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Cole writes: "Here are five objections to the vision of the memo, which it seems to me is directly contrary to the spirit and the letter of the US constitution. It is contrary in profound ways to the ideals of the founding generation."

Juan Cole; public intellectual, prominent blogger, essayist and professor of history. (photo: Informed Comment)
Juan Cole; public intellectual, prominent blogger, essayist and professor of history. (photo: Informed Comment)

Top Five Objections to the White House's Drone Killing Memo

By Juan Cole, Informed Comment

06 February 13


BC's Michael Isikoff has revealed the text of a white paper composed for Congress by the Department of Justice that sheds light on the legal arguments made by Eric Holder in justifying the killing by drone strike of Americans abroad, who are suspected of belonging to al-Qaeda. That the memo did not even require that the US know of a specific and imminent plot against the US, of which the al-Qaeda member was guilty, for it to kill him from the skies, alarmed all the country's civil libertarians.

Here are five objections to the vision of the memo, which it seems to me is directly contrary to the spirit and the letter of the US constitution. It is contrary in profound ways to the ideals of the founding generation.

1. In the Western tradition of law, there can be no punishment without the commission of a specific crime defined by statute. The memo does not require that a specific crime have been committed, or that a planned criminal act be a clear and present danger, for an American citizen to be targeted for execution by drone.

2. To any extent that the president's powers under the memo are alleged to derive from the 2001 Congressional Authorization for the Use of Military Force, i.e. from the legislature, they are a form of bill of attainder (the History Learning Site explains what that is here):

"A bill, act or writ of attainder was a piece of legislation that declared a person or persons guilty of a crime. A bill of attainder allowed for the guilty party to be punished without a trial. A bill of attainder was part of English common law. Whereas Habeus Corpus guaranteed a fair trial by jury, a bill of attainder bypassed this. The word 'attainder' meant tainted. A bill of attainder was mostly used for treason . . . and such a move suspended a person's civil rights and guaranteed that the person would be found guilty of the crimes stated in the bill as long as the Royal Assent was gained. For serious crimes such as treason, the result was invariably execution."

What, you might ask, is wrong with that? Only that it is unconstitutional. Tech Law Journal explains:

"The Constitution of the United States, Article I, Section 9, paragraph 3 provides that: "No Bill of Attainder or ex post facto Law will be passed." . . .
"These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted. A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment." William H. Rehnquist, The Supreme Court, page 166.

The form of the AUMF, in singling out all members of al-Qaeda wherever they are and regardless of nationality or of actual criminal action, as objects of legitimate lethal force, is that of a bill of attainder. Congress cannot declare war on small organizations - war is declared on states. Such a bill of attainder is inherently unconstitutional.

3. The memo's vision violates the principle of the separation of powers. It makes the president judge, jury and executioner. Everything is done within the executive branch, with no judicial oversight whatsoever. The powers the memo grants the president are the same enjoyed by the absolute monarchs of the early modern period, against whom Montesquieu penned his Spirit of the Laws, which inspired most subsequent democracies, including the American. Montesquieu said:

"Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.
There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.
Most kingdoms in Europe enjoy a moderate government because the prince who is invested with the two first powers leaves the third to his subjects. In Turkey, where these three powers are united in the Sultan's person, the subjects groan under the most dreadful oppression.

Ironically, given contemporary American Islamophobia, the Obama administration has made itself resemble not the Sun-King, Louis XIV, who at least did have a court system not completely under his thumb, but rather, as Montesquieu saw it, the Ottoman sultans, who he claimed combined in themselves executive, legislative and judicial power. (Actually the Muslim qadis or court judges who ruled according to Islamic law or sharia were also not completely subjugated to the monarch, so even the Ottomans were better than the drone memo).

3. The memo resurrects the medieval notion of "outlawry" - that an individual can be put outside the protection of the law by the sovereign for vague crimes such as "rebellion," and merely by royal decree. A person declared an outlaw by the king was deprived of all rights and legal protections, and anyone could do anything to him that they wished, with no repercussions. (The slang use of "outlaw" to mean simply "habitual criminal" is an echo of this ancient practice, which was abolished in the UK and the US).

