Our Government’s Abusive, Selective Rule of Law

Attorney General Eric Holder

What’s wrong with this picture of America’s rule of law?

Look at two paragraphs from this Associated Press story posted today:

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Sulaiman Abu Ghaith

Sulaiman Abu Ghaith

Osama bin Laden’s son-in-law will go on trial in January on charges that he conspired to kill Americans in his role as al-Qaida’s chief spokesman, a judge said on Tuesday…

…Prosecutors say evidence against [Sulaiman] Abu Ghaith includes a widely circulated video of him in early October 2001 sitting with bin Laden and current al-Qaida leader Ayman al-Zawahri and another in which he calls on every Muslim to join the fight against the United States, declaring that “jihad is a duty.”

So far, nothing’s wrong. Why? Because Abu Ghaith is receiving what every American has the constitutional right to: a fair trial to prove his innocence or guilt under the law. And he’s not even an American.

But here’s where we see the picture lethally distort. Check this paragraph from a New York Times‘ Sept. 30, 2011 story:

The search for Mr. [Anwar al-]Awlaki, the American-born cleric whose fiery sermons made him a larger-than-life figure in the shadowy world of jihad, finally ended on Friday. After several days of surveillance of Mr. Awlaki, armed drones operated by the Central Intelligence Agency took off from a new, secret American base in the Arabian Peninsula, crossed into northern Yemen and unleashed a barrage of Hellfire missiles at a car carrying him and other top operatives from Al Qaeda‘s branch in Yemen, including another American militant who had run the group’s English-language Internet magazine.

Bottom line: The U.S. government will provide a fair trial for a noncitizen accused of waging war against America, but will travel across nations’ borders to track down and kill American citizens accused of waging war against the United States.

We highlight the verb accused because it’s such a vital part of the constitutional law process.

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The same day as the NYT article, noted Georgetown constitutional law professor Jonathan Turley wrote this in his blog about Awlaki’s killing with the headline “Did Obama Just Assassinate A U.S. Citizen? Aulaqi Killing Raises Questions Over Presidential Powers”:

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Jonathan Turley

…It runs contrary to constitutional guarantees protecting persons accused of crimes. The President can claim that the location of such individuals abroad is the key distinction since courts limit the application of constitutional protections and limitations outside of our border. Yet, we have already seen that the Justice Department argues that other rights can be similarly waived in the country like due process rights and the right to counsel for anyone accused [of] being an enemy combatant. The enemy combatant policy and cases largely eradicated the domestic/foreign distinction used in the past.

Turley wasn’t alone in his concern. Constitutional lawyer/journalist Glenn Greenwald also decried Obama’s executing American citizens without trial:

Remember that there was great controversy when George Bush asserted the power to simply detain American citizens without due process or simply to eavesdrop on their conversation without warrant,” he said. “Here you have something much more severe. Not eavesdropping on American citizens, not detaining them without due process, but killing them without due process. And yet many Democrats and progressives because President Obama is doing it have no problem with it and are even in favor of it…

…To say that the President has the right to kill citizens without due process is to take the Constitution and to tear it into as many little pieces as you can and burn it and step on it.

You here in the U.S., far away from the Middle East’s daily conflicts, probably aren’t concerned about the loss of a couple of accused rogue Americans, nor the loss of Awlaki’s 16-year-old American-citizen son, who also was blown up by a drone missile.

Attorney General Eric Holder

Attorney General Eric Holder

But you should be concerned, if not because of fellow humans being assassinated without due process, then because it might just occur in your America. Your nation’s Attorney General has told you so. Observe this CNN report from just last month, March 6:

Attorney General Eric Holder is not entirely ruling out a scenario under which a drone strike would be ordered against Americans on U.S. soil, but says it has never been done previously and he could only see it being considered in an extraordinary circumstance.

…But he also said the government has no intention of carrying out drone strikes inside the United States. Echoing what he said in a letter to U.S. Sen. Rand Paul, R-Kentucky, he called the possibility of domestic drone strikes “entirely hypothetical.”

Paul, however, didn’t buy Holder’s efforts to skirt the issue. He responded:

The U.S. attorney general’s refusal to rule out the possibility of drone strikes on American citizens and on American soil is more than frightening. It is an affront to the constitutional due process rights of all Americans.

Consider this struggle over your constitutional right to due process, and whether you care or not. Then consider that Obama had written into the National Defense Authorization Act that the president can order the military to arrest anyone in the world without charge and secretly imprison them without trial, if he considers them a “terror” threat to the U.S. government.

Then consider the column from Forbes magazine headlined “1.6 Billion Rounds Of Ammo For Homeland Security? It’s Time For A National Conversation.”

Then consider this article in the Feb. 24 Seattle Times, reprinted from the Atlanta Journal-Constitution, headlined, “Police armed with surplus military gear,” and the subhead reading, “There is growing concern that donated surplus military equipment is adding to the militarization of law-enforcement agencies nationwide.”

Forbes based in New York, Seattle Times, and Atlanta Journal-Constitution: three decades-old respected publications writing about such goings on. Then add to that this Denver Post article titled “NRA calls for armed police officer in every school.”

What do you think is really going on?

Do you think it’s time for a national conversation?

Do you think it’s time to get organized, get educated, and get active?

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  • Don Binns

    Roger, I truly appreciate your columns and unique perspective- and access to these access to these news updates. Keep it up, my Friend.