DEATH BY DRONE
How America’s foundational principles are being destroyed
by convenience, expedience, and complacency.
“No person shall be deprived of life, liberty or property without due process of law.”
US Constitution, Fifth Amendment
Let there be no doubt. I am an unrepentant liberal Democrat. I supported President Obama in both the 2008 and 2012 elections. I am glad I voted for him both times, rather than the other guy, and will vote for similarly liberal candidates again, occasion permitting.
However, this does not mean that I agree with everything that President Obama has done, or is trying to do.
For example, I understand why Obamacare is structured the way it is, even though I don’t believe it takes the best approach. We need a universal national healthcare system and we don’t have it.
Ultimately, in order adequately to address our out-of-control health care costs, we will have to eliminate the employer-centered and private-insurance-based model, and adopt a federal-based, universal health care system, expanded Medicare, that covers every American, whether or not he or she is employed. But the present Obamacare system is a small, cautious, step in the right direction. It will allow most people to have health insurance and preventive health care, which will eliminate the need for the public to pay for emergency room care for those individuals.
I share the President’s concern about gun violence, but completely disagree with his effort to restrict access to assault weapons and high-capacity magazines. I write more about my opinion on that subject elsewhere on this website.
But today, the issue that has me most concerned is the use of remotely piloted aircraft to attack and kill individuals who have been deemed by the President deserving of such action.
The passage quoted at the beginning of this article, from the Fifth Amendment of our Constitution, is often referred to as an expression of the “rights” conferred on Americans. It is a part of the “Bill of Rights” as the first ten amendments to our Constitution are often referred.
I see it differently, however. The way I see it, each of the first ten amendments spells out a “limitation” on the right of government to act, rather than a “right” of the American people to be free from that kind of action. If the government is limited in its right to act contrary to the Fifth Amendment, then it must be so limited with regard to anyone anywhere.
I freely admit that I have not done the research that is called for, to learn how the Supreme Court has treated the first ten Amendments during the past two hundred plus years. Even so, I can honestly say that my expectation is, in pronouncements from one of the three branches of our government, that I would expect the Court to avoid interpretations that would limit the power of the government and instead make their decisions in terms that delineate the “rights” of the individuals that are challenging whatever government action was being questioned.
So when I hear about President Obama’s “kill list,” and I hear CIA Administrator nominee John Brennan trying to justify actions of our government, for example, “torture,” that I consider unjustifiable under any circumstances, I am forced to ask, “How do these actions by our government today fit within the fundamental principles of our nation?” And each time I ask myself this question, the answer that I get is “It does not fit.”
http://jimbovard.com/blog/2013/02/18/cartoon-perfectly-nails-absurdity-of-obamas-license-to-kill/
See the cartoon from the New Yorker, February 25, 2013
It is undeniable that there are bad people out there who are trying to harm America and Americans. I suppose it has always been so, and I suppose it will always be so in the future. As such, the fact that there are bad guys (or girls) out there cannot be, in itself, a valid reason to employ tactics that, on their face, fail to provide due process. Americans cannot stand by without objecting when our own government acts to deny Constitutional protection to the people it seeks to prosecute for crimes or to limit the actions of government as required by the Constitution.
If I am right in that logic, then what is different about the situation of alleged promoters of terrorism? What circumstance makes it OK to kill someone just because there is “intelligence” that says he or she is planning some criminal action against us, or even that he or she has already participated in such action? What does our Constitution mean if some unnamed person can say you or I are a terrorist, and not afford us an opportunity to refute or disprove that accusation? What happens to the presumption of innocence, and the obligation on the state to prove its case before imposing a sentence on us? We have entered the world of Tom Cruise in "Minority Report" where the "Pre-Crime" department decides who will commit a crime in the future, and acts preemptively to take them out.
We have a very competent federal judicial system. It has tried persons accused of terrorism, and in some cases found them guilty, and in some cases, found them innocent. That is how it was designed to work.
In a recent case in Miami, a Muslim cleric, the Imam of a suburban Miami mosque, has been labeled as a supporter of terrorism and arrested, along with two of his sons, one of whom is the Imam of another mosque in Broward County, and the other of whom is a taxi driver somewhere in the north.
People who know the father say the money he has sent to Pakistan is for a school he supports there and for some other legitimate business enterprises. The government claims it was to support terrorists.
The taxi-driver son was released not long after the charges were originally announced.
The other son, the Imam from Broward County, was held in solitary confinement for something like a year, and then was recently released after the federal judge in the case dismissed the charges for lack of evidence. What if this Broward County Imam had not been in the United States and had not had the benefit of a federal judge to look at the government’s case against him?
