This week the ACLU and the Center for Constitutional Rights filed suit against CIA Director David Petraeus, Secretary of Defense Leon Panetta, and two top special operations forces commanders for “violating the Constitution and international law” in the drone assassination of three American citizens in Yemen, Anwar al-Awlaki, Samir Khan, and al-Awlaki’s 16-year-old son Abdulrahman (though no one claims he had anything whatsoever to do with terror campaigns). The suit is based on the Constitution’s promise of “due process” (“[N]or shall any person… be deprived of life, liberty, or property, without due process of law”), which to the untutored eye of this non-lawyer clearly seems to involve “law.” Attorney General Eric Holder evidently thinks otherwise and has explained his reasoning when it comes to the right of the Obama administration to order such deaths: “The Constitution guarantees due process, not judicial process.” If you’re not inside the National Security Complex, it may be just a tad hard to grasp how “due process” could mean a secret process of review in the White House presided over by a president with a “kill list” (whose legal justification, laid out by the Justice Department, cannot be made public). And yet that is, as far as we can tell, indeed the claim.
It will be a surprise if this case goes far. The government is almost certain to bring to bear the usual not-quite-state-secrets-act to squelch it, with its lawyers undoubtedly claiming that any such trial could reveal damaging secrets about our expanding drone wars. Of course, U.S. drone strikes in Pakistan, Yemen, and more rarely Somalia are regularly in the news, and have been proudly cited or even boasted about by officials from the president on down, yet they remain somehow “covert” and unmentionable when it suits the administration. And since just about anything the National Security Complex does evidently now qualifies for classified status, secrecy is increasingly the convenient excuse for just about anything.
In the case of our drone wars, “covert” clearly has little to do with secrecy in any normal sense and a lot to do with lack of accountability to anyone not involved in choosing those to be killed or launching the attacks. One thing is clear: whatever the ACLU and others do, we now live in a post-legal America, a world in which no act (other than whistleblowing), however illegal, within the national security state can be successfully prosecuted in court. This has clearly been part of a process by which, since 2001, American liberties have been turned in for “safety.” Something did change after 9/11 (when “everything” was supposed to have changed) and in a speech at the University of St. Andrews in Scotland, reproduced below in full, Noam Chomsky backs up a few centuries to lay out a vivid history of just how this happened. (To catch Timothy MacBain’s latest Tomcast audio interview in which Chomsky discusses the recent shredding of the principles of the Magna Carta, click here or download it to your iPod here.) Tom
Destroying the Commons:
How the Magna Carta Became a Minor Carta
By Noam Chomsky