Over the weekend, Sen. Susan Collins released a five-minute video in which she sounded as though she were possessed by the angriest, most unhinged version of Dick Cheney.  Collins recklessly accused the Obama administration of putting us all in serious danger by failing to wage War against the Terrorists.  Most of what she said was just standard right-wing boilerplate, but there was one claim in particular that deserves serious attention, as it has become one of the most pervasive myths in our political discourse:  namely, that the U.S. Constitution protects only American citizens, and not any dreaded foreigners.  Focusing on the DOJ's decision to charge the alleged attempted Christmas Day bomber with crimes, Mirandize him and provide him with counsel, Collins railed:  "Once afforded the protection our Constitution guarantees American citizens, this foreign terrorist 'lawyered up' and stopped talking" (h/t).  This notion that the protections of the Bill of Rights specifically and the Constitution generally apply only to the Government's treatment of American citizens is blatantly, undeniably false -- for multiple reasons -- yet this myth is growing, as a result of being centrally featured in "War on Terror" propaganda.

First, the U.S. Supreme Court, in 2008, issued a highly publicized opinion, in Boumediene v. Bush, which, by itself, makes clear how false is the claim that the Constitution applies only to Americans.  The Boumediene Court held that it was unconstitutional for the Military Commissions Act to deny habeas corpus rights to Guantanamo detainees, none of whom was an American citizen (indeed, the detainees were all foreign nationals outside of the U.S.).  If the Constitution applied only to U.S. citizens, that decision would obviously be impossible.  What's more, although the decision was 5-4, none of the 9 Justices -- and, indeed, not even the Bush administration -- argued that the Constitution applies only to American citizens.  That is such an inane, false, discredited proposition that no responsible person would ever make that claim.

What divided the Boumediene Court was the question of whether foreigners held by the U.S. military outside of the U.S. (as opposed to inside the U.S.) enjoy Constitutional protections.  They debated how Guantanamo should be viewed in that regard (as foreign soil or something else).  But not even the 4 dissenting judges believed -- as Susan Collins and other claim -- that Constitutional rights only extend to Americans.  To the contrary, Justice Scalia, in his scathing dissent, approvingly quoted Justice Jackson in conceding that foreigners detained inside the U.S. are protected by the Constitution (emphasis added):

Justice Jackson then elaborated on the historical scope of the writ:

"The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society . . . .

"But, in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act." Id., at 770-771.

That's from Scalia, and all the dissenting judges joined in that opinion.  It is indisputable, well-settled Constitutional law that the Constitution restricts the actions of the Government with respect to both American citizens and foreigners.  It's not even within the realm of mainstream legal debate to deny that.  Abdulmutallab was detained inside the U.S.  Not even the Bush DOJ -- not even Antonin Scalia -- believe that the Constitution only applies to American citizens.  Indeed, the whole reason why Guantanamo was created was that Bush officials wanted to claim that the Constitution is inapplicable to foreigners held outside the U.S. -- not even the Bush administration would claim that the Constitution is inapplicable to foreigners generally.

The principle that the Constitution applies not only to Americans, but also to foreigners, was hardly invented by the Court in 2008.  To the contrary, the Supreme Court -- all the way back in 1886 -- explicitly held this to be the case, when, in Yick Wo v. Hopkins, it overturned the criminal conviction of a Chinese citizen living in California on the ground that the law in question violated his Fourteenth Amendment rights to due process and equal protection.  In so doing, the Court explicitly rejected what Susan Collins and many others claim about the Constitution.  Just read what the Court said back then, as it should settle this matter forever (emphasis added):

The rights of the petitioners, as affected by the proceedings of which they complain, are not less because they are aliens and subjects of the emperor of China. . . . The fourteenth amendment to the constitution is not confined to the protection of citizens. It says:  "Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."  These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws. . . . The questions we have to consider and decide in these cases, therefore, are to be treated as involving the rights of every citizen of the United States equally with those of the strangers and aliens who now invoke the jurisdiction of the court.

Could that possibly be any clearer?  Over 100 years ago, the Supreme Court explicitly said that the rights of the Constitution extend to citizens and foreigners alike.  The Court has repeatedly applied that principle over and over.  Only extreme ignorance or a true desire to deceive would lead someone like Susan Collins to claim that such rights are "protection[s] our Constitution guarantees American citizens."

Second, basic common sense by itself should prevent people like Susan Collins from claiming the Constitution applies only to American citizens.  There are millions of foreign nationals inside the U.S. at all times -- not only illegally but also legally:   as tourists, students, workers, Green Card holders, etc.  Is there anyone who really believes that the Bill of Rights doesn't apply to them?  If a foreign national is arrested and accused by the U.S. Government of committing a crime, does anyone believe they can be sentenced to prison without a jury trial, denied the right to face their accusers, have their property seized without due process, be subjected to cruel and unusual punishment, and be denied access to counsel?  Anyone who claims that the Constitution only protects American citizens, but not foreigners, would necessarily have to claim that the U.S. Government could do all of that to foreign nationals.  Does anyone believe that?  Would it be Constitutionally permissible to own foreigners as slaves on the ground that the protections of the Constitution -- including the Thirteenth Amendment -- apply only to Americans, not foreigners?