I wrote on another occasion that the problem with branding someone an "outlaw" by virtue of being a traitor or a terrorist is that this whole idea was abolished by the US constitution. Its framers insisted that you couldn't just hang someone out to dry by decree. Rather, a person who was alleged to have committed a crime such as treason or terrorism had to be captured, brought to court, tried, and sentenced in accordance with a specific statute, and then punished by the state. If someone is arrested, they have the right to demand to be produced in court before a judge, a right known as habeas corpus ("bringing the body," i.e. bringing the physical person in front of a judge).

The relevant text is the Sixth Amendment in the Bill of Rights:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

4. The memo asks us to trust the executive to establish beyond the shadow of a doubt the guilt of an individual in a distant land, to whom access is so limited that the US cannot hope to capture him or have local authorities capture him. But Andy Worthington has established that very large numbers of the prisoners the US sent to Guantanamo were innocent of the charges against them. If the executive arm of the government can imprison people mistakenly, it can blow them away by drone mistakenly. A US government official once told me the story of an Iraqi Shiite who had fled persecution under Saddam through Iran all the way to Afghanistan. In 2001, locals eager to make a buck turned him in as "Taliban" to the US military, which apparently did not realize that Iraqi Shiites would never ever support a hyper-Sunni movement like that. So the Iraqi Shiite was sent to Guantanamo and it could even be that Taliban themselves were paid by the US for turning him in. The official may have been speaking of Jowad Jabar. These American officials are way too ignorant to be given the power to simply execute human beings from the sky on the basis of their so-called 'intelligence.'

5. The memo, as Glenn Greenwald points out, ratifies the Bush/Cheney theory that the whole world is a battlefield on which the US is continually at war. Treating the few hundred al-Qaeda, spread around the world in 60 small cells, as an enemy army, making them analogous to German troops in WW II, is insane on the face of it. Our current secretary of state, John Kerry, largely rejected the notion. Al-Qaeda consists of criminals, not soldiers, and they pose a police counter-terrorism problem, not a battlefield problem. The notion that the whole world is a battlefield violates basic legal conceptions of international law such as national sovereignty. your social media marketing partner


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+27 # PABLO DIABLO 2013-02-06 12:33
"I don't got to show you no stinking badges" --George W Bush
+4 # edge 2013-02-06 13:53
"I don't got to show you no stinking badges" --George W Bush

+23 # engelbach 2013-02-06 15:08
No difference.
+2 # noitall 2013-02-06 17:27
Quoting edge:
"I don't got to show you no stinking badges" --George W Bush


The difference is subtle!!!
+17 # noitall 2013-02-06 17:30
"the whole world is a battlefield" that would explain the militarization of our police and the presence of drones, etc. and the treatment of Peaceful Protest in the U.S. of A.
+12 # Floridatexan 2013-02-06 18:21
But wasn't the legal basis for these actions set by counsel for the Bush administration when he declared the "War on Terror"? And didn't Gonzales & Yoo set the legal argument around that policy? OVER TEN YEARS AGO?
+6 # Nominae 2013-02-07 02:49
Quoting edge:
"I don't got to show you no stinking badges" --George W Bush


Geez, edge, ease up on the coffee. This crap started under Bush with all of his signing statements putting him above the law.
+56 # peterjkraus 2013-02-06 12:52
Professor Cole is correct on all points.

All persons justifying their deeds with Holder's legal arguments are just as misguided as Germans justifying their deeds with (at the time) current German law -- and they were hanged by the American court in Nuremberg.

Don't go to Den Haag (The Hague) any time soon, boys. You're war criminals.
+5 # 666 2013-02-06 15:28
thank you Peter!
aumf = bill of attainder or enabling act? maybe both?
0 # Malcolm 2013-02-06 21:47
Quoting 666:
thank you Peter!
aumf = bill of attainder or enabling act? maybe both?

I think it must stand for Authorized Use of Military Force, but I'm not sure.
+12 # aaheart 2013-02-06 21:44
The Nuremburg Military Tribunal was in violation of our constitution because it was based on ex post facto law. War criminals were prosecuted on laws that did not yet exist when committed. Once again an American President is using ex post facto law in violation of the US Constitution.

Clearly the military oath is not very functional either since there is little outcry from retired military nor from officers in the military. They have become accessories and guilty of violating their oaths just as Obama did.

