Judge, Jury & Executioner

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I’ve criticised Rand Paul in the past on a few issues, but none of my previous doubts and nitpicks can dilute the sheer brilliance of his almost-thirteen-hour filibuster.

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The absurdity of the legal framework built up by the Bush and Obama administrations was a house of cards for Paul to poke at and watch crumble. Paul’s key question is does Obama believe he can order the killing of an American citizen, on American soil, based on nothing more than his own judgment that the person is a threat?

Under the Fifth Amendment, suspects are entitled to the due process of law:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

And how can any President claim that his own judgment, or that of his Attorney General counts as the due process of law? The targeted drone killings that have occurred in foreign lands — and which Holder admits could theoretically occur on American soil — are very simply extrajudicial killings. And extrajudicial killings are utterly barbaric, incompatible with modern civilisation, incompatible with any notion of human rights or due process, and incompatible with the Constitution.

The status quo evolved very much out of post-9/11 paranoia, as exemplified by Dick Durbin’s Cheneyesque questions aimed at Paul toward the end of the Filibuster, and by Eric Holder’s initial written response referencing Pearl Harbour and 9/11:

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Neither Rand Paul nor myself are suggesting that an attempted violent attack should not be stopped using necessary means (although not excessive means). But if an act of terror has not commenced (and even in many cases where an act of terror has commenced) it should be possible to arrest and question a suspect, rather than killing them. If a suspect can be arrested, charged and tried, there should be no reason why that should not happen.  And unless an act of terror has actively commenced, or unless a suspect can be convicted beyond reasonable doubt in a court of law the government’s suspicion is only a suspicion, and the government has absolutely no business detaining or punishing a suspect.

After 9/11, due process was effectively suspended, and for all of Obama’s lip-service to “change”, this mindset prevailed through his first and into his second administration. Rand Paul’s dogged, tireless questioning — as well as the work of questioners in the media such as Glenn Greenwald, Conor Friedersdorf, Spencer Ackerman, and Micah Zenko —  is acting as a catalyst to break the public and governmental mindset that allowed for the suspension of due process. Due process matters. If it hasn’t been proven that someone has broken the law why should they be punished for it? As humans we have inalienable rights. The fear of terrorism does not trump the right to be tried under the presumption of innocence.

The strength of Rand Paul’s argument means that defenders of the status quo have had to resort to spurious or ad hominem arguments to mount a defence of the President’s position — attacking Paul’s positions on other issues, for example. It was encouraging to see Rand Paul questioning the entire notion of targeted killings and signature strikes altogether, and not just worrying about the prospect of such affairs on American soil. Due process is preferable in all circumstances.  I would have preferred to see Osama bin Laden captured and tried, rather than killed.  Due process is not a sign of moral weakness, but a sign of cultural strength, of sanity, of civilisation.

The Obama administration must eventually understand that their position is untenable. Large swathes of the mainstream media are coming around to the idea that Rand Paul is asking important questions and that due process is more important than national security panic and threat inflation. Paul has struck a blow for the Constitution at the right moment, and to a judicial edifice that has become bloated and corrupt, treating too-big-to-fail bankers with impunity, while coming down like a tonne of bricks on minor intellectual property infractions. He has harnessed the image of a lone filibustering Senator standing up to the machine of the establishment to strike a blow to those who are trying to defend the indefensible. At the very least, Rand Paul has made real oversight of the drone program possible. Hopefully, the days of signature strikes and of targeted killings are numbered. Hopefully, the Constitution and Bill of Rights will reign supreme again in Washington D.C.