Third, to see how false this notion is that the Constitution only applies to U.S. citizens, one need do nothing more than read the Bill of Rights.  It says nothing about "citizens."  To the contrary, many of the provisions are simply restrictions on what the Government is permitted to do ("Congress shall make no law respecting an establishment of religion . . . or abridging the freedom of speech"; "No soldier shall, in time of peace be quartered in any house, without the consent of the owner").  And where rights are expressly vested, they are pointedly not vested in "citizens," but rather in "persons" or "the accused" ("No person shall . . . . be deprived of life, liberty, or property, without due process of law"; "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 . . . . and to have the assistance of counsel for his defense").

The only way to argue that these rights apply only to Americans is to argue that only Americans, but not foreigners, are "persons."  Once one makes that claim, then one is in Dred Scott territory.  If foreigners are not "persons," then what are they:  sub-persons?  Non-persons?  Untermenschen?  

There are, of course, certain Constitutional rights that are clearly reserved only for citizens -- such as the right to vote or to hold elective office -- but when that is the case, the Constitution explicitly states that to be so ("The right of citizens of the United States to vote shall not be denied or abridged by the United States . . . .").  Indeed, the Fourteenth Amendment, in the very same clause, demonstrates the distinction between "citizens" (which only includes "Americans") and "persons" (which includes everyone), and proves that the former is merely a subset of the latter:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Article II, Section 1 -- in defining eligibility to be President -- makes the same distinction:

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President;

"Persons" and "citizens" have entirely different meanings in the Constitution.  There are a handful of instances in which the Constitution applies only to American citizens.  When that is the case, the Constitution explicitly uses the word "citizens."  In all other instances, it simply restricts what the Government is permitted to do generally or uses the much broader term "persons" to describe who holds the rights it guarantees.  That's the obvious point the Yick Wo Court made in 1886 in holding "these provisions are universal in their application, to all persons within the territorial jurisdiction," and it ought to prevent the most minimally honest individuals among us from claiming otherwise, as Susan Collins just did.

It's certainly true that, even after Boumediene, there is a viable debate over whether so-called alien "enemy combatants" held outside of the U.S. are entitled to the full panoply of Constitutional protections (of course, that debate ignores the unanswerable question:  how do you know someone is an "enemy combatant" -- let alone a "Terrorist" -- if they don't first have a trial?).  There are also instances (such as deportation hearings) where the due process rights to which foreign nationals are entitled are less stringent than standard rights guaranteed in criminal trials (becuase foreign nationals have no Constitutional right to be admitted entrance to the U.S.). 

But this right-wing demagoguery (coming from both Republicans and some Democrats) has nothing to do with those debates.  For one thing, the accused Christmas Day bomber was captured and is being held inside the U.S. (right-wing fear-mongerers have long argued that we should not bring GITMO detainees to the U.S. because, once inside the U.S., they would then enjoy full Constitutional protections).  But more important, the standard rhetorical formulation being used -- "extending rights to foreign Terrorists which the Constitution reserves for U.S. citizens" -- suggests that Constitutional rights are for American citizens only.  That is blatantly false, and anyone making that claim -- as Susan Collins and so many others have -- is either extremely ignorant or extremely dishonest.

As I noted several days ago, it is not only Republicans -- but Democratic and media establishment figures as well -- who clearly crave the preservation of the Bush/Cheney approach to Terrorism and civil liberties.  When Bush's popularity collapsed to historic lows, political and media elites pretended for awhile to object to his administration's fear-based and radical policies as extremist and an assault on "our values."  But that was all just such a transparent pretense.  In those few instances where Obama has rejected the Bush/Cheney template, the outrage and hysteria from Democratic and media voices is pervasive, and is growing louder.

Just look at these illustrative incidents.  Democratic Gov. Ed Rendell went on Fred Thompson's radio show yesterday to demand that Khalid Sheikh Mohammed be put before a military commission -- at Guantanamo.  Over the weekend, Time's Joe Klein lambasted the Obama DOJ, and embraced Bush's former CIA and NSA Chief Michael Hayden, by objecting to the criminal charges and Constitutional rights afforded the accused Christmas Day bomber, with Klein decreeing:  "the bomber is an enemy combatant.  He doesn't have Miranda rights."  MSNBC personalities Chuck Todd and Savannah Guthrie chatted yesterday with their boss, MSNBC Washington Bureau Chief Mark Whitaker, all agreeing that the decision to grant civilian trials for "Terrorists" is "a pure, self-inflicted wound."  When Najibullah Zazi was arrested for allegedly plotting a serious Terrorist attack, The New Republic's Michael Crowley said he was so frightened by this that he was open to torturing Zazi.  Democratic Senators are threatening to join the GOP in cutting off funds for civilian trials.  Democratic members of Congress joined with the GOP to prevent even modest reforms of the Patriot Act and other surveillance abuses.  City officials compete with one another over who can be the most frightened and terrorized by Terrorists.

And The Washington Post's Richard Cohen -- who was so frightened by Terrorism that he wrote multiple screeds screeching that we must have vengeance on Saddam -- devotes his entire column today to criticizing Obama for putting us In Grave Danger by rejecting a handful of Bush/Cheney Terrorism policies (headlined:  "Obama administration is tone-deaf to concerns about terrorism"):

There is almost nothing the Obama administration does regarding terrorism that makes me feel safer.  Whether it is guaranteeing captured terrorists that they will not be waterboarded, reciting terrorists their rights, or the legally meandering and confusing rule that some terrorists will be tried in military tribunals and some in civilian courts, what is missing is a firm recognition that what comes first is not the message sent to America's critics but the message sent to Americans themselves. When, oh when, will this administration wake up? . . .

