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Heuvel writes: "The national security state, operating under the president's power as commander in chief, now claims the right to make war or peace, and to kill an American citizen even in America without a hearing."

US Attorney-General Eric Holder. (photo: J. Scott Applewhite/AP)
US Attorney-General Eric Holder. (photo: J. Scott Applewhite/AP)

Our 'Government of Laws' Is Now Above the Law

By Katrina vanden Heuvel, The Washington Post

14 March 13


he government of the United States," wrote Chief Justice John Marshall in his famous decision in Marbury v. Madison, "has been emphatically termed a government of laws, and not of men." This principle - grounded in the Constitution, enforced by an independent judiciary - is central to the American creed. Citizens have rights, and fundamental to these is due process of the law.

This ideal, of course, has often been trampled in practice, particularly in times of war or national panic. But the standard remains, central to the legitimacy of therepublic.

Yet last week Attorney General Eric Holder, speaking for the administration with an alarmingly casual nonchalance, traduced the whole notion of a nation of laws.

First, the attorney general responded to Sen. Rand Paul's inquiry as to whether the president claimed the "power to authorize a lethal force, such as a drone strike, against a U.S. citizen on U.S. soil and without trial." After noting that the United States has never done so and has no intention of doing so, Holder wrote that, speaking hypothetically, it is "possible to imagine" an extraordinary circumstance in which that power might become "necessary and appropriate."

This triggered Paul's now-famous 13-hour filibuster against the nomination of John Brennan to head the CIA, as Paul (R-Ky.) promised to "speak until I can no longer speak" to sound the alarm that "no American should be killed by a drone on American soil without first being charged with a crime" and being found guilty in a court of law.

In response to the growing furor, Holder sent Paul another letter, stating clearly that the president has no authority to use a "weaponized drone" against an American in the United States who is "not engaged in combat."

But that, of course, only begs the question. The country is waging a war on terrorism that admits no boundary and no end. Now Holder is saying that the president has the authority to kill Americans in the United States if they are "engaged in combat." No hearing, no review, no due process of law. For those who remember how the FBI deemed Martin Luther King Jr. a communist, and how the national security apparatus termed Nelson Mandela a terrorist, alarm is surely justified.

Then, the attorney general, while testifying before the Judiciary Committee, was challenged by Sen. Charles Grassley (R-Iowa) about the glaring absence of any indictments against leading bankers or big banks coming out of the financial collapse. Holder responded that, essentially, these banks were too big to jail.

"The size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if you do prosecute, if you do bring a criminal charge, it will have a negative impact on the national economy," he said.

This astounding admission of what clearly has been administration policy helped spur newly elected Sen. Elizabeth Warren (D-Mass.) to grill regulators at a separate banking committee hearing. Asking why there was no indictment of the big British bank HSBC, which settled after after an investigation found that it laundered billions of dollars from Iran, Libya and drug cartels despite repeated cease-and-desist warnings, Warren expressed the public's exasperation.

"If you're caught with an ounce of cocaine, the chances are good you're going to go to jail. If it happens repeatedly, you may go to jail for the rest of your life," Warren said. "But, evidently, if you launder nearly a billion dollars for drug cartels and violate our international sanctions, your company pays a fine and you go home and sleep in your bed at night - every single individual associated with this. And I think that's fundamentally wrong."

Taken together, the attorney general's astounding claims undermine the whole notion of a nation of laws.

The national security state, operating under the president's power as commander in chief, now claims the right to make war or peace, and to kill an American citizen even in America without a hearing.

The 12 largest U.S. banks - "systemically significant financial institutions," in the words of the Dodd-Frank reform legislation - control 69 percent of all financial assets, according to the conservative president of the Federal Reserve Bank of Dallas, Richard Fisher. As we have seen, they have the capacity to blow up the economy from their own excesses. Yet they now can apparently trample the laws with impunity, confident that they risk, at worst, an infrequent fine that is the equivalent in relation to their earnings of a New Yorker paying a parking ticket.

The laws, Cicero wrote in the days of the Roman Republic, "are silent in time of war." But what if the war has no end, no defined enemy, no defined territory? How can markets work if the financial behemoths are too big to fail and too big to jail?

If the national security state has the power of life or death above the law, and Wall Street has the power to plunder beyond the law, in what way does this remain a nation of laws? your social media marketing partner


