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Drone-Killing the Fifth Amendment
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You can’t get more serious about protecting the people from their government than the Fifth Amendment to the Constitution, specifically in its most critical clause: “No person shall be… deprived of life, liberty, or property, without due process of law.” In 2011, the White House ordered the drone-killing of American citizen Anwar al-Awlaki without trial. It claimed this was a legal act it is prepared to repeat as necessary. Given the Fifth Amendment, how exactly was this justified? Thanks to a much contested, recently released but significantly redacted — about one-third of the text is missing — Justice Department white paper providing the basis for that extrajudicial killing, we finally know: the president in Post-Constitutional America is now officially judge, jury, and executioner.

Due Process in Constitutional America

Looking back on the violations of justice that characterized British rule in pre-Constitutional America, it is easy to see the Founders’ intent in creating the Fifth Amendment. A government’s ability to inflict harm on its people, whether by taking their lives, imprisoning them, or confiscating their property, was to be checked by due process.

Due process is the only requirement of government that is stated twice in the Constitution, signaling its importance. The Fifth Amendment imposed the due process requirement on the federal government, while the Fourteenth Amendment did the same for the states. Both offer a crucial promise to the people that fair procedures will remain available to challenge government actions. The broader concept of due process goes all the way back to the thirteenth-century Magna Carta.

Due process, as refined over the years by the Supreme Court, came to take two forms in Constitutional America. The first was procedural due process: people threatened by government actions that might potentially take away life, liberty, or possessions would have the right to defend themselves from a power that sought, whether for good reasons or bad, to deprive them of something important. American citizens were guaranteed their proverbial “day in court.”

The second type, substantive due process, was codified in 1938 to protect those rights so fundamental that they are implicit in liberty itself, even when not spelled out explicitly in the Constitution. Had the concept been in place at the time, a ready example would have been slavery. Though not specifically prohibited by the Constitution, it was on its face an affront to democracy. No court process could possibly have made slavery fair. The same held, for instance, for the “right” to an education, to have children, and so forth. Substantive due process is often invoked by supporters of same-sex unions, who assert that there is a fundamental right to marry. The meaning is crystal clear: there is an inherent, moral sense of “due process” applicable to government actions against any citizen and it cannot be done away with legally. Any law that attempts to interfere with such rights is inherently unconstitutional.

Al-Awlaki’s Death

On September 30, 2011, on the order of the president, a U.S. drone fired a missile in Yemen and killed Anwar al-Awlaki. A Northern Virginia Islamic cleric, in the aftermath of 9/11 he had been invited to lunch at the Pentagon as part of a program to create ties to Muslim moderates. After he moved to Yemen a few years later, the U.S. accused him of working with al-Qaeda as a propagandist who may have played an online role in persuading others to join the cause. (He was allegedly linked to the “Underwear Bomber” and the Fort Hood shooter.) However, no one has ever accused him of pulling a trigger or setting off a bomb, deeds that might, in court, rise to the level of a capital crime. Al-Awlaki held a set of beliefs and talked about them. For that he was executed without trial.

In March 2012, Attorney General Eric Holder made quite a remarkable statement about the al-Awlaki killing. He claimed “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’” In other words, according to the top legal authority in the nation, a White House review was due process enough when it came to an American citizen with al-Qaeda sympathies. In this, though it was unknown at the time, Holder was essentially quoting a secret white paper on that killing produced by the Office of Legal Counsel, located in the department he headed.

In June 2014, after a long court battle to shield the underlying legal basis for the killing, the Obama administration finally released a redacted version of that classified 2010 white paper. In the end, it did so only because without its release key senators were reluctant to confirm the memo’s author, David Barron, who had been nominated by President Obama to serve on the First Circuit Court of Appeals. (Once it was made public, Barron was indeed confirmed.)