No doubt George Bush soiled America's image abroad with what looked liked vigilante justice and Dick Cheney's hearty endorsement of ugly interrogation measures. But more is at stake here than America's image abroad -- namely the security and peace of mind of Americans in America. . . . The Obama administration, on the other hand, seems to have bent over backward to prove to the world it is not the Bush administration and will, almost no matter what, ensure that everyone gets the benefit of American civil liberties. But the paramount civil liberty is a sense of security and this, sad to say, has eroded under Barack Obama.

Leave aside that Bush -- like Obama -- also tried some accused Terrorists in civilian trials and some before military commissions.  Leave aside that the second-term Bush -- like Obama -- withdrew authorization for waterboarding.  Leave aside the factually inaccurate claim that Obama is "ensuring that everyone gets the benefit of American civil liberties" when he is, in fact, detaining many people without any charges at all and putting many others before military commissions.

Beyond all those factual errors, look at what Cohen is saying:  Bush "soiled America's image," but what he did was right, just and necessary, and Obama should follow that -- which is essentially what many Democratic Party and media elites are saying as well.  Seriously:  if you were a Bush follower, wouldn't you feel as though you were owed a major apology for all the accusations and the fuss that came from Democrats and media figures, accusing you of supporting radical and Constitution-shredding policies when, it turns out, they actually crave those policies in order to feel safe?  Doesn't all of this bolster the Republican claim that those attacks on the Bush administration for civil liberties abuses were not due to genuine conviction, but rather for partisan gain (in the case of Democratic officials) and cheap, preening, wet-finger-in-the-air moralizing (in the case of media stars)?  

Consider the example of military commissions.  When the Bush administration unveiled those, the reaction from Democrats, progressives and media outlets was overwhelmingly and intensely negative, on the ground that military commissions (no matter what rules they followed) were appropriate only for "battlefield justice," when there was no other alternative.  The consensus was that our normal system of justice -- developed over two hundred years -- was the only just and proper venue to try accused Terrorists, had been proven effective, and beyond that, the perception that we were inventing new and inferior tribunals of justice for Muslims would fuel Terrorism and make us more unsafe.  What happened to all of that?  Was there a single Democrat or progressive defending military commissions when Bush and Cheney unveiled them as their preferred method for trying Terrorists?  Now, suddenly, Terrorists belong in military commissions -- at GITMO?  So the defining creations of the Bush/Cheney/Rumsfeld approach are now the centerpieces of the Democratic and media consensus. 

All of these attacks on the Obama administration really leave one wondering:  what is it exactly that Bush and Cheney did wrong?  Was it just the waterboarding (the official authorization for which was withdrawn several years before Bush left office and which, in any event, people like Richard Cohen and Michael Crowley still crave)?  Everything else other than the "enhanced interrogation techniques" was good?   What happened to all the profound talk about how they ruined our image in the world and violated our "core principles" and how we can simultaneously Stay Safe and adhere to our values -- which happened to be a central theme of Obama's successful presidential campaign?  How can Democrats and media stars claim to find Bush and Cheney so distasteful as they simultaneously attack Obama for reversing their defining policies in a few isolated instances?  In the areas of civil liberties and Terrorism, what exactly did Bush and Cheney do wrong?

Last week, I wrote about a revelation buried in a Washington Post article by Dana Priest which described how the Obama administration has adopted the Bush policy of targeting selected American citizens for assassination if they are deemed (by the Executive Branch) to be Terrorists.  As The Washington Times' Eli Lake reports, Adm. Dennis Blair was asked about this program at a Congressional hearing yesterday and he acknowledged its existence:

The U.S. intelligence community policy on killing American citizens who have joined al Qaeda requires first obtaining high-level government approval, a senior official disclosed to Congress on Wednesday.

Director of National Intelligence Dennis C. Blair said in each case a decision to use lethal force against a U.S. citizen must get special permission. . . .

He also said there are criteria that must be met to authorize the killing of a U.S. citizen that include "whether that American is involved in a group that is trying to attack us, whether that American is a threat to other Americans. Those are the factors involved."

Although Blair emphasized that it requires "special permission" before an American citizen can be placed on the assassination list, consider from whom that "permission" is obtained:  the Preisdent, or someone else under his authority within the Executive Branch.  There are no outside checks or limits at all on how these "factors" are weighed.  In last week's post, I wrote about all the reasons why it's so dangerous -- as well as both legally and Consitutionally dubious -- to allow the President to kill American citizens not on an active battlefield during combat, but while they are sleeping, sitting with their families in their home, walking on the street, etc.  That's basically giving the President the power to impose death sentences on his own citizens without any charges or trial.  Who could possibly support that?

But even if you're someone who does want the President to have the power to order American citizens killed without a trial by decreeing that they are Terrorists (and it's worth remembering that if you advocate that power, it's going to be vested in all Presidents, not just the ones who are as Nice, Good, Kind-Hearted and Trustworthy as Barack Obama), shouldn't there at least be some judicial approval required?  Do we really want the President to be able to make this decision unilaterally and without outside checks?  Remember when many Democrats were horrified (or at least when they purported to be) at the idea that Bush was merely eavesdropping on American citizens without judicial approval?  Shouldn't we be at least as concerned about the President's being able to assassinate Americans without judicial oversight?  That seems much more Draconian to me. 