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+16 # indian weaver 2013-03-14 08:18
We are now a rogue fascist regime ruled by terrorists and torturers, despoilers of all: the environment / planet, water air ground. All living things are targets and victims of our cruel vicious government / obama / dubya. Welcome to the Cancer Ward. It's over, but the collapse into mayhem is yet to come. However, the collapse into personal individual mayhem has already arrived for millions of americans and millions victimized by america's lawless fascist state outside our borders. Find a place to hide and arm yourself against FBI / drones / government stooges remanding you for torture in Egypt / Poland / etc. The FBI will set you up as a criminal, that's their m.o. to justify their existence. Obama is a liar and coward in the mold of dubya and dick, just as vicious as them. Obama's legacy is cowardice and worldwide cruelty. Obama has us on a one-way road to worldwide hell.
+2 # Doubter 2013-03-14 22:39
"Fascist" is a good label for what we have been led to like lambs to the slaughter. My favorite label for what we have become is: "National Security State." It has the same totalitarian 'ring' as "Homeland Security." Every time I hear or read "Homeland Security," both Adolf's and Uncle Joe's mustaches pop up in my mind and I can't decide which dictatorship "Homeland Security" fits best.
I was in Germany WWII and remember some of the propaganda posters. The phrase would fit perfectly; but then I bet Stalin used it for sure!
+2 # Anarchist 23 2013-03-15 20:07
Doubter: I like to put it in German-Der Heimat (the Homeland) and Geheim Staats (Security States) The US has been drifting towards Fascism since the 1930's; WWII and Roosevelt's anti-Fascism was only an interim.
+15 # Susan1989 2013-03-14 09:01
We need to go back to separation of banks and brokerage houses.
+10 # neohip 2013-03-14 09:56
Such shock! The Global Corporate Empire is not beholden to any government. We are a nation of laws only if we do their bidding.Is murder only reprehensible if it involves an American citizen? This is a constitution scholar who is making these decisions. The TPP will end nation sovereignty. A nation of laws?? Who fills our prisons? What good is a nation of laws if justice is skewered? Our laws serves our masters. Governments only carry out the orders. You played your part well and yes, it hurts, to realize you have been played. The American Dream is a raisin in the sun.
+1 # Anarchist 23 2013-03-15 20:09
neohip: In this case I find it useful to remember a D&D term from the Wayback: 'Lawful Evil'. SCOTUS and POTUS have certainly demonstrated they understand the concept!
+9 # Rita Walpole Ague 2013-03-14 10:13
A.G. Holder, and his asst. A.G. Perez - no Constitutional rights for we the sheeple do they give a damn about. Learned this I did, firsthand (Google: Colorado Springs Independent, Jan.21, 2010, "No Peace or Justice"). Does not matter how blatant the injustice is. The only thing now that's not been thrown into the toilet is the right of this evil, villainaire ruled non-govt. of ours to rip off and/or rip up anyone, anytime it so chooses. Time we the sheeple wake up.
+15 # Walter J Smith 2013-03-14 11:35
Every day the US Government has less and less discernable relationship to the US Constitution, to the United States of America, the US sentient citizens, and more and more umbilical ties witht the fictional citizens it worships.

Holder is a sad joke who makes John Ashcroft look not so bad after all.

What a disappearance of any semblance of responsibility to the US this Administration has presented, and daily presents.

Drones and secretly killing anybody who they don't like, no laws governing what they do, following Wall Street's every whim and fancy as if Wall Street were God, and otherwise making a disaster of whatever they touch or even mention.
+2 # Depressionborn 2013-03-15 09:18
“They have the guns and therefore we are for peace and for reformation through the ballot. When we have the guns then it will be through the bullet.”
Vladimir Ilyich Lenin
+12 # fredboy 2013-03-14 11:51
You are correct. We have crossed the most dangerous line, erasing the power of law to protect us from its abuse.
+4 # cordleycoit 2013-03-14 13:58
The real question is the question of when Obama became a tyrant with the blood of inncents to wash off his hands.
+4 # futhark 2013-03-14 20:37
I bailed on supporting Senator Obama for the presidency when he voted for the Foreign Intelligence Security Act (FISA) in 2008. By giving the telecom giants unrestricted access to our private communications in direct contradiction to law and precedent, he showed that he was the creature of the military-indust rial complex and the surveillance state apparatus. His subsequent behavior has shown this assessment to be totally correct, in my view.
+1 # Anarchist 23 2013-03-15 20:11
cordleycoit: I believe it was shortly after his first inauguration when he attacked Yemen with a drone. I am seriously thinking of no longer voting. It has just gotten worse since I have done so!
+5 # futhark 2013-03-14 20:33
It is widely recognized that the Nazis saw the Spanish Civil War of the 1930s as a testing ground for the tactics of blitzkreig and terror bombing of civilian populations in Warsaw, Rotterdam, and Coventry. Pablo Picasso captured the surprise and terror the bombing of Guernica in his highly regarded painting.

Do the drone attacks by the American military on targets in the Middle East presage this kind of attack within the United States? I'm very concerned that they do. The people in charge seem to be mesmerized by the what the technology can do without much, if any, regard for its logical consequences.
0 # stevcook 2013-03-15 18:46
So now the people think they see the problem but you are nowhere near the mark. Next he will run again and win again with no-one to stop him good nite and good luck to all the ships at sea.
+1 # AUCHMANNOCH 2013-03-15 19:00
A few months ago I was sniggering at what I considered American gun nuts demanding to hang on to automatic weapons to protect themselves from the American government. Now I'm not so certain they are nuts!

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