The importance of the white paper to understanding Post-Constitutional America cannot be understated. Despite all the unconstitutional actions taken by the government since 9/11 — including striking violations of the Fourth Amendment — this paper is to date the only glimpse we have of the kind of thinking that has gone into Washington’s violations of the Bill of Rights.

Here’s the terrifying part: ostensibly the result of some of the best legal thinking available to the White House on a issue that couldn’t be more basic to the American system, it wouldn’t get a first-year law student a C-. The arguments are almost bizarrely puerile in a document that is a visibly shaky attempt to provide cover for a pre-determined premise. No wonder the administration fought its release for so long. Its officials were, undoubtedly, ashamed of it. Let’s drill down.

Death by Pen

For the killing of an American citizen to be legal, the document claims, you need one essential thing: “an informed, high-level official of the U.S. government [who] has determined that the targeted individual poses an imminent threat of violent attack against the United States.” In addition, capture must be found to be unfeasible and the act of killing must follow the existing laws of war, which means drones are okay but poison gas is a no-no.

The rest of the justification in the white paper flows from that premise in a perverse chain of ankle-bone-connected-to-the-leg-bone logic: the president has the obligation to protect America; al-Qaeda is a threat; Congress authorized war against it; and being in al-Qaeda is more relevant than citizenship (or as the document crudely puts it, “citizenship does not immunize the target”). International borders and the sovereignty of other nations are not issues if the U.S. determines the host nation is “unwilling or unable to suppress the threat posed by the individual targeted.” Basically, it’s all an extension of the idea of self-defense, with more than a dash of convenience shaken in.

When the white paper addresses the Fifth Amendment’s right to due process, and to a lesser extent, the Fourth Amendment’s right against unwarranted seizure (that is, the taking of a life), it dismisses them via the “balancing test.” Not exactly bedrock constitutional material, it works this way: in situations where the government’s interest overshadows an individual’s interest, and the individual’s interest isn’t that big a deal to begin with, and a mistake by the government can later be undone, the full due process clause of the Fifth Amendment need not come into play.

The three-point balancing test cited by the white paper as conclusive enough to justify the extrajudicial killing of an American comes from a 1976 Supreme Court case, Mathews v. Eldridge. There, the court held that an individual denied Social Security benefits had a right to some form of due process, but not necessarily full-blown hearings. In Anwar al-Awlaki’s case, this translates into some truly dubious logic: the government’s interest in protecting Americans overshadows one citizen’s interest in staying alive. Somehow, the desire to stay alive doesn’t count for much because al-Awlaki belonged to al-Qaeda and was in the backlands of Yemen, which meant that he was not conveniently available by capture for a trial date. Admittedly, there’s no undoing death in a drone killing, but so what.

The white paper also draws heavily on the use of the balancing test in the case of Hamdi v. Rumsfeld, in which the U.S. rendered from Afghanistan Yaser Hamdi, a Saudi-American citizen, and sought to detain him indefinitely without trial. After a long legal battle that went to the Supreme Court, the balance test was applied to limit — but not fully do away with — due process. Despite limiting Hamdi’s rights in service to the war on terror, the court was clear: Yaser Hamdi should have a meaningful opportunity to challenge his status. Fearing that giving him his moment in court would expose the brutal reality of his capture, interrogation, and detention, the U.S. government instead released him to Saudi Arabia.

Hamdi’s case dealt with procedural questions, such as whether he should be allowed a trial and if so, under what conditions. As with Mathews v. Eldridge,Hamdi never focused on issues of life and death. Cases can be (re)tried, prisoners released, property returned. Dead is dead — in the case of al-Awlaki that applies to the drone’s target, the balance test, and the Fifth Amendment itself.

What Do Words Mean in Post-Constitutional America?

Having dispensed with significant constitutional issues thanks to some exceedingly dubious logic, the white paper returns to its basic premise: that a kill is legal when that “informed, high-level official” determines that an “imminent threat” to the country is involved. In other words, if the president is convinced, based on whatever proof is provided, he can order an American citizen killed. The white paper doesn’t commit itself on how far down the chain of “high-level officials” kill authority can be delegated. Could the Secretary of the Interior, for instance, issue such an order? He or she is, after all, eighth in the line of succession should the president die in office.