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26 thoughts on “Judge, Jury & Executioner

  1. Their goes that pesky US Constitution getting in the way of the New World Orders plan to un-do the last 200+ years of American advancements in law & order so that we can return to when some king/queen/dictator/globalists can impose their own will & laws on the people or subjects. Back to when the world made sense…to a small, mega rich few. To learn more of what else is in store for us in a New World Order, One World Government go to: http://www.stopthenorthamericanunion.com/TwoPeas.html Here’s what Winston Churchill said about that, “If you will not fight for the right when you can easily win without bloodshed, if you will not fight when your victory will be sure and not so costly, you may come to the moment when you will have to fight with all the odds against you and only a precarious chance for survival. There may be a worse case. You may have to fight when there is no chance of victory, because it is better to perish than to live as slaves.”

  2. Nothing material to add. Just wanted to state that I am completely in agreement with your opinion and position regarding Rand Paul and the matter of extrahudicial killings.

  3. For what it is worth, the President has asked Congress multiple times to construct “a legal architecture” for the usage of drones.

    Considering America already allows for state sponsored executions of its own citizens with due, yet very, very flawed process (see: http://www.innocenceproject.org/Content/Facts_on_PostConviction_DNA_Exonerations.php ), I am not surprised that the country is staking out this even lower moral ground.

    I commend Senator Paul for fighting this battle, but it still doesn’t excuse his absurdity last week on Fox:

    http://mcleanparlor.com/2013/02/24/rand-paul-preaches-hellfire-and-brimstone/

      • “Sen. Rand Paul (R-Ky.) wants one thing before he’ll allow the confirmation of John Brennan as CIA Director to go forward; he wants assurances “someone eating at a cafe in Boston or New York” won’t have “a Hellfire missile [come] raining in on them,” he said Friday on Fox News.”

        From Politico

        • Well, let’s say that a hacker kid maybe with some sympathies for or connections with al-Qaeda, or maybe even for a group like Wikileaks decides to take down some DOD computers from his laptop at a cafe in New York. Under some interpretations of Holder’s guidelines, that kid could be targeted for a drone strike as an enemy combatant. It really ain’t that far out.

        • Fair enough, but Paul didn’t mention anything about someone actively doing anything but eating at said cafe. I share the Senators general concerns, but he was discrediting his own argument with that specific example. American politics are suffering from extreme rhetoric and the actions that follow. A bit of restraint could go a long way towards helping things.

  4. Reading Jeremy Scahill’s tweets the other night got my blood boiling. It is all too absurd. We are plainly trying to escalate the war on terror, so that we can continue everything that goes with it; decreased liberty, increased military spending, more foreign adventures, etc. I can find no other rational or answer.

    So the question becomes, what are the Powers that Be’s projections for twenty years from now? I think they are going to push it further than any of us could imagine. Twenty years from now, we will look back and remember the good old days of the PATRIOT Act, NDAA, espionage chargers against whistle blowers, and say “man, things were so much better then. How did we let it get to this point?”

    Think back ten years ago. Could you have envisioned targeted assassinations of US citizens? NDAA being passed into law? NSA scooping up 1 billion+ e-mails per day? Just wait to see what else they come up with. The trajectory could not be more clear.

    • Some men used to be called Chivalrous. Now they are called Dorks.

      The undermining of a virtuous culture is the end game. Protectors of human ideals are mere dinosaurs now. Sad really.

      • BR, aren’t we romanticizing a bit?

        Can you please point out a few of these, “protectors of human ideals?”

        • I was brought up to say please, thank you, care for ones less fortunate than me, protect the weak ,punish bullies, respect the right of life to live free from harassment, fear.

          I would be considered a Dork by today’s youth. The movies and music videos says so.

        • Thanks Mate!

          Your inspirational contributions give me hope for a New Confederacy of American States.

  5. Even a stopped clock can be right twice a day. Am not taking Paul seriously, given his vote on NDAA. Thinking more it’s an audition for 2016.

  6. I think its unwise to confuse two issues here.

    The killing without trial of an American citizen by the US Government on American soil is a constitutionally barred and morally repugnant act.

    The killing without trial of a Syrian citizen by the US Government on American soil is a grey area, if you want to get technical, its perfectly acceptable, because the constitution primarily protects Americans.

