for the world is tough to reconcile with the high idealism of the Founders as expressed in the Bill of Rights.  It also begs the question of where it might go from here.  Now that the government is not being challenged in its belief that it can assassinate American citizens anywhere overseas it is perhaps not too much to suggest that killing Americans at home will also become more acceptable to a public that has been properly prepped through fear of terrorism.  Indeed, some might argue that Waco and Ruby Ridge demonstrate that that process is already far advanced.  Dennis Blair’s comments should serve as a wakeup call for all Americans who care about their liberties, but it is possibly too late.  The tepid reaction in the media and from congress reveals that just another few deaths, even if they are American citizens, really don’t matter very much anymore.

Read more by Philip Giraldi