The white paper does, however, spend a fair amount of time explaining how the dictionary definitions of “imminent” and “immediate” do not apply. For kill purposes, it says, the U.S. must have “clear evidence that a specific attack on U.S. persons will take place in the immediate future.” However, the paper goes on to explain that “immediate” can include a situation like al-Awlaki’s in which a person may or may not have been engaged in planning actual attacks that might not be launched for years, or perhaps ever. The paper claims that, since al-Qaeda would prefer to attack the U.S. on a continual basis, any planning or forethought today, however fantastical or future-oriented, constitutes an “imminent” attack that requires sending in the drones.

And if, as perhaps the author of the paper suspected, that isn’t really enough when faced with the bluntness of the Constitution on the issue, the white paper haphazardly draws on the public authority justification. According to this legal concept, public authorities can, in rare circumstances, violate the law — a cop can justifiably kill a bad guy under certain conditions. By extension, the white paper argues, the government of the United States can drone-kill a citizen who is allegedly a member of al-Qaeda. The white paper conveniently doesn’t mention that police shootings are subject to judicial review, and those who commit such unlawful acts can face punishment. The laws behind such a review are unclassified and public, not the rationed fodder of a redacted white paper.

For the final nail in the coffin of some American citizen, the white paper concludes that, Fifth Amendment violation or not, its arguments cannot be challenged in court. In cases of “foreign policy,” courts have traditionally almost always refused to intervene, holding that they are in the realm of the executive branch in consultation, as required, with Congress. Killing an American abroad, the white paper insists, is a foreign policy act and so none of any courts’ business.

Principles

Substantive due process legally applies only to legislation, and it is highly unlikely that the Obama administration will seek legislative sanction for its kill process. So it is in one sense not surprising that the white paper makes no mention of it. However, looking at what we can read of that redacted document through the broader lens of substantive due process does tell us a lot about Post-Constitutional America. In Constitutional America, the idea was that a citizen’s right to life and the due process that went with it was essentially an ultimate principle that trumped all others, no matter how bad or evil that person might be. What is important in the white paper is not so much what is there, but what is missing: a fundamental sense of justness.

As medieval kings invoked church sanction to justify evil deeds, so in our modern world lawyers are mobilized to transform government actions that spit in the face of substantive due process — torture, indefinite detention without charge, murder — into something “legal.” Torture morphs into acceptable enhanced interrogation techniques, indefinite detention acquires a quasi-legal stance with the faux-justice of military tribunals, and the convenient murder of a citizen is turned into an act of “self-defense.” However unpalatable Anwar al-Awlaki’s words passed on via the Internet may have been, they would be unlikely to constitute a capital crime in a U.S. court. His killing violated the Fifth Amendment both procedurally and substantively.

Despite its gravity, once the white paper was pried loose from the White House few seemed to care what it said. Even the New York Times, which had fought in court alongside the ACLU to have it released, could only bring itself to editorialize mildly that the document offered “little confidence that the lethal action was taken with real care” and suggest that the rubber-stamp secret Foreign Intelligence Surveillance Court be involved in future kill orders. The ACLU’s comments focused mostly on the need for more documentation on the kills. Meanwhile, a majority of Americans, 52%, approve of drone strikes, likely including the one on Anwar al-Awlaki.

The Kind of Country We Live In

We have fallen from a high place. Dark things have been done. Imagine, pre-9/11, the uproar if we had learned that the first President Bush had directed the NSA to sweep up all America’s communications without warrant, or if Bill Clinton had created a secret framework to kill American citizens without trial. Yet such actions over the course of two administrations are now accepted as almost routine, and entangled in platitudes falsely framing the debate as one between “security” and “freedom.” I suspect that, if they could bring themselves to a moment of genuine honesty, the government officials involved in creating Post-Constitutional America would say that they really never imagined it would be so easy.

