Drone Killing the Fifth Amendment

By Peter Van Buren, TomDispatch

17 February 14

Terrorism (ter-ror-ism; see also terror) n. 1. When a foreign organization kills an American for political reasons.

Justice (jus-tice) n. 1. When the United States Government uses a drone to kill an American for political reasons.

ow's that morning coffee treating you? Nice and warming? Mmmm.

While you're savoring your cup o' joe, imagine the president of the United States hunched over his own coffee, considering the murder of another American citizen. Now, if you were plotting to kill an American over coffee, you could end up in jail on a whole range of charges including -- depending on the situation -- terrorism. However, if the president’s doing the killing, it's all nice and -- let’s put those quote marks around it -- "legal." How do we know? We’re assured that the Justice Department tells him so. And that’s justice enough in post-Constitutional America.

Through what seems to have been an Obama administration leak to the Associated Press, we recently learned that the president and his top officials believe a U.S. citizen -- name unknown to us out here -- probably somewhere in the tribal backlands of Pakistan, is reputedly planning attacks against Americans abroad. As a result, the White House has, for the last several months, been considering whether or not to assassinate him by drone without trial or due process.

Supposedly, the one thing that’s held up sending in the drones is the administration’s desire to make sure the kill is "legal." (Those quotes again.)

Last May, Obama gave a speech on the subject. It was, in part, a response to growing anger in Pakistan, Yemen, and elsewhere over the CIA’s ongoing drone assassination campaigns with all their “collateral damage,” and to the White House’s reported “kill list.” In it, he insisted that any target of the drones must pose "a continuing and imminent threat to the American people." At the time, the White House also issued a fact sheet that stated: "Lethal force must only be used to prevent or stop attacks against U.S. persons, and even then, only when capture is not feasible and no other reasonable alternatives exist to address the threat effectively." While that sounds like a pretty imposing set of hurdles to leap, all of the "legal" criteria are determined in secret by the White House with advice from the Justice Department, but with no oversight or accountability.

Even then, it turns out that the supposedly tortured deliberations of the administration are not really necessary. Despite the president’s criteria, according to an unnamed administration official quoted by the Associated Press, Obama could make an exception to his policy and authorize the CIA to strike on a one-time basis, no matter what the circumstances. One way or another, it is Obama who decides who to kill and when.

Short-Term Questions

At this point, it’s unclear just why the Obama administration leaked its plans in reference to this errant American abroad. After all, official after official has insisted that Edward Snowden’s revelations of secret NSA documents have caused terrorists to change their communication tactics, yet the one American up to no good somewhere in the terrorist world apparently has not done so in response to the leak about his potential fate, and will remain locatable whenever needed as a target. And yet giving notice of a possible attack in advance in the media would, on the face of it, seem both counterproductive and an invitation to the very barrage of criticisms leveled by key officials at Snowden. After all, under the circumstances, an American connected with al-Qaeda wouldn’t exactly have to be a Bond villain to decide to change his behavior and his location, stay indoors or outdoors more, keep off his phone for a while or trade it in for another.

Could the administration leak have been a trick to flush the bad guy out, causing him to panic and run? Was it an elaborate ruse designed to induce widespread concern in al-Qaeda about the liabilities of having American compatriots? Was it a bone thrown to Republicans otherwise eager to paint the president as weak? Could it have been some kind of geopolitical muscle tussle with once compliant but now more assertively anti-drone Pakistan? Or could the leak have been a PSYOP on the American people, an attempt to manipulate us into feeling better about government decisions to kill American citizens by revealing the deliberative and heart-wrenching process Obama goes through? Or could it simply have been an attempt to normalize such acts for us, to make them part of the understandable everyday background noise of a dangerous world?

The answer is: we don’t know. Not yet anyway.

Not the First Time

The Obama administration admits to killing four Americans as part of its war on (or is it “war of”?) terror. We'll pause here a moment for you to contemplate whether there could have been other, undocumented killings of the same sort awaiting the revelations of some future Edward Snowden or Chelsea Manning.

On May 7, 2011, a U.S. drone fired a missile in Yemen aimed at American citizen and key terror suspect Anwar al-Awlaki. The missile blew up a car with two other people in it, quickly labeled “al-Qaeda operatives” after we killed them.

Such collateral killings should be no surprise. The inaugural article by Glenn Greenwald and Jeremy Scahill at their new media venture notes that the National Security Agency regularly identifies targets for CIA assassinations based on metadata analysis and cell-phone tracking. Rather than confirming that target’s identity, the CIA is evidently ready and willing to blow a suspect away based on the location of a mobile phone he assumedly is using. In other words, people can be killed because they borrowed the wrong cell phone. (So much for a deliberative process.)