It would be perverse in the extreme, but wouldn't it be preferable to at least require the President to demonstrate to a court that probable cause exists to warrant the assassination of an American citizen before the President should be allowed to order it?  That would basically mean that courts would issue "assassination warrants" or "murder warrants" -- a repugnant idea given that they're tantamount to imposing the death sentence without a trial -- but isn't that minimal safeguard preferable to allowing the President unchecked authority to do it on his own, the very power he has now claimed for himself?  And if the Fifth Amendment's explicit guarantee -- that one shall not be deprived of life without due process -- does not prohibit the U.S. Government from assassinating you without any process, what exactly does it prohibit?  Noting Scott Brown's campaign to deny accused Terrorists access to lawyers and a real trial, Adam Serwer wrote:  

This is the new normal for Republicans: You can be denied rights not through due process of law but merely based on the nature of the crime you are suspected of committing.

That's absolutely true, but that also perfectly describes this assassination program -- as well as a whole host of other now-Democratic policies, from indefinite detention to denial of civilian trials.

* * * * *

The severe dangers of vesting assassination powers in the President are so glaring that even GOP Rep. Pete Hoekstra is able to see them (at least he is now that there's a Democratic President).  At yesterday's hearing, Hoekstra asked Adm. Blair about the threat that the President might order Americans killed due to their Constitutionally protected political speech rather than because they were actually engaged in Terrorism.  This concern is not an abstract one.  The current controversy has been triggered by the Obama administration's attempt to kill U.S. citizen Anwar al-Awlaki in Yemen.  But al-Awalki has not been accused (let alone convicted) of trying to attack Americans.  Instead, he's accused of being a so-called "radical cleric" who supports Al Qeada and now provides "encouragement" to others to engage in attacks --  a charge al-Awalki's family vehemently denies (al-Awalki himself is in hiding due to fear that his own Government will assassinate him).

The question of where First Amendment-protected radical advocacy ends and criminality begins is exactly the sort of question with which courts have long grappled.  In the 1969 case of Brandenburg v. Ohio, the Supreme Court unanimously reversed a criminal conviction of a Ku Klux Klan leader who -- surrounded by hooded indivduals holding weapons -- gave a speech threatening "revengeance" against any government official who "continues to suppress the white, Caucasian race."  The Court held that the First Amendment protects advocacy of violence and revolution, and that the State is barred from punishing citizens for the expression of such views.  The Brandenberg Court pointed to a long history of precedent protecting the First Amendment rights of Communists to call for revolution -- even violent revolution -- inside the U.S., and explained that the Government can punish someone for violent actions but not for speech that merely advocates or justifies violence (emphasis added):

As we [395 U.S. 444, 448] said in Noto v. United States, 367 U.S. 290, 297 -298 (1961), "the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action." See also Herndon v. Lowry, 301 U.S. 242, 259 -261 (1937); Bond v. Floyd, 385 U.S. 116, 134 (1966). A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.

From all appearances, al-Awalki seems to believe that violence by Muslims against the U.S. is justified in retaliation for the violence the U.S. has long brought (and continues to bring) to the Muslim world.  But as an American citizen, he has the absolute Constitutional right to express those views and not be punished for them (let alone killed) no matter where he is in the world; it's far from clear that he has transgressed the advocacy line into violent action.  Obviously, there are those who justify such assassination powers on the ground that radical Islam is a grave threat, but that is what is always said to justify Constitutional abrigements (it was obviously said of Communists and war critics during World War I).  Indeed, in light of episodes like the Timothy McVeigh bombing and the various attacks on abortion clinics, shouldn't those who want the President to be able to assassinate American "radical clerics" without a trial also support the President's targeting of Americans who advocate extremism or violence from a far right or extremist Christian perspective?  What's the principle that allows one but not the other?

In response to these concerns, Admiral Blair said yesterday:  "We don't target people for free speech. We target them for taking action that threatens Americans or has resulted in it."  But the U.S. Government -- like all governments -- has a long history of viewing "free speech" as a violent threat or even Terrorism.  That's why this is exactly the type of question that is typically -- and is intended to be -- resolved by courts, according the citizen due process, not by the President acting alone.  That's especially true if the death penalty is to be imposed.  

But Obama's presidential assassination policy completely short-circuits that process.  It literally makes Barack Obama the judge, jury and executioner even of American citizens. Beyond its specific application, it is yet another step -- a rather major one -- towards abandoning our basic system of checks and balances in the name of Terrorism and War.

* * * * * 

That last point is the most important one here.  Atrios wrote the other day that a central prong in the Washington consensus is that "all it takes to nullify the constitution is to call someone a terraist."  That's absolutely true, but a close corollary is that merely uttering the word "war" justifies the same thing.  That's particularly dangerous given that, by all accounts, this is a so-called "war" that will not end for a generation, if ever.  To justify the abridgment or even suspension of the Constitution on the ground of "war" is to advocate serious alterations to our Constitutional framework that are more or less permanent.  Several points about that "war" excuse: 

First, there's no "war exception" in the Constitution.  Even with real wars -- i.e., those involving combat between opposing armies -- the Constitution actually continues to constrain what government officials can do, most stringently as it concerns U.S. citizens.  Second, strictly speaking, we're not really "at war," as Congress has merely authorized the use of military force but has not formally or Constitutionally declared war.  Even the Bush administration conceded that this is a vital difference when it comes to legal rights.  In 2006, the Bush DOJ insisted that the wartime provision of FISA -- allowing the Government to eavesdrop for up to 15 days without a warrant -- didn't apply because Congress only enacted an AUMF, not a declaration of war (click image to enlarge):

The Bush DOJ went on to explain that declarations of war trigger a whole variety of legal effects (such as terminating diplomatic relations and abrogating or suspending treaty obligations) which AUMFs do not trigger (see p. 27).  To authorize military force is not to declare war.  Finally, the U.S. is fighting numerous undeclared wars, including ones involving military action:  given that our "War on Drugs" continues to rage, should the U.S. Government be able to target accused "drug kingpins" for assassination without a trial, the way we attempted to do in Afghanistan?  After all, Terrorists blow up airplanes but Drug Kingpins kill our kids!!!  The mindset that cheers for unlimited Presidential powers in the name of "war" invariably leads to exactly these sorts of expansions.