In one sense, America the Homeland has become the most significant battleground in the war on terror. No, not in the numbers of those killed or maimed, but in the broad totality of what has been lost to us for no gain. It is worth remembering that, in pre-Constitutional America, a powerful executive — the king — ruled with indifference to the people. With the Constitution, we became a nation, in spirit if not always in practice, based on a common set of values, our Bill of Rights. When you take that away, we here in Post-Constitutional America are just a trailer park of strangers.

Peter Van Buren blew the whistle on State Department waste and mismanagement during the Iraqi reconstruction in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A Tom Dispatch regular, he writes about current events at his blog, We Meant Well. His new book, Ghosts of Tom Joad: A Story of the #99Percent, is available now.

(Republished from TomDispatch by permission of author or representative)
 
• Category: Foreign Policy • Tags: Civil Liberties, Drones 
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  1. Don Nash says: • Website

    America’s Constitutional Bill of Rights is null and void. Post 9/11 histrionics and subsequent “legislation” put an end to that. PATRIOT ACT and by god, it is every Americans DUTY to cease and desist their bitching. Just you ask the Krauthammer.

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  2. Anonymous • Disclaimer says:

    “The importance of the white paper … cannot be understated.” What is meant is that it cannot be overstated.

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  3. oh, gosh. Looks like this is yet another idiotic internet blogspot that is going to require a rather lengthy LeftistConservative special rant. Ah, well, someone’s gotta do it.

    OK, now pay attention. I am only gonna say this once.

    The ‘civil liberties’ thing was an artifact, a side-effect of Capital’s war on Labor with respect to Capital expanding the pool of workers and consumers available for the grist mill of Capital. Read that sentence again. Ya don’t understand, do ya? No surprise there. Please allow me to expand upon that.

    There is a war going on, brotha. It’s Capital vs Labor. Capital is winning, big time. But not in the way you think. The whole civil liberties thing really took off when Capital decided to expand the pool of labor and consumers starting, oh, 70 or 80 years ago. In effect, Capital launched a new offensive in that war about that time. As a result of that new offensive, an entire body of civil liberties laws and judicial rulings came in being, were put in place. The purpose and effect of that body of civil liberties laws and judicial rulings was to elevate nonwhites (black, in particular) in social status and to “integrate” them into white mainstream society. As a result of this “racial integration,” the pool of available labor expanded. More supply. That favors Capital. More earners == more spenders. That favors Capital.

    Also, a racially integrated society that has minority members in substantial numbers fully integrated and voting means a more diverse society. More diverse== more factionalized. More factionalized == less unity. Less unity means the populace has less power to unite and control the government. That favors Capital.

    So, a major tool of Capital in its battle to racially integrate was the body of civil liberties laws and rulings. Civil liberties help prevent the white majority from stopping racial integration.

    Now, to the present day. Capital won that battle against Labor. How? Through propaganda used to change the culture over decades. You start with academia. You give grants to academics and activists etc who promote racial diversity, racial integration, and who write books and other materials that make whites feel ashamed of slavery. Never mind that the 1860 census shows that only 1.5 percent of all americans owned slaves (and that you had to be well off to own a slave, in general). Nope. Capital used used its money to create white-guilt propaganda to change the culture, which all snowballed over decades and raised the social status of nonwhites. Nowadays, in many white schools, blacks are seen as the “cool kids” and are highly sought after as friends.

    The propaganda built in white guilt memes into well educated young people, and then those people went on the create the civil rights movement.

    So, now that battle has been won. And now Capital has little use for civil liberties. Well, maybe they have less use for them. Capital is still very interested of course in making sure immigrants of all colors and flavors are protected and feel comfortable coming here.

    Anyway, I know you don’t understand. But that’s just tough…

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    • Replies: @voluntaryist
    "Anyway, I know you don't understand. But that's just tough..."