The U.S. had tried to kill al-Awlaki before, including in the Bush years -- and missed. In justifying one of these assassination attempts, Obama’s counterterrorism chief, Michael Leiter, claimed that al-Awlaki actually posed a bigger threat to the U.S. "homeland" than Osama bin Laden, albeit without explanation. No matter, they finally got their man. A follow-up strike killed al-Awlaki, and another soon after obliterated his teenage son, also in Yemen. Though no one argues that the boy was in any way linked to terrorism and no administration official has bothered to explain just why he was targeted, former White House press secretary Robert Gibbs did comment that the killing was justified as he "should have had a more responsible father."

Couldn’t Happen Here?

Though the president and his officials go to great pains to indicate that such assassinations are only going to happen abroad, there is nothing in the carefully worded distinctions made by the White House to preclude them at home. As a start, in his criteria for killing someone extrajudicially, the president claims there is no difference between an American citizen terrorist and a foreign terrorist. A careful look back at the statements of two government officials makes it clear that thought has already gone into the question of bringing the killings home.

Remember the testimony then-FBI Director Robert Mueller gave before a House subcommittee in 2012? When asked point-blank if the president could order the killing of an American in the United States, he replied “Uh, I’m not certain whether that was addressed or not... I’m going to defer that to others in the Department of Justice.” Mueller, of course, had the option of saying flat-out, “No, no, of course the president can’t order a hit on an American here in the U.S. where the full judicial system, Constitution, and due process protections exist! Are you mad?”

The truth emerged only in 2013 when Senator Rand Paul asked point-blank whether the president could authorize lethal force, such as a drone strike, against an American citizen in the United States. Attorney General Eric Holder fired back that while the question was "hypothetical," the real-world answer was yes. Holder said he could imagine "an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the president to authorize the military to use lethal force within the territory of the United States."

It’s easy enough, in fact, to imagine the sort of scenarios that might lend themselves to such an act: a ticking time bomb, a killer believed to have anthrax and on the loose, a suspected dirty-bomb maker in a desolate location, terrorists with a bus full of children on a mountain top. Imagine a slippery slope and... presto! You’re there.

They've thought about it. They've set up the legal manipulations necessary to justify it. The broad, open-ended criteria the president laid out for killing suspected terrorists exposes the post-Constitutional stance our government has already prepared for. All that's left to do is pull the trigger.

Nostalgia for the Fifth Amendment

It’s still possible to remember, almost nostalgically, how the Fifth Amendment used to guarantee Americans due process. The key phrase was indeed that "due process." It meant the government could not take away your property or imprison or execute you without first allowing you a chance to defend yourself. You would have your day in court with a lawyer and a jury of your peers to make the final decision. This would all be quite public and the people involved would be held accountable for their actions. The Fifth was meant by those who wrote it as a check on the ultimate in government excess: the purposeful taking of citizens’ lives. Today, it increasingly seems an artifact of a quaint past, as seemingly lost to history as the corded phone or manual typewriter.

Attorney General Eric Holder publicly rewrote the Fifth Amendment in 2012, declaring, in a veiled reference to al-Awlaki, “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’” In other words, in a pinch, skip the courts. In this way, Holder gave us a peak behind the White House curtain, making clear that the president's personal and secret decision to kill an American, perhaps made over morning coffee, was, in his opinion, good enough to make everything legal.

The due process question Holder dismissed so casually still looms large over al-Awlaki's murder. Prior to the killing, attorneys for his father tried to persuade a U.S. District Court to issue an injunction preventing the government from killing him in Yemen. A judge dismissed the case, ruling that the father did not have “standing” to sue and that government officials themselves were immune from lawsuits for actions carried out as part of their official duties.

This was the first time a father had sought to sue the U.S. government to prevent it from killing a son without trial. The judge did call the suit “unique and extraordinary,” but ultimately passed on getting involved. He wrote instead that it was up to the elected branches of government, not the courts, to determine if the United States has the authority to extrajudicially murder its own citizens.

The judge’s position was revealing of our moment. The extrajudicial killing of an American citizen seemed to him to be nothing but a political question to be argued out in Congress and the White House, not something intimately woven into the founding documents of our nation. The judge was not alone in his characterization of the problem. Mike Rogers, chair of the House Intelligence Committee, complained that the killing of more terror suspects in a similar manner has been held back by “self-imposed red tape.”

