The Constitutionality of the Obama Kill Memo

(In case you don't know about this yet.)

I believe that the Obama Kill Memo is arguably the most destructive if not openly tyrannical piece of legal writing to come out of our government since the commencement of the Great War on Terror. Given that encompasses the various iterations of the execrably-named "USA Patriot Act", all of the various Executive Orders creating the military commissions in Gitmo, the establishment of the American Gulag, "extraordinary renditions" (AKA torture by proxy) and the "intellectual" case for torture, that is saying something.

Our Constitution is a remarkable document that has, at its core, one root premise: Government is not to be trusted. The Founding Fathers were not stupid men. Many of them were among the best minds in the Colonies. They were well versed in thousands of years of Western history. There is one thing that they knew and understood: All governments, over time, tend to drift towards periods of oppression and tyrannical rule of the governed. Governments that do that lose the trust of the governed. When that happens, then the country/empire becomes susceptible to both revolt and outside invasion, for people who are alienated from their rules may well welcome an invader to try to set things right.

The Bill of Rights attempts, in part, to guard against this tendency of government. The Fourth Amendment was written to protect the people against arbitrary searches and seizures. The Fifth Amendment requires that there be due process before depriving a citizen of life, liberty or property and that in the event that property is taken by the government for its use, that just compensation be paid. The Sixth Amendment requires that the government prove its case in a court of law and that the accused have the right to an attorney and to compel testimony in his favor. The Eighth Amendment outlaws torture. The Fourteenth Amendment provides that the states are bound by the Bill of Rights, that the Federal government can't use the states as sock-puppets to do what the Feds can't.

Several means of enforcement were built in. Acts of Congress and the Executive are reviewable by the courts- Article III. Congress is chosen by the people- Article I and the 17th Amendment. The President is elected (by a complex method)- Article II, and the 12th Amendment. If the government steps out of line, the people have the right to speak out and to petition the government to mend its ways- the 1st Amendment. And if the government refuses to listen, the people have the means to compel them- the 2nd Amendment.

It has been well understood for thousands of years that there is no requirement for due process on a battlefield- a government doesn't have to have a warrant or offer a trial to the enemy. It has also been understood for almost as long that the killing of the defenseless is a heinous act. Killing people away from the field of combat has been considered to be against the laws of war for a very long time before there was a Geneva Convention.

Now, however, our government has declared that the battlefield in this war encompasses the entire globe. Because the enemy doesn't wear uniforms, the government considers that anybody may be the enemy. The government claims the unreviewable right to decide who is a combatant and who isn't. The government claims the right to imprison people, forever, without due process, because it says that they are the enemy. The government now claims the right to kill anybody, anywhere, at any time, if some nameless functionary deems them to be an "imminent threat". That decision is not reviewable.

We have progressed from the Star Chamber trials first proposed by the administration of President Bush to summary executions being carried out by the administration of President Obama. All along, both administrations have been saying "trust us, we know what we are doing." That is both antithetical to the Constitution's spirit and, frankly, it flies in the face of known facts. You do not have to do much research to find that there was no shortage of men who were taken into custody for life as "known terrorists", "the worst of the worst". That is what they told us. Only when the government was forced, finally, to prove its case, it came to light that a lot of those so-called terrorists were nothing of the sort.  Just because they were accused of being terrorists didn't mean that they were terrorists.  If government accusations were proof of guilt, we wouldn't have a Sixth Amendment to require that the government prove its case in open court.

But at least some of those guys had some due process, however many years it took to force the government to provide it. There has been no review of the men, women, and yes, children who have been killed by our government on the so-called findings of some anonymous official. When they even speak of it, the same rationales that the Bush Administration used to justify locking up innocent men are trotted out to justify the killing of people halfway around the globe: "Known terrorist." "The worst of the worst." The people doing the killing, now, ask us to trust them in the same way that the people doing the imprisoning and torturing asked us to trust them. Our trust was misplaced, then. In all likelihood, it is now.

I call it for what it is: Government-sanctioned murder. It is not only murder, it is murder by remote control. How big of a step is it to go from "this man is al Qaeda" to "this man is associated with al Qaeda" to "this man sympathises with al Qaeda"? Remember this: You will not have to work hard to find people who called those who opposed the Patriot Act as "terrorist symps". Which means that we are approaching the point, however slowly, when the government will claim the right to kill those who disagree with it.

While I have, in this post and in the previous one, blasted President Obama for this, I have no illusions that things would be any different under a President McCain, Romney, or, for that matter, Hillary Clinton.

The government is asking us to trust them. We should keep in mind the principles of our Constitution and reply: "Hell, no."

To do otherwise is to continue down the road to the point that the Constitution becomes as meaningless a document as is the Chinese Constitution.