Far beyond the specific injustices of assassinating Americans without trials, the real significance, the real danger, is that we continue to be frightened into radically altering our system of government.  In Slate yesterday, Dahlia Lithwick encapsulated this problem perfectly; her whole article should be read, but this excerpt is superb:

America has slid back again into its own special brand of terrorism-derangement syndrome. Each time this condition recurs, it presents with more acute and puzzling symptoms. . . .

Moreover, each time Republicans go to their terrorism crazy-place, they go just a little bit farther than they did the last time, so that things that made us feel safe last year make us feel vulnerable today. . . . In short, what was once tough on terror is now soft on terror. And each time the Republicans move their own crazy-place goal posts, the Obama administration moves right along with them. . . .

We're terrified when a terror attack happens, and we're also terrified when it's thwarted. We're terrified when we give terrorists trials, and we're terrified when we warehouse them at Guantanamo without trials. If a terrorist cooperates without being tortured we complain about how much more he would have cooperated if he hadn't been read his rights. No matter how tough we've been on terror, we will never feel safe enough to ask for fewer safeguards. . . .

But here's the paradox: It's not a terrorist's time bomb that's ticking. It's us. Since 9/11, we have become ever more willing to suspend basic protections and more contemptuous of American traditions and institutions. The failed Christmas bombing and its political aftermath have revealed that the terrorists have changed very little in the eight-plus years since the World Trade Center fell. What's changing -- what's slowly ticking its way down to zero -- is our own certainty that we can never be safe enough and our own confidence in the rule of law.

This descent has certainly not reversed itself -- it has not really even slowed -- with the election of a President who repeatedly vowed to reject this mentality.  Just consider what Al Gore said in his truly excellent 2006 speech decrying the "Constitutional crisis" under the Bush presdiency:

Can it be true that any president really has such powers under our Constitution?

If the answer is yes, then under the theory by which these acts are committed, are there any acts that can on their face be prohibited?

If the president has the inherent authority to eavesdrop on American citizens without a warrant, imprison American citizens on his own declaration, kidnap and torture, then what can't he do?

Here we are, almost four years later with a new party in power, and the President's top intelligence official announces -- without any real controversy -- that the President claims the power to assassinate American citizens with no charges, no trials, no judicial oversight of any kind.  The claimed power isn't "inherent" -- it's based on alleged Congressional approval -- but it's safeguard-free and due-process-free just the same.  As Gore asked of less severe policies in 2006, if the President can do that, "then what can't he do?"  As long as we stay petrified of the Terrorists and wholly submissive whenever the word "war" is uttered, the answer will continue to be:  "nothing."  We'll have Presidents now and then who are marginally more restrained than others -- as the current President is marginally more restrained than the prior one -- but what Lithwick calls our "willingness to suspend basic protections and become more contemptuous of American traditions and institutions" will continue unabated.

If I had the power to have one statement of fact be universally recognized in our political discussions, it would be this one:

The fact that the Government labels Person X a "Terrorist" is not proof that Person X is, in fact, a Terrorist.

That proposition should be intrinsically understood by any American who completed sixth grade civics and was thus taught that a central prong of our political system is that government officials often abuse their power and/or err and therefore must prove accusations to be true (with tested evidence) before they're assumed to be true and the person punished accordingly.  In particular, the fact that the U.S. Government, over and over, has falsely accused numerous people of being Terrorists -- only for it to turn out that they did nothing wrong -- by itself should compel a recognition of this truth.  But it doesn't.  

All throughout the Bush years, no matter what one objected to -- illegal eavesdropping, torture, rendition, indefinite detention, denial of civilian trials -- the response from Bush followers was the same:  "But these are Terrorists, and Terrorists have no rights, so who cares what is done to them?"  What they actually meant was:  "the Government has claimed they are Terrorists," but in their minds, that was the same thing as:  "they are Terrorists."  They recognized no distinction between "a government accusation" and "unchallengeable truth"; in the authoritarian's mind, by definition, those are synonymous.  The whole point of the Bush-era controversies was that -- away from an actual battlefield and where the Constitution applies (on U.S. soil and/or towards American citizens wherever they are) -- the Government should have to demonstrate someone's guilt before it's assumed (e.g., they should have to show probable cause to a court and obtain warrants before eavesdropping; they should have to offer evidence that a person engaged in Terrorism before locking them in a cage, etc.).  But to someone who equates unproven government accusations with proof, those processes are entirely unnecessary.  Even in the absence of those processes, they already know that these persons are Terrorists.  How do they know that?  Because the Government said so.  Even when it comes to their fellow citizens, that's all the "proof" that is needed.

