By Michael Ratner. Originally published at CommonDreams.
Last week, the dramatic filibuster delaying John Brennan’s confirmation as our new CIA director begged for an answer to one question: “does the President have authority to order a targeted killing by drone of an American citizen not actively engaged in combat on U.S. soil?” Many in the Senate, especially the so-called Progressive Democrats who approved Brennan’s nomination, likely hoped that the end of Senator Rand Paul’s filibuster, along with Attorney General Eric Holder’s subsequent terse note, might quietly end the controversy. But a lingering question continues to roil Washington: “How did we get to the point where due process for American citizens on American soil was ever even in doubt?”
The phrase “sow the wind, reap the whirlwind” comes to mind. The stripping of citizens’ rights began with the evisceration of the rights of non-citizens. It began with the Authorization for Use of Military Force (AUMF, September 14, 2001) against those responsible for the 9/11 attacks, making the world a battlefield—a battlefield expanded by Presidents Bush and Obama beyond Iraq and Afghanistan to Somalia, Yemen, Pakistan. The category of potential targets, initially those who perpetrated 9/11 or harbored the perpetrators, has likewise grown so that the Obama Administration can pretty much kill anyone it wants. The AUMF has become this generation’s Gulf of Tonkin, the Vietnam-era resolution that US presidents used to kill millions and expand the war into Laos and Cambodia. It took years and over 50,000 American deaths to rid our country of that scourge. And it will take time now to do the same, but our work must begin.
The AUMF, after all, was just the first in an avalanche of policies that treated violations of international law as wholly acceptable. Soon after came the capture and treatment of so-called enemy combatants on this global battlefield: torture, rendition, indefinite detention, Guantanamo, and military commissions. Attorney General John Ashcroft declared that terrorists don’t deserve constitutional rights. Somehow he, like President Obama, was certain of these supposed terrorists’ guilt even though they never had the benefit of a trial. All of these outrages are and remain illegal and outside the law. Criminal law and its protections should have been applied; at a minimum, the Geneva Conventions should have been triggered but, today, justice no longer seems to require due process under law. Now, that so-called battlefield has come full circle back to our own shores. It’s a lesson learned many times in history, but needs to be taught again and again: You take away rights from one, you take them from all.
The powers the president has boldly claimed the right to use now exceed, in many ways, those of his predecessor. And of course, many of the powers claimed by both the Bush and Obama Administrations exceed those that any president prior to the September 11th attacks would even conceive of. The shame is that this entire debate over the Executive’s authority took so long to occur, and when it did it came down to a single brave Senator who was willing to stand up. After years of targeted drone killings elsewhere, it was the incredible overreach of a president asserting authority to use drones against Americans that finally garnered some attention.
But for those breathing a sigh of relief over Attorney General Holder’s carefully-worded assurances that the president cannot order domestic drone strikes on citizens not engaged in combat, one need only look back a few years to see how slippery the slope really is. While Senator Paul moved us forward by demanding clarity about the extent of the Executive’s authority in this war, the Senate moved us back by confirming John Brennan as head of the CIA. Towing the line of a party that supposedly champions civil liberties, all but two Democrats voted to confirm the man who has overseen the targeted killing program for the last four years as Obama’s chief counterterrorism advisor. This places even more tools into the hands of someone who believes not only in the rights of the Executive to kill US citizens without due process, but who has been integral in expanding the US’s battlefield across the globe.
Even more disturbing is that Brennan is the man who, just four years prior, was not confirmed to the same position due to strong opposition by human right organizations for his proximity to Bush-era torture policies. Now that he has graduated from torture to murder, however, all is good and well.
“It is a sad day for human rights when a program that has killed over 4,000 people around the world without due process can only conjure serious opposition domestically when we perceive a threat to American lives.”
It is an ironic twist of fate that it was Tea Party darling, Senator Paul, who actually stood, literally, for 13 hours straight in favor of civil liberties and against the Executive’s self-appointed position as judge, jury, and executioner. The reward for his efforts, in the form of Holder’s letter, earned the Kentucky senator the distinct honor of being the only person to have ever forced an acknowledgement of a limit to the Administration’s targeted killing program.
But though Senator Paul earned this distinction, exposed the extent to which many liberals in Congress will choose partisan tribalism over moral consistency, and, in the process, won the support of a whole new demographic – a “Freaky Friday” scenario best embodied by the image of Code Pink activists showering Sen. Paul with flowers, chocolate, and profuse adulation – his work did not go nearly far enough.
Sen. Paul acknowledges this, and he wants to keep going. He recently published an op-ed in the Washington Post promising that his filibuster was “just the beginning.” He stated that he recognizes his actions’ potential to “spur a national debate about the limits of executive power, and the scope of every American’s natural right to be free,” and that “‘due process’ is not just a phrase that can be ignored at the whim of the president.” We must help turn these claims into action: insist that our Congressmen represent their constituents, not just their party, and limit the powers that have no place in a civilized society that purports to protect human rights.
It is a sad day for human rights when a program that has killed over 4,000 people around the world without due process can only conjure serious opposition domestically when we perceive a threat to American lives. It’s a sad day for human rights when Guantanamo remains open with 166 people still detained, and no one in our government taking steps to close it. It’s an abomination of justice to watch 11 years of military commissions bumble their way to nowhere except to profound embarrassment. It’s surreal to watch domestic torturers get off scot free and brag about torture, to boot. And it is downright naïve to think that the Executive’s conjured powers will simply limit themselves from manifesting onto U.S. shores: if not in this administration, then the next one, or the one after.
The only way to eliminate the lawless state the U.S. has become is to confront our new post-9/11 war paradigm, which claims the right to circumvent international law, our own constitution, and the criminal law that ordinarily dictates the pursuit of individual suspects within sovereign nations, and take back its powers. As the New York Times’ editorial board suggested, a first step is to repeal the Authorization for Use of Military Force. Other actions that need to be taken are clear: close Guantanamo, end indefinite detention, shut down military commission trials, and prosecute the torture team. All of this may be a way off, but we thought the same about any limits on targeted killings until Senator Paul’s accomplishment. It will, however, take more than our jelly-like politicians to do it all.
It is possible to redirect this whirlwind our leaders have reaped, but only if we use the winds of change blowing through Washington and across the country. The time to act, for all of us, is now.
Michael Ratner is the president emeritus of the Center for Constitutional Rights and currently serves as attorney for Julian Assange and Wikileaks. He is co-author with Margaret Ratner Kunstler of “Hell No: Your Right to Dissent in the Twenty-First Century”.