For all his faults and failures, President Lyndon Johnson put it correctly: With its assassination program, the CIA was operating a “damned Murder Inc.” Not only does Johnson’s pointed observation observe the true nature of the federal government’s assassination program, it also serves to show that assassination has been an integral part of the U.S. national-security state apparatus since long before the 9/11 attacks.
Johnson wasn’t the only one who got it right. When an assassination team established by U.S.-supported Chilean military dictator Augusto Pinochet assassinated former Chilean diplomat Orlando Letelier and 25-year-old American citizen Ronni Moffitt on the streets of Washington, D.C., the U.S. Justice Department called it murder and criminally prosecuted the members of Pinochet’s assassination team in U.S. federal district court, notwithstanding the fact that the Pinochet regime justified its assassination program under the rubric of the war on communism.
Not so anymore though. Yesterday, U.S. Attorney General Eric Holder, speaking on behalf of President Obama, released a letter that purported to justify Obama’s assassination program under the rubric of the war on terrorism. Echoing Pinochet, Holder argued that federal assassination isn’t murder but rather legal wartime killing.
There’s just one big problem with Holder’s reasoning, however, one that he, not surprisingly, failed to address. That problem is this: terrorism is a federal criminal offense. It’s listed in the U.S. Code as a federal crime. Every year, in fact, the Justice Department brings criminal prosecutions against people who are accused of having committed acts of terrorism or conspiracy to do so.
If terrorism is an act of war, then what in the world is the Justice Department doing bringing criminal charges in U.S. District Court against accused terrorists?
The answer to this apparent riddle is a simple one: After 9/11, the Bush administration figured out a clever but devious way to avoid the provisions of the Fourth, Fifth, Sixth, and Eighth Amendments to the U.S. Constitution whenever they wanted. U.S. officials, Bush decreed, would not wield the option of treating an accused terrorist as either a criminal defendant or an enemy combatant.
Yet, those four amendments were enacted precisely because our American ancestors did not want their government going around murdering people, whether they were citizens or not. That’s what the due process clause, which stretches back to Magna Carta, is all about. It requires the government to provide a person with formal notice of what he’s being accused of and an opportunity to be heard and defend himself. That’s what jury trials, which are also required by those four amendments, are all about. And the same principle applies to the right to confront and cross-examine witnesses that the government says support its accusations. The same holds true with respect to the right to call witnesses on one’s own behalf. Our ancestors wanted people to have the right to defend themselves in court before the government killed them.
As everyone knows, oftentimes juries acquit people whom the government accuses of crimes, including the crime of terrorism. Sometimes juries conclude that government witnesses are intentionally lying in an attempt to get a conviction of someone they’re convinced is guilty of the crime. In some cases, juries conclude that the government simply hasn’t sustained the required burden of proof, which is “beyond a reasonable doubt.” When a person is acquitted of a federal crime, he walks out of the courtroom a free person no matter how convinced the government is that he committed the crime.
That’s our American system of justice. There are plenty of Americans who don’t like it. But they have a remedy — secure a constitutional amendment repealing or modifying the Bill of Rights.
But they didn’t have to do that because after 9/11, President Bush, the Pentagon, and the CIA crafted a way to circumvent the protections of the Fourth, Fifth, Sixth, and Eighth Amendments. In what is undoubtedly the biggest constitutional revolution in our nation’s history, America’s Bill of Rights was effectively amended by presidential decree. By declaring that terrorism could now be considered as either a federal crime or an act of war, President Bush, and later President Obama, now effectively wielded the authority to ignore the Fourth, Fifth, Sixth, and Eight Amendments whenever they wanted.
If they feel they have sufficient evidence to get a criminal conviction, they’ll ordinarily prosecute the accused in federal court. In that way, they can maintain the appearance that nothing substantive has changed in American constitutional jurisprudence.
But if they have want to go the other route — the “enemy combatant” route, they’ll either incarcerate, torture, and execute the accused in some military or CIA prison camp or they’ll simply assassinate the accused as part of “wartime” operations.
Consider the assassination of Anwar al-Awlaki. Holder can cite all the information he wants to support the decision to take out Awlaki. But the fact remains: Awlaki was never provided the notice and hearing that due process requires. A federal grand jury never issued a criminal indictment against him, which would have provided the required notice of what he was being accused of. He was never provided a trial in which he had the right to defend himself against what he was being charged with.
In fact, under our post-9/11 system, Obama and Holder are under no legal requirement to even explain why they have assassinated anyone, including Americans. That’s why they continue to remain silent with respect to their assassination of the other three Americans.
Lyndon Johnson had it right. The U.S. national-security state’s assassination program did constitute a damned Murder Inc. So did Pinochet’s assassination program, and Obama’s assassination program is no different. It’s just another sad example of how the national-security state apparatus that has been engrafted onto our constitutional order has taken our country into the dark side.
Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.
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