There are, however, no footnotes in the Fifth Amendment, no caveats, no secret memos, no exceptions for terrorism, mass rape, child torture, or any other horror the U.S. has confronted in its 238 years of existence. Such addendums to the Fifth were unnecessary, because in the beautiful preciseness of Lincoln’s phrasing at Gettysburg, ours is “a government of the people, by the people, for the people,” one made up of us, beholden to us, and whose purpose is to serve us.

Such a government would be incapable of killing its own citizens without due care, debate, and open trial. Those actions would violate the sacred convent of trust between a people and their government in a democracy, the "consent of the governed," and delegitimize the government itself.

That last point is worth a closer look, because it makes clear what murder-by-decree really represents in post-Constitutional America. The phrase "consent of the governed" first appears in the Declaration of Independence, the document by which the United States declared itself no longer under the governance of the British king. The Declaration makes clear that a government's moral right to use state power is only justified and legal when derived from the people over which that power is exercised. Such consent is the opposite of the divine right of kings, the philosophy under which the British ruled colonial Americans. Its foundational principle was obedience to government and its edicts and decisions, even on issues of life and death, as a religious and moral obligation.

Following the more philosophical Declaration of Independence, the Bill of Rights was a practical exercise written to address directly the specific injustices of rule by royal decree. By turning its back on key elements of our founding, Washington, it seems, has brought us full circle.

Life in Post-Constitutional America

These days in the pseudo-debates about drone killings in the mainstream media, such changes are treated as matters of no great significance. On the day that the president’s latest plans for the murder of a fellow citizen in the distant tribal backlands of Pakistan first appeared, they caused little stir. The headlines were instead dominated by Olympic gossip and an impending ice storm in Atlanta. Killings extrajudicially mandated by the White House? The Fifth Amendment? Maybe if the target were Shaun White in Sochi, more people would have cared.

At the moment, we are threatened with a return to a pre-Constitutional situation that Americans would once have dismissed out of hand, a society in which the head of state can take a citizen’s life on his own say-so. If it’s the model for the building of post-Constitutional America, we’re in trouble. Indeed the stakes are high, whether we notice or not.

The question is: How far will post-Constitutional America stray from the nation so conceived in the Declaration of Independence and the Bill of Rights? Because in the twenty-first century, the midnight knock on the door may come not from the King’s men, but from the sky.

Does Nixon's 'Treason' Boost LBJ's Legacy

By Robert Parry, Consortium News

17 February 14

The Vietnam War has doomed President Lyndon Johnson to a lowly status among presidents, overshadowing his domestic successes. But LBJ’s ranking might change if the new evidence on Richard Nixon sabotaging LBJ’s Vietnam peace talks were factored in, writes Robert Parry.

front-page article in Sunday’s New York Times cited complaints from Lyndon Johnson’s daughter, Luci Baines Johnson, and veterans of LBJ’s administration that the late president’s legacy was excessively tarnished by the Vietnam War, obscuring his landmark social legislation advancing civil rights, medical care for the elderly, and environmental protections.

Pegged to Presidents’ Day weekend – and the upcoming half-century anniversary of many LBJ accomplishments – the article cites a recent CNN/ORC poll asking Americans how they rated the last nine presidents and putting Johnson at number seven behind Jimmy Carter and ahead of only George W. Bush and Richard Nixon.

But what isn’t addressed in the article is how Americans might have assessed Johnson if his plan for ending the Vietnam War in 1968 had not been sabotaged by Nixon’s presidential campaign, a reality now well established by documents and tape-recordings declassified by the National Archives but still outside the frame of most mainstream journalists and ignored by conventional historians.

I encountered this “lost history” when doing research at the Lyndon Johnson Library in Austin, Texas, in 2012 and published a lengthy story at Consortiumnews.com and in my latest book, America’s Stolen Narrative. After my reporting, the BBC published an account in 2013 recognizing the significance of the new evidence.

But there appears to be a stubborn refusal at places like the New York Times and among establishment historians, like Doris Kearns Goodwin, to acknowledge this new material. Perhaps they’re waiting for the ponderous LBJ authority Robert Caro to bless the information in his final volume on the 36^th President.

Or perhaps it would embarrass them too much for having missed this crucial material in their own writings about Johnson. Or maybe they think the evidence seems too conspiratorial, including the fact that many of the documents are contained in a file that LBJ’s national security adviser Walt Rostow labeled “The ‘X’ Envelope” and that archivists at the library privately call their “X-File.”