Where is the line between enough “intelligence” to charge someone in US federal court, and hold them incommunicado for a year, as they did with our Miami cleric and his son from Broward, and enough “intelligence” to target the individual for assassination? Does anyone know where that line is?
Who decides and by what criteria?
If this Broward County Imam had been in a stone house in Pakistan, rather than in a concrete block house in Fort Lauderdale, and the federal government had produced the exact same allegations against him, would he have qualified for the President’s “kill list?”
We don’t have any way to know because the standards for anyone to be on that list are classified.
Regardless, the fact that such a list even exists at all is cause for concern. It is an overt acknowledgement that the President of the United States of America, who is sworn to uphold, protect and defend the Fifth Amendment of the United States Constitution, as well as all the rest, is deliberately violating it. As a patriotic American, it is my duty to stand here and accuse the President of violating his oath to protect and defend the Constitution.
Anyone reading this essay should note the opening lines of the second paragraph of the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
The reader should also bear in mind that the rights spelled out in the Bill of Rights refer to “person” or “people” and do not refer to “Americans” or “citizens” or any other designation that would suggest that the restrictions or qualities endowed on all men contained therein only apply to persons within the geographical borders of the United States, or that the United States government is free from the restrictions on its actions once it is outside of the borders of the United States.
I contend that those restrictions apply to government action anywhere the United States is carrying out any operations.
There is lots and lots written on Article I (the First Amendment) and Article II (the Second Amendment) of the Bill of Rights. It is worth everyone’s time reading this to review the provisions of Articles VI through VIII (the Fourth through the Eighth) of the Bill of Rights of our Constitution. These are fundamental rights spelled out by the most basic document in our nation. They are limitations or restrictions on the right of our government to act, not a recitation of rights of individuals. If you don’t understand that, you need to read them aloud.
If we allow our own government to violate them, even in the smallest manner, we are not only failing to follow the precepts set long ago for the operation of this nation by its founders, we are turning our back on fundamental principles that we have touted around the world as necessary for civilized government. And if we fail to speak out against that behavior, we ourselves are complicit in that violation.
In the wake of World War II, the United States, which was at that time the undisputed moral leader of the world, led the nations of the world to establish the United Nations and to pass in 1948 the Universal Declaration of Human Rights, which in many respects mirrors our own Bill of Rights. The Universal Declaration of Human Rights followed and in some respects also mirrored the Geneva Convention on Prisoners, which originally had been written in 1865, long before World War II, and then was modified and re-ratified by international treaties several times prior to 1948.
The reader would be well-advised to read those documents for himself or herself. The critical provisions are to be found in the Geneva Convention for War. These international protocols, first established in 1864 and amended many times since then, most recently in 1949, spell out our responsibilities for treatment of all people within an area of hostilities. We have violated many of them during the last 11 years.
Prohibitions against mistreatment of prisoners. Prohibitions against torture. Prohibitions against murder. Requirement for International humanitarian agencies to examine prisoners and verify that their treatment is in compliance with the Convention.
What has happened to our moral leadership? I contend that it has been gutted on the altar of expediency and hubris.
The prevailing government arguments go something like this: “We are at risk from terrorism (or fill in your threat du jour), and therefore we are justified in violating the principles we urged on the entire world when that threat wasn’t present.” “We are the most powerful nation on earth, so it is OK if we act inconsistently with our own avowed principles.” “Do what we say, not what we do.” “We are the meanest nation in the valley, so we can do whatever we want to do.”
I am told that there is a secret legal opinion that has been given to the President to justify killing with drones. I am a lawyer and have no time or patience for a legal opinion about my government’s action that can’t be published. To suggest that such an opinion even exists and is being acted upon is disgraceful. We already know about President Bush’s worthless and disgraceful John Hu legal opinion that torture was OK. A legal opinion that cannot stand the light of day and publication in the Washington Post or New York Times, like free legal advice, is not worth the paper it is printed on.
There are a lot of terms to describe that kind of argument. Horse puckey and balderdash come immediately to mind. The opinions allowing violation of the Constitution are totally self-serving arguments that basically say the rules only apply to us when it is convenient for us to interpret them that way. For lack of a better response to that argument, I can only say that expedience can never be a suitable reason to violate the rules of civilized nations, or of civilized non-national actors, either during a conflict or with regard to persons captured during a conflict. If we can violate them, then so can everyone else.