    Translation: I explain everything in social/political jargon like "Capital" and "Labor" straight out of the Marxist economic theory without definitions, knowing most won't understand. But I don't care, because I'm a pompous ass who doesn't want to be coherent. People who are coherent can be proven to be wrong. I can't because I can always claim you misunderstood me.
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  4. TomB says:

    I’m sorry but as much as I am sympathetic to Mr. Van Buren’s general political sensibilities concerning our recent history, what he’s done here is to mistake this al-Awlaki business taking place in the very different field (of law/constitutional law that is, and in a rather recondite branch of constitutional field to boot that few lawyers are even familiar with), for what has been taking place in our political field generally.

    Indeed, if anything the fact that the Administration even felt the *need* to prepare a legal memoranda justifying the killing of al-Awlaki is a development in quite the opposite direction from the one that Mr. Van Buren sees.

    And his legal errors are such that I think are significant enough to comment on given the wrongful view of our practical reality that some might come to erroneously embrace. And that skewed view of our practical reality concerns not just the question of the power of our Presidents to do what Mr. Obama did with Mr. al-Awlaki, but the whole constellation of powers that our Presidents and Congresses have, especially in wartime.

    Moreover that skewed view distracts I think from where our attentions ought be more profitably devoted, which I will get to.

    Mr. Van Buren’s thesis again is that one of the damages we have suffered of late due especially to our wrongful foreign and military policies in the Mideast (which I wholeheartedly agree have been terrible) is this denigration if not destruction of our Fifth Amendment and indeed perhaps our other constitutional rights as well, or at least certainly Mr. al-Awlaki’s Fifth Amendment rights.

    But this is wrongheaded, as I think Mr. Van Buren might well admit once it is made apparent where his logic leads.

    Just offhand I believe that Mr. Van Buren’s mistake springs from a misapprehension of a number of issues:

    First, the lack of understanding of the degree to which *all* our constitutional rights have long held to not be absolute and to be subject to being “balanced” (and thus lost) against other interests involved in specific instances.

    Second, the lack of understanding of the fact in wartime, and indeed even when not at war but when it is found that Congress or the President are acting under their constitutional “war powers,” that this can *very* substantially change how other things under the document—such as our rights even—have been seen by the courts.

    Third, the lack of understanding that we *have* most certainly been in a fully constitutional war of enormous scope as per hundreds if not thousands of Congressional and Presidential statements and acts, and that our Constitution does not admit of *degrees* of wartime but instead just confers its war powers on our Congresses and Presidents wholesale once any wars are so embarked upon.

    Fourth, the lack of understanding that, when it comes not just to Presidential powers in matters of foreign policy but especially in wartime and especially when a President is acting as Commander-in-Chief our courts have to an enormous degree that they will defer to the President to make the decisions as to what is constitutional and what is not. Consequentially meaning—as shocking as that may sound—that unless the Supreme Court rules otherwise in this or that situation, what the President says *is* the law.

    (And don’t blame me for this; again this is the situation the Supreme Court *itself* has clearly established, using all kinds of reasoning and logic and tenets and stuff to get there, such as something called “the political question” doctrine,” and “extraordinary deference” when it comes to military or foreign affairs, nd on and on and on.)

    The fact is that even what might be thought of as our most categorical right—to not have our freedom of speech abridged—same has long held to be balanced by and over-ridden on occasion by competing interests. Hence you do not have the right to shout “fire!” in a crowded theater. Hence you have no right to libel someone. Hence you have no right to advocate for the violent overthrow of our government even.

    So there’s that.

    And then as stated there’s the further fact is that it has long been accepted that when we at war things are different. See this as putting competing “interests” on the “balancing scale” if you want, or see it as just producing a very discrete body of “constitutional law during wartime,” but that’s the clear reality of the relevant Supreme Court jurisprudence.

