As we all know, NBC released a leaked white paper on the Obama WH's drone strike policy on Tuesday. That white paper has been addressed here at considerable length, but one snippet from it still jumps out at me:
The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” the memo states.
Instead, it says, an “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.” The memo does not define “recently” or “activities.”
Every time I read this snippet, I think of Robert Kennedy's 1966 grilling of the Kern County (CA) Sheriff during Senate subcommittee hearings on the treatment of farmworkers. When the sheriff spoke about arresting farmworkers who had yet to break any laws, the following exchange occurred:
Sheriff, Kern County, California (archival): If I have reason to believe that there’s going to be a riot started and somebody tells me that, “There’s going to be trouble if you don’t stop 'em,” then it’s my duty to stop 'em and I—At the conclusion of this exchange, RFK told the sheriff that he and the local DA should, over the lunch break, "read the Constitution of the United States." A former AG of the US understood the underlying principle of our legal system that someone must have actually violated a law before they are arrested. Sadly, the current AG and other members of the WH in which he serves take a different viewpoint.
Robert F. Kennedy (archival): And then, you go out an arrest them?
Sheriff, Kern County, California (archival): Well, absolutely.
Robert F. Kennedy (archival): And charge them?
Sheriff, Kern County, California (archival): And charge them.
Robert F. Kennedy (archival): What do you charge them with?
Sheriff, Kern County, California (archival): Well, violating unlawful assembly.
Robert F. Kennedy (archival): Now, this is the most interesting concept, I think, that you suddenly hear talk about the fact that somebody makes a report about somebody’s going to get out of order, perhaps violate the law, and you go in and arrest them and they haven’t done anything wrong. How can you go arrest somebody if they haven’t violated the law?
Sheriff, Kern County, California (archival): They’re ready to violate the law. In other words— [laughter, jeers from audience]
The idea that a president and his people can hold untrammelled powers of life and death over people literally on the other side of the planet shakes our system to its foundations. RFK is a hero of mine b/c, in that hearing, he unequivocally stood for the core precept of due process of law. Today, Uncle Sam stands for the proposition that the president and undisclosed advisers can unilaterally sentence people to death for crimes that such people might commit in the future. The Kern County sheriff merely locking people up in his own jurisdiction seems almost quaint by comparison.
As per Stephen Marche of Esquire:
Where are we going to find a better description of what the Obama administration is doing with their legal defense of targeted killing? They have made the president into a sovereign. Their language hides this basic fact: The president now gets to decide when the law doesn't apply. The vague terminology in the white paper — "imminent threat" and "national self-defense" — is intended to be meaningless. Threat and self-defense can be defined in any way the president likes. He gets to choose.I don't know what RFK would say about this White Paper were he alive today. I do know that there's an 180 degree difference between the philosophy that he enunciated in that hearing then and the policy of this WH today. There's something truly disturbing that the only president we've ever had who previously taught Con Law has adopted a policy that can fairly be described as Nixon on steroids.
Now from the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
The authors of that document could not have been clearer. There are no exceptions under the law. There are no sovereigns. There is equality under the law and that's it. Nobody gets to decide who doesn't have rights under the Constitution. What's so terrifying about this white paper is that it's unconstitutional, not in the sense that it violates any particular tenet of the American Constitution, but in that it doesn't respect the premise of there being a Constitution in the first place. The whole idea of having a Constitution is that no individual gets to decide what's an exception to it.
I'm old enough to recall when Dems like Ervin, Rodino, and Cox (a Kennedy family friend) drove a president who had just been re-elected (in a landslide) from office b/c of his disregard for basic constitutional norms. I never thought that I would vote twice for a Dem president would take, arguably, an even more extreme view of executive power.