If honor really meant anything to military brass, Bush would have been arrested and tried for treason and Obama would never have had the chance to be just as vile and unAmerican.
+8 # stannadel 2013-02-07 04:16
The Americans insisted that one of main charges at Nuremberg had to do with planning and waging a war of aggression precisely because that was already a crime. The Nuremberg Trials were also carried out under international law and the US Constitution wasn't applicable--so let's stop covering up for Nazis. Of course in this case the US Constitution is applicable.
+5 # RLF 2013-02-07 07:36
It seems like the biggest problem here is that the court system in this country has been allowed to become so broken, because it is profitable for lawyers, that no administration wants to bother with 10-15 years of tax payer supported trials for each dickhead. I've been through the courts and have seen it first hand...ridiculo us! They need to be fixed, but won't be...that is just another reason this country is quickly becoming irrelevant.
Excellent article! Thank you Prof. Cole
0 # WestWinds 2013-02-06 13:58
Where are all of the other comments?
+5 # 666 2013-02-06 15:30
"The Constitution of the United States, Article I, Section 9, paragraph 3 provides that: "No Bill of Attainder or ex post facto Law will be passed." . . .

which btw reminds me that mca & tca laws are totally unconstitutiona l
+12 # James Marcus 2013-02-06 13:59
Impeach the Drone Ranger. Prosecute ALL Dronies.
+31 # WinslowMyers 2013-02-06 14:05
This is clearly thought-through , well-researched , and elegantly expressed. It deserves wide circulation in order to stimulate what ought to be a broad debate among citizens about a significant issue of constitutional law.
+27 # Bob P 2013-02-06 14:06
I'm an old man in my 80's. My experience is that when we are at war, the constitution is pretty well suspended. I don't know if that has a legal basis or has just been a matter of popular support. I agree with the points in the article. I am opposed to use of drones now. But if we are legally at war on terrorism (stupid idea) then I would expect that we would be killing terrorists and nearby innocent civilians without reading them their Miranda rights, or regard for our constitution. Which is wrong, stupid, evil but common in our current level of enlightened civilization.
+5 # bluesapphire48 2013-02-06 14:41
Saying that we are at law with an "-ism," is like saying we are at war with air. HOw can you be at war with a method? The fact of the matter, though, is that "Islamic extremists" are at war with Western "civilization" and all the genocide and greed that it embodies.
+5 # Kootenay Coyote 2013-02-06 17:34
The US Constitution is not & has not been suspended during wartime: but it is certainly being defied.
+15 # futhark 2013-02-06 18:54
The Constitution is the instrument by which the People grant authority to certain persons to execute policies for the greater good. The Constitution may not be suspended in time of war. The right of habeas corpus may be suspended in the case of an invasion or rebellion, none of which has happened since 1865. In 1944, when the United States was legally at war, elections were held as legally mandated. The Supreme Court also later ruled that the internment of persons of Japanese descent during that time was unconstitutiona l. The United State is not now at war and has not been at war since the Treaty of San Francisco became effective on April 28, 1952.

The "War on Terror" is a flim-flam invented by the military-indust rial complex and the surveillance state apparatus to justify continuing their costly and liberty-infring ing programs after the collapse of the Communist threat in 1991. It is no coincidence that Saddam Hussein and al Queda were perceived as a mortal threat at exactly this juncture in history.
+24 # Anonymot 2013-02-06 14:17
This all reminds me of Malcolm X when he said he'd rather have George Wallace as President than Kennedy, because at least he knew where Wallace stood.

We have been tricked by our political leaders of all stripes. We have been led to believe that this is a Democracy when, in fact we are living under a system them gives one man one vote and - usually - acceptable access to the ballot box. Where it fails pitifully is in the democratic obligation for competing parties to have a clearly enunciated ideology or set of actions that are their foundation and a set of leaders, both the elected & appointed, who will truly carry out those goals. By lies, exaggerations, and ommissions we have diverted Democracy to Hypocracy as a government form. It's worthy of Barnum - or Hitler.

It's unworthy of America.

There are a number of actual or freshly past leaders who held internationally observed and approved election who really and truly did exactly what they promised: Bush & Co., Assad, Morsi, Netanyahu, Quaddafi, etc. But "we" don't like them, because they aren't "us" and, worse, they don't like us.