    And, after all, this can hardly be condemned as being pulled from the air: The constitution *itself* remember speaks of the ability to suspend habeas corpus even, and I think there’s few doubters that at least Congress if not the President (as Lincoln did) has the power to declare martial law, which of course does more than just some damage to your Fifth Amendment rights.

    (Or, to put it another way, do you really think that if we experienced an actual invasion from a foreign country, with lots of Americans helping them, that the President would be held by the Supreme Court to be unable to suspend *any* of the Bill of Rights? *Anywhere* in the country?)

    Remember, our Framers were writing at a time not like today when it’s almost inconceivable that we could lose a war or even let one hugely cause us chaos, but when invasion and defeat was a real possibility. (With invasion of course coming in 1812.) And thus as one old legal commentator put it ages ago, it’s simply logical to assume that when giving the power to make war the Framers were giving enough of it to make sure such wars of all kinds could be won successfully. And there’s not a sentence from any Supreme Court justice ever that would seem to question that they would embrace that idea too.

    As noted, we *have* been in a state of war for over a decade now, and what our Courts done with so many of these foreign/military affairs cases but in essence turned away from them. Again, have in effect said they are going to defer to the *President’s* constitutional interpretation on such matters.

    This is why, quite contrary to providing any support for Mr. Van Buren’s thesis, I don’t think there’s going to be any successful suit by Mr. al-Alwaki’s family for the deprivation of his Fifth Amendment rights from any court whatsoever. None. Mr. Van Buren is just seeing things wrong legally here.

    And what, after all, is he really saying here? Where does his logic lead?

    It leads of course to the idea that, in wartime, before going after an American who he believes is aiding our enemy against us, on foreign soil, that the President either cannot do so at all because of “substantive” due process, or somehow he should have to go to a court—even if the American doesn’t claim the right—and somehow, despite the case and evidence being far away, meet some burden of proof to that court that … what? That American really *is* an enemy? Is a *total* enemy?

    And indeed whether that guy is still an “American” even given a President professing the power to declare that person to have renounced their citizenship once they took up arms against us?

    Or does Mr. Van Buren mean to say even *that* must be litigated?

    This is why no court is going to find for Mr. Van Buren’s idea. Obviously, especially in wartime, this is the kind of decision-making a Commander-in-Chief makes, and that’s *precisely* the basis and reason the courts have kept their hands so far out of such things in the main.

    This is why I suspect that even Mr. Van Buren is not really in favor of going where his logic takes us.

    Once again I will match my disgust with the damage our recent foreign and military adventures have inflicted on us with anyone, but it just is wrong to see it as causing some huge damage to our constitutional rights *as Mr. Van Buren sees here.*

    As I said, if anything the fact that Obama asked for this Memo to be written shows us going in the opposite direction in a way: Can anyone imagine the reaction in the Roosevelt administration or the country back in the 1940′s at the suggestion, if they wanted to try to target Tokyo Rose in a bombing run, that they would have to even write out such a memo on toilet paper?

    As I said I write here not only because I have seen any number of similarly misapprehending pieces over the last decade or so giving what I believe is that false sense of reality. To wit, blaming our current war(s) for diminishing or depriving us of this or that or all our constitutional rights, when, as noted, I believe the clear jurisprudence just simply has been (right or wrong) that in wartime we probably never really had those rights really to begin with.

    But beyond merely noting here that we shouldn’t be crying overly much for the deprivation of any of Mr. al-Awlaki’s alleged rights my greater concern is that this sort of piece distracts us from a far more important consideration and reality that we should never forget. And that is our forgetting the full reality of what going *to* war means, and why we should always be far more suspicious of it than we are.

    To put it in a nutshell, just think of the almost … sporting-game sensibility we had when it was debated whether we should go to war against Iraq and give our Presidents all the powers contained in those now long-ago authorizations for the use of force/declarations of war. Yes there was some squabbling over it, but here’s the thing:

    Americans I think have forgotten precisely what I have tried to explain above: When you go to war you are not just giving the government the power to go whacking someone else. You are giving it the power to go whack *your* rights too, and history shows that each and every war we have been in has shown us emerging with less rights than when we entered.