    The killing without trial of a Syrian citizen by the US Government on Syrian soil is an act of war against Syria. Its illegality could only stem from the fact that only congress can authorise war.
    Killing a Syrian in Jordan simply makes two possible acts of war.

  7. “Namely, that the Constitution somehow permits or at least does not foreclose the united states government killing a U.S. citizen on U.S. soil who is not flying a plane into a building, who is not robbing a bank, who is not pointing a bazooka at the pentagon but who is simply sitting quietly at a cafe, peaceably enjoying breakfast…”

    It shouldn’t get past you John that robbing a bank is an activity grouped with flying a plane into a building or pointing a bazooka at the pentagon. If you touch the precious bankers… lethal force seems to be A-OK!

    • I think this a fair criticism of what Rand said, he should not have used the bank example, and he should have been more careful to emphasise that if you can be detained, charged and tried, you should be even if you are already engaged in combat; defining someone as “in combat” should not be carte blanche to kill them. Additionally, I think the standard for “combat” needs to be defined as “engaged in physical combat right now”, so as to avoid the possibility of using force against “cyber combatants”, “paper terrorists”, etc, etc, etc, and precluding using force against someone sleeping at home in their bed who is suspected of recent violence.

      • John, how do you distinguish between an American citizen engaged in terrorism activities in the U.S. where subject to arrest and due process (no need for drone) and an American citizen in a foreign environment active with terrorism and a government hostile to U.S. anti-terror efforts (Pakistan, Bin Laden)?

        • Arrest should always be preferable. If you can put troops on the ground to kill a suspect, the chances are you can put troops on the ground to arrest them. Obviously in trying to apprehend an armed suspect, there is a chance situation will escalate and turn into a shootout, which may have been what happened with bin Laden, but I think the evidence leans toward the idea that they took him out.

      • Drones used outside the context of a declared war are just high-tech car bombs, a preferred tool used by assassins and terrorists.

  8. John writes:
    “Hopefully, the Constitution and Bill of Rights will reign supreme again in Washington D.C.”

    These two documents are a justification for everything that has followed in the United States.

    The legal framework that defines social relationships in America is used as launching pad in the manipulation of language/meaning of policy in order to subvert, “noble intentions,” ideals designed to foster a common-will and a common-wealth into what we enjoy today, a society dominated on all phases by specific interests.

    THIS is the problem with law, or any form of social contract [my apologies to JJ Rousseau], that is, simply another form of shackle, and, albeit transparent, it gives the majority the illusion that this is freedom, or, at least the best you can hope for [more or less].

    Idealism is a wonderful playground for the individual to enjoy, but when applied socially, ALWAYS leads to the ultimate bait and switch…[fill in the blank with your favorite institution].

    • I think the problem is that human beings are not only obligate socializers, like cats and dogs and monkeys, but are clever enough to abstract, criticize, and therefore improve or game their social systems. The fact that some can do it implies very strongly that some will do it, especially the gaming part, to the disadvantage of others in their communities. In self-defense, the others begin counter-gaming. Soon everyone is writing up contracts and constitutions, passing laws, issuing regulations, and torturing dissidents.

      It is like the related problem of philosophy. One can use words to befuddle others, and so philosophy begins. It is, as Wittgenstein said, the disease for which it is supposed to be the cure. But we seem to be stuck with it; we have to practice philosophy if only to defend ourselves from the philosophers.

  9. WAR IS DIRTY. THAT’S WAR,

    Bush made one mistake. He should have gave the Terrorists one year to reign in thier networks, then go in hard. real hard. The ultimatum would have gave the terrorists and their supporters a chance to accept their defeat. Instead they laugh at us because we talk about NOBLE METHODS of war. The win. We can’t beat them militarily and we lose our principles of law. What a joke.

    they could have offered Visas to all, filtered the applicants, then level everything and everyone resisting. give the childn toys candy and video games. One generation until transformation.

    Amateurs!

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