The proponents of these forms of brutality will argue that the threat of Al Quaeda or other terrorist groups or individuals is so different from war between nations that the usual rules, as presented in the Geneva Conventions, for example, should not apply.
The response to that argument is that the rules of civilized behavior should particularly apply during the time of such threats not only because our own Constitution has no exceptions built into it for such occasions, but also because to make an exception, when it appears to the political leaders of the nation that a threat exists, would allow anyone, anywhere, to be labeled as a terrorist, targeted and killed, with no showing in any court, and no notice to the accused, and no opportunity for a hearing or for an accused to confront his accuser, but then summarily to be executed. That is exactly what is happening today. Our nation was established to prevent just such unilateral and arbitrary action.
The clearest example relates to a Mr. Anwar al-Awlaki and Mr. Samir Khan, American citizens living in Yemen, killed by a remote controlled drone in September 2011. Mr. Awlaki’s 16 year-old son, a native of Denver, was targeted by an American drone and executed by remote control two weeks after Mr. Alawaki himself was. Does the United States contend that a16 year-old was such a grave threat to our national security that the Constitution didn’t apply?
Or is it OK to kill someone even if they are not a grave threat? What are the standards?
Undoubtedly, it is less risky for the people operating the drones, than for a soldier on the ground who would have to confront the alleged enemy. Is it sufficient justification to do so, merely because there is less risk to our own personnel to do it that way? How convenient to be able to rain down death on someone who has been targeted for killing, then go home to watch the evening sitcoms in the suburbs. Never mind all of the possibilities of misidentification or wrongful accusations.
Wouldn’t it be convenient if every nation could send pilotless drones over foreign nations and kill their alleged enemies? If what the United States is doing today, sending its drones into Pakistan, Afghanistan, Iraq, Somalia, Yemen, and who knows what other country, to kill the people on the President’s kill list, is legal, then by application of that logic, it must be legal for every other nation to send its drones into any other nation, including ours, and kill anyone it has on its secret list of enemies.
I submit that that defines a condition of anarchy where every nation becomes a source of state-sponsored terrorism.
Our argument for invading Iraq after 9/11 was that Iraq had been the source of state-sponsored terrorism. That allegation turned out to be false, and it also turned out that the Bush 43 White House in fact KNEW at the time it was false, but ordered that invasion anyway, in an apparent attempt to “get even” with Saddam Hussein for some slight against Bush 41. Or maybe it was just an opportunity for KBR-Halliburton to make a lot of money, but that’s another story.
When Bush 43 sent American forces against the Taliban, most of the US role seemed to be by high-altitude bombing of places like Tora Bora. There were relatively few troops on the ground in a huge nation.
The American public, with no draft, and no skin in the game, so to speak, because of its all-volunteer force, has become complacent. “What if a few soldiers get killed each week?” we ask. “They are all volunteers after all, aren’t they?” No one objects to an endless (eleven years and counting so far) war where only volunteers are at risk. Wouldn’t it challenge their patriotism to ask whether they were being sacrificed in a purposeless exercise? We would not be “supporting the troops” if we question their mission or tactics. Aside from the operation that killed Osama bin Laden, it looks to me as if the entire ground war is just a charm offensive to persuade the Afghan people we aren’t really bad guys. If we had intelligence that Osama bin Laden was in that house in Abbotabad, why didn’t we take him out with a drone? What, exactly, one must ask, is the definition of an “enemy combatant?” Is Osama bin Laden’s chauffer an “enemy combatant” because of his job description? The CIA seemed to think so when he was brought in after being captured, but he is free today.
At the time we invaded Afghanistan in 2001, it seemed to me that the ground game in Afghanistan was being conducted by CIA contracted private mercenaries and by local Afghan warlords who were out of favor with the Taliban. Much has been said over the last decade, about a class of persons called “enemy combatants,” since the CIA’s private contractors and warlord thugs from the Afghanistan Northern Alliance began dragging in children of their political enemies and claiming they were “terrorists. Those people were interrogated in secret by CIA operatives, then taken away to undisclosed locations often referred to as “black sites.”
How about the 14 year-old child who was allegedly captured on the ‘battlefield’ and was subsequently imprisoned at Guantanamo? How long was he at Guantanamo? Is he still there? We’ve all seen “Rambo III,” so it is easy to imagine an Afghan child with an AK-47. Does that make him an “enemy combatant” or is he just a child with an AK-47, or did he even have an AK-47 when he was captured? Perhaps he was just the offspring or relative of some warlord belonging to an opposing faction in Afghanistan? What are his crimes? Where is the evidence of his crimes? Who are his accusers? Where are the witnesses and what is the evidence?