That authoritarian mentality is stronger than ever now.  Why?  Because unlike during the Bush years, when it was primarily Republicans willing to blindly trust Government accusations, many Democrats are now willing to do so as well.  Just look at the reaction to the Government's recent attempts to assassinate the U.S.-born American citizen and Islamic cleric Anwar al-Awlaki.  Up until last November, virtually no Americans had ever even heard of al-Awlaki.  But in the past few months, beginning with the Fort Hood shootings, government officials have repeatedly claimed that he's a Terrorist:  usually anonymously, with virtually no evidence, and in the face of al-Awlaki's vehement denials but without any opportunity for him to defend himself (because he's in hiding out of fear of being killed by his own Government).  The Government can literally just flash someone's face on the TV screen with the word Terrorist over it (as was done with al-Awlaki), and provided the face is nefarious and Muslim-looking enough (basically the same thing), nothing else need be offered.

That's enough for many people -- including many Democrats -- to march forward overnight and mindlessly proclaim that al-Awlaki is "a declared enemy of the United States working to kill Americans" (if you can stomach it, read some of these comments -- from Obama defenders at a liberal blog -- with several sounding exactly like Dick Cheney, screeching:  "Of course al-Awlaki should be killed without charges; he's a Terrorist who is trying to kill Americans!!!").  Even now, beyond government assertions about his associations, the public knows virtually nothing about al-Awlaki other than the fact that he's a Muslim cleric with a Muslim name dressed in Muslim garb, sitting in a Bad Arab Country expressing anger towards the actions of the U.S. and Israel.  But no matter.  That's more than enough.  They're willing not only to mindlessly embrace the Government's unproven accusation that their fellow citizen is a TERRORIST ("a declared enemy of the United States working to kill Americans"), but even beyond that, to cheer for his due-process-free execution like drunken fans at a football game.  And the same people declare:  no civilian trials are necessary for Terrorists (meaning:  people accused by the Government of being Terrorists).  Even more amazingly, the identities of the other Americans on the hit list aren't even known, but that's OK:  they're Terrorists, because the Government said so.

A very long time ago, I would be baffled when I'd read about things like the Salem witch hunts.  How could so many people be collectively worked up into that level of irrational frenzy, where they cheered for people's torturous death as "witches" without any real due process or meaningful evidence?  But all one has to do is look at our current Terrorism debates and it's easy to see how things like that happen.  It's just pure mob mentality:  an authority figure appears and affixes a demonizing Other label to someone's forehead, and the adoring crowd -- frothing-at-the-mouth and feeding on each other's hatred, fears and desire to be lead -- demands "justice."  I imagine that if one could travel back in time to the Salem era in order to speak with some of those gathered outside an accused witch's home, screaming for her to be burned, the conversation would go something like this:

Mob Participant:  Hang the Witch!!!  Kill her!!!

Far Left Civil Liberties Extremist-Purist ("FLCLE-P"):  How do you know she's a witch?

Mob Participant:  Didn't you just hear the government official say so?

FLCLE-P:  But don't you want to see real evidence before you assume that's true and call for her death?

Mob Participant:  You just heard the evidence!  The magistrate said she's a witch!

FLCLE-P:  But shouldn't there be a real trial first, with tangible evidence and due process protections, to see if the accusation is actually true?

Mob Participant:  A "real" trial?  She's a witch!  She's trying to curse us and kill us all.  She got more than what she deserved.  Witches don't have rights!!!

Return to Question 1.

That's essentially how I hear our debates over Terrorism, and how I've heard them for quite some time.  And it's how I hear them more loudly now than ever before.  And with those deeply confused premises now locked into place on a bipartisan basis ("no trials are needed to determine if someone is a Terrorist because Terrorists don't have rights"), imagine how much louder that will get if there is another successful terrorist attack in the U.S.  But in fairness to the 17th Century Puritans, at least the Salem witches received pretenses of due process and even trials (albeit with coerced confessions and speculative hearsay).  Even when it comes to our fellow citizens, we don't even bother with those.  For us, the mere accusation by our leaders is sufficient:  Kill that American Terrorist with a drone!

UPDATE:  A long-time, regular commenter here, Jestaplero, is a state prosecutor in New York, and he explains -- in this comment -- how the mentality discussed here can and does easily expand beyond the realm of Terrorism.

Interestingly, even Allahpundit at Michelle Malkin's Hot Air recognizes the serious dangers in allowing the Government to decree even U.S. citizens to be "Terrorists" and then treat them accordingly, with no due process.  But note how his right-wing commenters are almost exclusively of the "just-kill-him" school of thought, and how identical they sound to that minority of Daily Kos commenters I linked above who, in their blind loyalty to Obama, also insist that there's nothing wrong with simply snuffing out their lives of their fellow citizens who are "Terrorists" (meaning:  anyone their Leader claims is a Terrorist) with no due process or oversight whatsoever.  Ultimately, authoritarians are authoritarians, regardless of whether they situate themselves on the left or right.

NEW YORK - Civil liberties advocates and legal authorities struck back Friday at what they describe as the "deliberate targeted killing of U.S. citizens far away from any active hostilities, as long as the executive branch determines unilaterally that they meet a secret definition of who the enemy is."

In an admission that took the intelligence community and its critics by surprise, Director of National Intelligence Dennis Blair acknowledged in a congressional hearing Wednesday that the U.S. may, with executive approval, deliberately target and kill U.S. citizens who are suspected of being involved in terrorism.

The American Civil Liberties Union is among those expressing serious concern about the lack of public information about the policy and the potential for abuse of unchecked executive power.

Attorney George Brent Mickum, who has defended a number of Guantanamo Bay detainees, told IPS, "I guess my sense is that it's just more fear mongering. They kill somebody and don't need to offer any justification."

"We have killed thousands of innocent civilians while attempting to target alleged operatives. And let us not forget how frequently our intelligence has been wrong about alleged operatives," Mickum noted.