    *That* “rights message* then is the one I don’t like seeing distracted from. Not that the Fifth Amendment right of a American overseas dabbling with enemies is meaningless, but that it certainly pales in comparison to *all* the rights *all* of us find in jeopardy when we see our government go to war.

    And yet I think this is precisely something that many if not most people don’t really fully realize. Not just historically in terms of its truth, but even just legally/theoretically.

    And in that respect I think it sort of forms a huge yet eternally missing consideration about war for some reason. One that ought be corrected.

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  5. mulp says:

    It says “no person” not “no citizen” so you are calling into question the whole concept of war even for defense. Are you prepared to say that invaders with guns must get due process of a court trial and capital judgement before they can be shot by defenders?

    In very few places does the Constitution use “citizen” because they saw no restrictions on who was welcome to the 13 States which they, the founders, hoped to expand to more States as the population increased from immigration, something they saw as necessary. However, these persons needed to be tested by citizens to be determined worthy of citizenship. Citizenship required a person meet the conditions set by Congress and by the State where they had lived for the required period.

    In the context of the Constitution as written, Anwar al-Awlaki would not qualify as a “citizen”, but would have been merely a “person” no different than the persons Osama bin Laden or Adolf Hitler. Anwar al-Awlaki became a “citizen” in addition to a “person” by a failure of Republicans post Civil War to understand the Constitution’s basic concept of citizen as having a role in governance: voting, holding office, etc.

    And today, many like Mr Van Buren totally misunderstand the scope of the Constitution’s use of “person” and rights. Those “inalienable rights” are without limits to location. It is only the limits of the government of the People that is limited to the territory of the USA. A person does not lose rights because they are not a US citizen or not in the US, but the US Constitution does not project the power of due process outside the USA. And a US citizen is not “protected” by the US Constitution any more than a person outside the USA is, The US Constitution simply does not apply in France or Japan or Yemen. (Those in the Navy or Army or diplomatic corp are subject to the laws that gave them their official authority.)

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    • Replies: @voluntaryist
    Why doesn't the Constitution apply outside the US? It does. It applies to all US authorities. They can't escape their oath by leaving the US. The Constitution is not an umbrella of legal protection. It is a list of duties, responsibilities, and prohibitions for US officials. It applies to them without exemption. The problem is, it gives the officials the power to be judge, prosecutor, and jury with regard to their oath. Consequently, they do not find themselves guilty, so punishment is never needed. They don't charge themselves most of the time for clear violations. They are guilty in the court of public opinion but there is no remedy there, except the unthinkable abolition of this unlimited, irrational, unworkable system of government. It's unthinkable because the public is brainwashed by public school indoctrination. They are unwitting slaves to their own enslavement.
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  6. @leftistconservative
    oh, gosh. Looks like this is yet another idiotic internet blogspot that is going to require a rather lengthy LeftistConservative special rant. Ah, well, someone's gotta do it.

    OK, now pay attention. I am only gonna say this once.

    The 'civil liberties' thing was an artifact, a side-effect of Capital's war on Labor with respect to Capital expanding the pool of workers and consumers available for the grist mill of Capital. Read that sentence again. Ya don't understand, do ya? No surprise there. Please allow me to expand upon that.

    There is a war going on, brotha. It's Capital vs Labor. Capital is winning, big time. But not in the way you think. The whole civil liberties thing really took off when Capital decided to expand the pool of labor and consumers starting, oh, 70 or 80 years ago. In effect, Capital launched a new offensive in that war about that time. As a result of that new offensive, an entire body of civil liberties laws and judicial rulings came in being, were put in place. The purpose and effect of that body of civil liberties laws and judicial rulings was to elevate nonwhites (black, in particular) in social status and to "integrate" them into white mainstream society. As a result of this "racial integration," the pool of available labor expanded. More supply. That favors Capital. More earners == more spenders. That favors Capital.