Even mentioning “the battlefield” raises, or should raise, a question in our minds. What is the nature of the conflict? Where exactly is that battlefield? Who has what rights there? Who are the combatants and what are they fighting over?
To answer those questions, one must go back to the time right after 9/11 and recall the events that occurred.
At that time, the Taliban, notwithstanding their abominable treatment of women and oppressive and generally barbaric religious beliefs, were the legitimate government of Afghanistan.
I say “generally barbaric religious beliefs” with great respect for Islam, and I assert that the practices of the Taliban violated, and continue to violate, the principles of the Koran in numerous ways. Islam is a religion of peace, love, and fairness. The Taliban seem to violate Islam more than they follow it. It is, however, not a proper role for the United States to set itself up to judge the Taliban’s interpretation of Islam.
Despite all that, the Taliban were the legal government of Afghanistan when 9/11 occurred, having been established there with America’s help when we armed their predecessors, the mujahadeen, during the Soviet occupation of Afghanistan in the 1980s.
Immediately after 9/11, intelligence sources, which I do not believe have been disclosed, asserted that there were Al Quaeda training camps in Afghanistan, and that the Taliban was providing them protection. This may well have been true, however, it was equally true that Afghanistan was a sovereign nation with a recognized sovereign government.
When the US began demanding that Afghanistan turn over the Al Quaeda personnel in its territory, the government of Afghanistan properly requested the US to show them the proof that the Al Quaeda personnel in Afghanistan were somehow involved in 9/11.
The US government refused, citing security reasons and the classified nature of the information requested. As far as I know, the intelligence information proving the connection between the Al Quaeda training camps and the 9/11 attack on the United States has never been made public, and may not even exist at all. At that point, the government of Afghanistan appropriately refused to compromise its sovereignty, denied the US demand for access to the Al Quaeda personnel and the United States invaded Afghanistan, eventually deposing the Taliban government and establishing Hamid Karzai as the President of a more cooperative Afghan government created by the United States and its allies.
One has to ask, “If the Taliban government of Afghanistan had demanded that the US turn over an enemy residing inside the US (and there are probably a few in that category), but refused to provide the evidence of that enemy’s wrongdoing, and the United States refused to turn him over, would the government of Afghanistan have had a legitimate justification for an invasion of the United States?
I think not.
By that logic, the US did not have a legitimate justification for invading Afghanistan in 2001, either. Afghanistan had very legitimately refused, just as the US would in a parallel situation, asserting that the US demand, particularly since it was without proof, was a violation of Afghanistan’s sovereignty.
So if the US invasion of Afghanistan was a violation of the sovereignty of a foreign nation, which was NOT at that time at war with the United States, did the United States have ANY authority AT ALL to capture and detain any Afghan civilian that was out there in Afghanistan defending the sovereignty of Afghanistan against an illegal foreign invasion?
I suggest that, no matter how justified we felt after the thousands of deaths at the World Trade Center and Pentagon, we not only did not have a valid justification for invading Afghanistan, nor to arrest and detain Afghan citizens found in the process of that invasion; we had no valid authority to put them in prison, transport them to black sites in other nations, isolate them from the Red Cross and other aid agencies, or to subject them to various forms of torture or other inhuman treatment.
With all that in mind, perhaps the concept of using remotely piloted vehicles (drone aircraft) to kill people, whom we claim are terrorists, is not such a wild reach? We are already in violation of a number of the other rules of war.
Indeed, if we have violated the international laws of combat in so many other ways already, with President Bush’s advisors and President Obama’s advisors telling them, “go ahead, it’s OK, because this situation is so unique, and because we are so powerful that no other nation can stop us,” perhaps yet another violation of our own Constitution and international law isn’t any longer relevant? Is that what the secret legal opinion says?
I think that argument leads to the destruction of the United States, as we know it, and all we have stood for as a moral leader of the world for the last 200+ years.
The United States, and by that I mean the government and ALL the people of the US, because under our republican form of government, WE are the government, must find a way to cleanse ourselves of and atone for all the moral violations that we have perpetrated on the world for over a decade since 9/11, including kidnapping, imprisonment without any charge, extraordinary rendition and torture.
I suggest that there are several essential steps we must take, if we are to purge ourselves of these violations of our fundamental principles and regain our position as a leader of the world.