He added, "My clients Bisher al Rawi, Jamil el-Banna, Martin Mubanga, abu Zubaydah, and Shaker Aamer all are alleged to have been operatives based on intel. In every case that intel was incorrect. I don't have any expectation that our intel with respect to alleged American operatives is likely to be any better."

Another constitutional scholar, Professor Francis A. Boyle of the University of Illinois Law School, told IPS that "this extrajudicial execution of human beings" violates both international human rights law and the fifth amendment of the U.S. constitution.

"The U.S. government has now established a 'death list' for U.S. citizens abroad akin to those established by Latin American dictatorships during their so-called dirty wars," he said.

The human rights advocacy community was equally forceful in its pushback. Daphne Eviatar, an attorney with Human Rights First, told IPS, "The short answer is that combatants can be targeted and civilians cannot under international law. Their citizenship isn't relevant. But just being a 'suspected terrorist' doesn't necessarily mean they're a combatant."

She added, "The key question, and where there may be serious disagreement, is whether the person targeted is 'directly participating in hostilities'. If not, and they're targeted, it's a war crime."

Chip Pitts, president of the Bill of Rights Defence Committee, told IPS, "As with its embrace of the [George W.] Bush approach to indefinite detention, the Obama administration's even greater reliance on targeted extra-judicial killing - including of U.S. citizens - is a tragic legal, moral, and practical mistake."

"Even for those who accept the legitimacy of the death penalty, this further undermines the rule of law that is our best weapon in the fight against true terrorists, while completely subverting due process and constitutional rights of U.S. citizens," he said.

Ben Wizner, staff attorney with the ACLU National Security Project, said, "It is alarming to hear that the Obama administration is asserting that the president can authorise the assassination of Americans abroad, even if they are far from any battlefield and may have never taken up arms against the U.S., but have only been deemed to constitute an unspecified 'threat.'"

Testifying before the House of Representatives Intelligence Committee, Blair said, "We take direct action against terrorists in the intelligence community."

He said U.S. counterterrorism officials may try to kill U.S. citizens embroiled in extremist groups overseas with "specific permission" from higher up.

In response to questions from the panel's top Republican, Rep. Pete Hoekstra of Michigan, Blair said, if "we think that direct action will involve killing an American, we get specific permission to do that."

Blair's remarks followed a Washington Post article reporting that U.S. President Barack Obama had embraced his predecessor's policy of authorising the killing of U.S. citizens involved in terrorist activities overseas.

The Post reported that "After the Sep. 11, 2001, attacks, Bush gave the CIA, and later the military, authority to kill U.S. citizens abroad if strong evidence existed that an American was involved in organizing or carrying out terrorist actions against the United States or U.S. interests, military and intelligence officials said. The evidence has to meet a certain, defined threshold. The person, for example, has to pose 'a continuing and imminent threat' to U.S. persons and interests."

The Obama administration appears to have adopted exactly the same policy as its predecessor.

The Post, citing anonymous U.S. officials, said the Central Intelligence Agency (CIA) and Joint Special Operations Command have three U.S. citizens on their lists of specific people targeted for killing or capture.

Blair said he was offering such unusually detailed information in public because "I just don't want other Americans who are watching to think that we are careless."

Blair didn't specifically articulate the standards he used, saying only that "We don't target people for free speech. We target them for taking action that threatens Americans."

Hoekstra cited an incident in 2001 in which Peru's air force shot down a plane carrying U.S. missionaries, killing a woman and her seven-month-old daughter, after the aircraft was misidentified as a drug-smuggler.

"We were careless and we were reckless," Blair replied. "I want to make sure that this committee does everything that it can and within its power that it does not allow the community to be reckless and careless again."

The Washington Post story, by Pulitzer Prize-winner Dana Priest, revealed that, "In November 2002, a CIA missile strike killed six al Qaeda operatives driving through the desert. The target was Abu Ali al-Harithi, organiser of the 2000 attack on the USS Cole. Killed with him was a U.S. citizen, Kamal Derwish, who the CIA knew was in the car."

The article says, "Word that the CIA had purposefully killed Derwish drew attention to the unconventional nature of the new conflict and to the secret legal deliberations over whether killing a U.S. citizen was legal and ethical."

I didn't think it was possible, but former Bush officials -- desperately fighting what they know will be their legacy as war criminals -- have become even more dishonest propagandists out of office than they were in office.  At National Review, Bill Burck and Dana Perino so thoroughly mislead their readers about the DOJ report -- rejecting the findings of the Office of Professional Responsibility (OPR) of ethical misconduct against John Yoo and Jay Bybee -- that it's hard to know where to begin.  They devote paragraph after paragraph to hailing the intelligence and integrity of the report's author, career DOJ prosecutor David Margolis, in order to pretend that he defended Yoo and Bybee's work, claiming that Margolis "officially exonerated Bush-era lawyers John Yoo and Jay Bybee" and that "Margolis rejected OPR's recommendation and most of its analysis."  Perhaps the most deceitful claim is this one:

So, in one corner we have a legal all-star team of Mukasey, Filip, Estrada, Mahoney, Goldsmith [all right-wing Bush lawyers], and Margolis. In the other corner, we have OPR operating far outside its comfort zone and area of expertise. This shouldn't have been close -- and it wasn't, on the merits.