Whatever the reason, the failure to address this remarkable cache of evidence has distorted how Americans regard Johnson. It would seem to me that if the people knew that Johnson really was committed to bringing the war to an end before he left office, they might view him more charitably and regard Nixon with even greater contempt.

Reluctant Warrior?

That wouldn’t mean that Johnson would – or should – escape blame for his decisions that sent a half-million U.S. combat troops to Vietnam and inflicted unspeakable carnage on the people of Indochina. More than 30,000 American soldiers died during LBJ’s presidency along with possibly a million Vietnamese.

While Johnson’s defenders have called him a reluctant warrior – his daughter was quoted as saying “nobody wanted that war less than Lyndon Johnson” – he nevertheless signed off on the decisions that dispatched the troops and ordered the bombing campaigns. Even if he felt cornered by the ghosts of Joe McCarthy and other anti-communist zealots, Johnson still was the chief executive principally responsible for the catastrophe.

Yet, what is also clear from the new evidence is that Johnson genuinely wanted to bring the war to an end before he left office. Many Americans, including myself, had long doubted Johnson’s sincerity. After all, there had been many lies that paved the way into the hell of the Vietnam War – and Johnson had told his share of them.

However, when I began listening to the audiotapes of Johnson phone conversations from fall 1968 and began reviewing the documents from Rostow’s “The ‘X’ Envelope,” I couldn’t escape the conclusion that Johnson was committed to ending the war as quickly as possible.

When Johnson learned of Nixon’s sabotage of the Paris peace talks – by getting South Vietnamese President Nguyen van Thieu to boycott them in exchange for promises of a better deal under a Nixon administration – LBJ referred to the maneuver as “treason” and fumed to his confidantes, including Republican Senate Minority Leader Everett Dirksen.

And among the White House inner circle, Johnson seemed the most inclined to go public with the evidence before the 1968 election, but he was dissuaded by several top aides, including Defense Secretary Clark Clifford who told Johnson, “Some elements of the story are so shocking in their nature that I’m wondering whether it would be good for the country to disclose the story and then possibly have a certain individual [Nixon] elected.”

Impact on Watergate

This new history on Nixon’s “treason” also changes our understanding of the Watergate scandal, which began to take shape nearly three years later. The fact that Johnson in January 1969 secretly ordered Rostow to take with him the file on Nixon’s peace-talk sabotage – what Rostow then labeled “The ‘X’ Envelope” – clarifies the longstanding mystery of why Nixon launched his “Plumbers” operation in June 1971, thus setting in motion what would become the Watergate scandal.

In June 1971, after U.S. newspapers began publishing Daniel Ellsberg’s leaked Pentagon Papers which catalogued mostly Democratic lies about Vietnam through 1967, Nixon immediately recognized his own vulnerability to a possible sequel if the missing file on his 1968 treachery ever surfaced.

After entering the White House in 1969, Nixon was told by FBI Director J. Edgar Hoover about the existence of the file but a search by top aides, Henry Kissinger and H.R. “Bob” Haldeman, failed to locate it. So, on June 17, 1971, as the Pentagon Papers dominated the front pages of American newspapers, Nixon ordered a redoubling of the search for the missing 1968 file, even to the point of authorizing a break-in at the Brookings Institution where Nixon thought the file might be.

In other words, understanding the significance of Nixon’s “treason” in 1968 not only changes the accepted history of the Vietnam War and of Johnson’s presidency, but it could fundamentally alter the conventional wisdom about Watergate as well.

In one small blessing, this fuller understanding of Watergate – and what Nixon was desperate to cover up – might finally drive a stake through the heart of the Watergate-era trope endlessly recited by the mainstream U.S. news media that “the cover-up is always worse than the crime!” That silliness might not survive a recognition that the “crime” that Nixon was ultimately covering up was his treachery that blocked peace talks which might have saved the lives of more than 20,000 U.S. soldiers and maybe a million more Vietnamese. [See Consortiumnews.com’s “The Dark Continuum of Watergate.”]

But perhaps two such radical rewrites of supposedly well-known histories – the Vietnam War and Watergate – were too much for the likes of the New York Times and establishment historians to absorb. Indeed, knowing the fuller story might make them look like utter incompetents for missing such important aspects of two pivotal events from such a recent era.

So, for the purpose of face-saving at least, it might make more sense for the Times and “respected historians” to simply leave the old narratives in place, even if that distortion of history serves to further discredit President Johnson and his historic accomplishments.