    Also, a racially integrated society that has minority members in substantial numbers fully integrated and voting means a more diverse society. More diverse== more factionalized. More factionalized == less unity. Less unity means the populace has less power to unite and control the government. That favors Capital.

    So, a major tool of Capital in its battle to racially integrate was the body of civil liberties laws and rulings. Civil liberties help prevent the white majority from stopping racial integration.

    Now, to the present day. Capital won that battle against Labor. How? Through propaganda used to change the culture over decades. You start with academia. You give grants to academics and activists etc who promote racial diversity, racial integration, and who write books and other materials that make whites feel ashamed of slavery. Never mind that the 1860 census shows that only 1.5 percent of all americans owned slaves (and that you had to be well off to own a slave, in general). Nope. Capital used used its money to create white-guilt propaganda to change the culture, which all snowballed over decades and raised the social status of nonwhites. Nowadays, in many white schools, blacks are seen as the "cool kids" and are highly sought after as friends.

    The propaganda built in white guilt memes into well educated young people, and then those people went on the create the civil rights movement.

    So, now that battle has been won. And now Capital has little use for civil liberties. Well, maybe they have less use for them. Capital is still very interested of course in making sure immigrants of all colors and flavors are protected and feel comfortable coming here.


    Anyway, I know you don't understand. But that's just tough...

    “Anyway, I know you don’t understand. But that’s just tough…”

    Translation: I explain everything in social/political jargon like “Capital” and “Labor” straight out of the Marxist economic theory without definitions, knowing most won’t understand. But I don’t care, because I’m a pompous ass who doesn’t want to be coherent. People who are coherent can be proven to be wrong. I can’t because I can always claim you misunderstood me.

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  7. @mulp
    It says "no person" not "no citizen" so you are calling into question the whole concept of war even for defense. Are you prepared to say that invaders with guns must get due process of a court trial and capital judgement before they can be shot by defenders?

    In very few places does the Constitution use "citizen" because they saw no restrictions on who was welcome to the 13 States which they, the founders, hoped to expand to more States as the population increased from immigration, something they saw as necessary. However, these persons needed to be tested by citizens to be determined worthy of citizenship. Citizenship required a person meet the conditions set by Congress and by the State where they had lived for the required period.

    In the context of the Constitution as written, Anwar al-Awlaki would not qualify as a "citizen", but would have been merely a "person" no different than the persons Osama bin Laden or Adolf Hitler. Anwar al-Awlaki became a "citizen" in addition to a "person" by a failure of Republicans post Civil War to understand the Constitution's basic concept of citizen as having a role in governance: voting, holding office, etc.

    And today, many like Mr Van Buren totally misunderstand the scope of the Constitution's use of "person" and rights. Those "inalienable rights" are without limits to location. It is only the limits of the government of the People that is limited to the territory of the USA. A person does not lose rights because they are not a US citizen or not in the US, but the US Constitution does not project the power of due process outside the USA. And a US citizen is not "protected" by the US Constitution any more than a person outside the USA is, The US Constitution simply does not apply in France or Japan or Yemen. (Those in the Navy or Army or diplomatic corp are subject to the laws that gave them their official authority.)

    Why doesn’t the Constitution apply outside the US? It does. It applies to all US authorities. They can’t escape their oath by leaving the US. The Constitution is not an umbrella of legal protection. It is a list of duties, responsibilities, and prohibitions for US officials. It applies to them without exemption. The problem is, it gives the officials the power to be judge, prosecutor, and jury with regard to their oath. Consequently, they do not find themselves guilty, so punishment is never needed. They don’t charge themselves most of the time for clear violations. They are guilty in the court of public opinion but there is no remedy there, except the unthinkable abolition of this unlimited, irrational, unworkable system of government. It’s unthinkable because the public is brainwashed by public school indoctrination. They are unwitting slaves to their own enslavement.

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