Compare that to what Margolis actually said (p. 67):

For all of the above reasons, I am not prepared to conclude that the circumstantial evidence much of which is contradicted by the witness testimony regarding Yoo's efforts establishes by a preponderance of the evidence that Yoo intentionally or recklessly provided misleading advice to his client.  It is a close question.  I would be remiss in not observing, however, that these memoranda represent an unfortunate chapter in the history of the Office of Legal Counsel.   While I have declined to adopt OPR's finding of misconduct, I fear that John Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to adopt opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client.

Just think about that for a minute.  Margolis said that whether Yoo "intentionally or recklessly provided misleading advice to his client" when authorizing torture -- about the most serious accusation one can make against a lawyer, as it means he deliberately made false statements about the law -- "is a close question."  That's the precise opposite of what Burck and Perino told National Review readers about Margolis' conclusion ("This shouldn't have been close - and it wasn't, on the merits"). 

Moreover, Margolis repeatedly adopted the OPR's findings that the Yoo/Bybee torture memos -- on which the entire American torture regime was constructed and which media elites now embrace in order to argue against prosecutions -- were wrong, "extreme," misguided, and the by-product of "poor judgment."  As Yale Law Professor Jack Balkin so clearly explained, the only thing that saved Yoo in Margolis' eyes was that attorney ethical rules have been written by lawyers to protect themselves, and the bar is therefore so low that it basically includes only "sociopaths and people driven to theft and egregious incompetence by serious drug and alcohol abuse problems." As a result, Margolis could not ultimately conclude that Yoo -- as shoddy and misleading as his torture authorizations were -- purposely lied because Yoo "was an ideologue who entered government service with a warped vision of the world in which he sincerely believed."  Does that remotely sound like exoneration?  

Burck and Perino also include this, a common myth among American elites who do not believe the rule of law should apply to them:

For years now this principle [that "honestly held legal and policy opinions are not cause for prosecution or professional discipline"] has been under sustained attack by hard-core left-wing congressional partisans such as Rep. John Conyers and Sen. Patrick Leahy. It's not much of a stretch to imagine some of the more wild-eyed among them searching for ways to revoke the law licenses of conservative Supreme Court justices. Fortunately, this country is not Venezuela - at least not yet; we should not rest easy.

This oft-repeated notion -- that prosecuting political officials and high-levels lawyers when they commit crimes in office is the hallmark of the "banana republics" of South and Central America -- is exactly the opposite of reality.  As leading political scientists have long documented, the actual hallmark of under-developed and backward nations is the immunity which political elites enjoy from the rule of law no matter how serious their crimes (Thomas Carruthers, Foreign Affairs, 1998:  "Rule-of-law reform [in the Third World] will succeed only if it gets at the fundamental problem of leaders who refuse to be ruled by the law . . . . entrenched elites cede their traditional impunity and vested interests only under great pressure").  What makes a backward country backward is the confederation of elites insisting that investigations and prosecutions are only for the dirty people on the street corner, not for them.

As for the extent to which the U.S. is comparable to Venezuela, let's look to the Bush State Department's 2008 Human Rights report, which calls that country a "constitutional democracy" and then notes:

Although the constitution states that no person shall be subjected to cruel, inhuman, or degrading punishment, there were credible reports that security forces continued to torture and abuse detainees. . . .PROVEA reported that in the 12 months prior to September, it received 17 complaints of torture (an increase from 11 the previous year), and 573 complaints regarding cruel, inhuman, and degrading treatment, a decrease from the 692 cases reported in 2007. PROVEA defines "torture" as methods used by state security forces to extract information from victims and "cruel and inhuman treatment" as methods used by members of state security forces in order to punish or intimidate victims. . . .

The government did not authorize independent investigation of torture complaints. Human rights groups continued to question the attorney general and the human rights ombudsman's commitment to oversee neutral investigations. There was no data available on convictions in cases of alleged torture. . . .

A warrant is required for an arrest or detention. . . . . A person accused of a crime may not be detained for longer than the possible minimum sentence for that crime nor for longer than two years, except in certain circumstances, such as when the defendant is responsible for the delay in the proceedings. Detainees were promptly informed of the charges against them. . . . Detainees were provided access to counsel and family members.

So, other than the fact that (a) the number of torture complaints in Venezuela is miniscule when compared to what the U.S. did (there were at least 100 deaths of detainees in U.S. custody alone); (b) all detainees in Venezuela were criminally charged and provided access to counsel and family, and (c) nobody has accused Venezuela of invading and bombing other countries and abducting people off the street and shipping them around the world to be tortured, what is happening in Venezuela actually sounds quite similar to what Burck, Perino and their friends did and continue to advocate and justify.

That Bush officials have to cling to the harsh condemnations of Margolis as "vindication" reveals just how wretched and lawless their conduct was.  Essentially, the current posture of the U.S. to the world is this:

Yes, we implemented a worldwide torture regime that we justified with lawyers' memoranda that were false, wrong, shoddy, lawless, sloppy and extremist, but because those lawyers were such warped radicals, they probably believed what they were saying at the time, so we're going to declare that we had the right to do what we did and are shielded from all consequences, even though we've signed treaties agreeing to prosecute anyone who authorizes torture and demanded that other nations prosecute their own torturers.  Besides, we have important things to do and thus want to Look Forward, not Backward.

Doesn't that make you proud?

* * * * *

How will media stars and right-wing polemicists justify their claim that only fringe Far Leftists care about and oppose "enhanced interrogation techniques" now that General David Petraeus has joined so many other military leaders in resoundingly rejecting the morality, legality and wisdom of those tactics?

CREW Asks Attorney General to Investigate Destruction of Emails Relating to Torture Memos