1. We must declassify and publish ALL the records regarding capture and treatment of prisoners accused of terrorism, by CIA personnel or anyone else paid by the United States or its allies. Persons who have violated international laws regarding treatment of prisoners must be tried and punished, no matter where in the chain of command they held a position. This includes everyone from the least civilian CIA contractor to the President. No one must be immune from the strictest scrutiny of his or her actions and prosecution, and just as in Germany after World War Two, it must not be an acceptable defense that “I was only following orders.” The actor who has violated the international laws of war must be prosecuted as well as the superior who gave the orders, and the most extreme punishment must be meted out to the givers of those orders at the top.
2. We must close immediately the concentration camp at Guantanamo, Cuba (and any others anywhere else in the world that we haven’t been told about yet), and move all of the detainees into regular federal prisons on the US mainland. The actions of Congress to block trials of the detainees in US Federal Courts is as despicable as the torture of detainees, because it effectively denies those people the ability to learn the details of, and respond to the charges against them and to get a fair trial. It denies the protections of the Bill of Rights against prohibited actions by the government, to a particular class of defenseless people who most especially are deserving of those protections. Any argument to deny them those protections must first assume that they are guilty, which violates the essential presumption of innocence that is at the heart of our jurisprudence.
3. An immediate study of each detainee’s case must be completed, in conjunction with the International Red Cross/Red Crescent, and each prisoner must be afforded the rights that international law provides and requires, recognizing that many of these prisoners have been held for over a decade without any charges or opportunity to defend themselves.
4. All of the requirements of federal law and international law, as they apply to each prisoner, including all the protections of the US Constitution, including the right to see all evidence against them and confront their accusers, shall be complied with.
The recent disclosure that someone outside of the war crimes tribunal in Guantanamo is controlling what is heard by the media reporting the trial is intolerable. More intolerable is the idea that conversations between the accused and their attorneys may have been listened in on by their captors. All such invasions of the rights of the prisoners should cease immediately, be disclosed to the media, and be available as defenses for the accused. Any person who participated in those invasions should be prosecuted.
5. All of the above has to be perfectly transparent to the entire world. After all of its violations of the rights of the detainees at Guantanamo, our government has forfeited any right to exclude any material from disclosure with claims that there is a “national security” reason for it to be withheld. If our government and nation is to stand, it must have clean hands, and that can’t happen while any of its despicable behavior remains a classified secret.
6. The statement by administration officials, that some prisoners, even if exonerated in the war crimes trials, would nevertheless continue to be held indefinitely, must be totally denounced, rescinded and abandoned. It violates every principle of our Constitution. If the government’s case is so weak that it cannot get a conviction and sentence through a regular federal court, the accused should be immediately released.
Terrorists are criminals. Treating them as something more than mere criminals not only validates their actions, it raises their stature in the eyes of others who would want to be like them.
Terrorist scum deserve to be treated as criminal scum, but they still deserve a presumption of innocence and a fair trial when they are our captives.
When the terrorists attacked America on 9/11, it was because they couldn’t bear what America stands for, religious, political and economic freedom. Their goal was to force us to give up our principles and become like them.
When a laser-guided missile, fired from an American remotely piloted vehicle, hits a home in some far-off nation where an alleged terrorist, and his family or friends, is believed to be living, it is in all essential respects no different from Mohammed Atta and his associates flying an airliner into the World Trade Center full of unsuspecting people. It is an act of terrorism, not a valid action of war. It is fateful to any civilized doctrine in the world. It is merely a statement that ‘might is right,’ a principle that we and all civilized peoples have long ago rejected.
War is a venue for heroes. It involves risk, danger, courage and sacrifice. It requires boots on the ground to track down, engage and if possible, arrest suspected terrorists. It isn’t merely a shooting gallery exercise.
If someone is believed to have participated, or is believed to be participating, in criminal terrorist actions against us, the proper action is to send troops to arrest that person, not to summarily kill him or her and all the people in his or her vicinity. Then subject him or her to a prompt public trial in a regular federal court, with all the protections that accused persons are guaranteed.
Drones are important military tools. They are good for surveillance of criminals and enemies, monitoring borders, controlling traffic, identifying threats, and monitoring peacekeeping.
But killing people with drones while sitting in a comfortable control room halfway around the world is the behavior of cowards. It is equivalent to the person who straps an explosive vest onto a child and sends him to board a bus full of people who are labeled as political enemies.
If we continue to use drones to kill our enemies, Mohammed Atta and Osama bin Laden will have won.
We will have become like them.
We will have simply become more criminal terrorists.
Every American patriot should contact his member of Congress today and demand that the use of drones for killing be stopped immediately.
Michael F. Chenoweth
Lieutenant Colonel, US Army, Retired
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