We're in a very deep hole and via his acts & appointments Obama is rapidly digging it deeper.
+8 # RobertMStahl 2013-02-06 15:06
Great article. Thanks for the law lesson. T
+8 # Martintfre 2013-02-06 15:33
Dictators have no need for the constraints of Constitutions.
+13 # Quickmatch 2013-02-06 16:41
Once upon a time I thought that giving the state permission to execute a person--after a legal trial by jury determined that person's guilt of an offence punishable as a capital crime--was extreme, and wrong. Time passed, and I discovered that many people had been convicted of capital crimes and later proved innocent; many before execution, some (one is too many) after execution.

Now, here we are on the verge of giving the state permission to execute a person without trial. This, by any sane consideration, is wrong. That President Obama is following that path indicates his position is little different from the vast array of conserfatives who want to kill to assure their own safety; THAT is the body and soul of cowardice. I suggest the President leave such to the conservatives, or declare that he has abandoned the liberal, progressive path for the low road.
+4 # 2013-02-06 20:36
Elegant and compelling point.
+7 # Eldon J. Bloedorn 2013-02-06 16:54
How and where does one punish the biggest bully on the block? We have a military force larger than the next 16 military organizations combined. And most of whom are our allies.
+10 # noitall 2013-02-06 17:38
It is distressing to all of us who believed in Obama's rhetoric the first term and had no choice the second term (although he showed his character during his first term), to see Barack Obama acting today like the one who flunked out of his class on the U.S. Constitution rather than the one who taught the class! This is what I would call a TOTAL trust in the TOO BIG TO JAIL defense! He doesn't have the too "STUPID" defense that Bush Jr. had...
+7 # aaheart 2013-02-06 21:55
There WAS a choice, but people would have had to write in his name. Americans are too enamored of the two party system, giving the control of the election to the bosses who run the parties and to the bosses run the bosses from the shadows. Choosing the lesser evil is not the only way to run a country. One can also just vote his;her conscience regardless of its effect on the election results. Not enough people voted their conscience and the lesser evil is still very evil.
+11 # futhark 2013-02-06 18:43
Barack Obama has been represented as a "Constitutional scholar". It appears to me that if he was a student in Juan Cole's American government class, his current grade could be nothing greater than an "F".
+13 # sdraymond 2013-02-06 20:40
Until drones killed 'Americans', there wasn't even much of a debate, nor was there much of an outcry over the use of drones. I do not understand why an 'American' life is considered more sacred than the life of any other human on the planet.

We should have all been as outraged over the extra-judicial killings in Iraq, Afghanistan and Pakistan as we are about the killing of three American citizens in Yemen.
+16 # charsjcca 2013-02-06 21:23
This is NOT the America I volunteered to defend on May 10, 1955. Our Congress needs to convene and have a discussion of what this America is about. This is neither Democrats, Republicans nor Independents. This is truly a WE THE PEOPLE time. Do no squander it.
+4 # songtale 2013-02-06 22:30
It's time for a new political allegory!

+2 # nealjking 2013-02-07 10:35
I understand the concern about civil liberties, due process, and the Constitution.

Yet I am also concerned about the current situation, in which:
- A few individuals can cause a great deal of harm with relatively few resources;
- May be located in the country or out;
- May be citizens or non-citizens.

To wait until after the deed is done is right from the perspective of pure legality, but wrong from the perspective of public safety. Indeed, wouldn't the families of the victims have a valid claim: "You knew this plot was in plan, and you just WAITED?!?"

It is silly to fight "terrorism" as such; but it was not silly to fight al Qaeda (and we should have done so more thoroughly and consistently). Unfortunately, al Qaeda cannot be counted on to inspire only non-US-citizens who are outside US territorial borders. So what is the right balance?
+2 # mrbadexample 2013-02-07 14:42
Excellent article. There’s also compelling evidence that the drone strikes may be a violation of international law (military action taken without a formal declaration of war). A peace group in Syracuse, NY has written up a war crimes indictment against Obama for the drone wars, and peace activists have already gone to prison for protesting at the US bases. If you want to support these groups, there is information here on their programs and the support needed.
+1 # Dave45 2013-02-07 23:21
We will soon come to realize just how virile is our "democracy" (and the Democratic Party) when we see how many in Congress are willing to challenge (to the point of pushing for an impeachment hearing) Mr. Obama on this egregious memo.

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