The Day the 5th Amendment was Droned to Death

(By Peter van Buren via Tomdispatch)

Terrorism (ter-ror-ism; see also terror) n. 1. When a foreign organization kills an American for political reasons.

Justice (jus-tice) n. 1. When the United States Government uses a drone to kill an American for political reasons.

How’s that morning coffee treating you? Nice and warming? Mmmm.

While you’re savoring your cup o’ joe, imagine the president of the United States hunched over his own coffee, considering the murder of another American citizen. Now, if you were plotting to kill an American over coffee, you could end up in jail on a whole range of charges including — depending on the situation — terrorism. However, if the president’s doing the killing, it’s all nice and — let’s put those quote marks around it — “legal.” How do we know? We’re assured that the Justice Department tells him so.  And that’s justice enough in post-Constitutional America.

Through what seems to have been an Obama administration leak to the Associated Press, we recently learned that the president and his top officials believe a U.S. citizen — name unknown to us out here — probably somewhere in the tribal backlands of Pakistan, is reputedly planning attacks against Americans abroad. As a result, the White House has, for the last several months, been considering whether or not to assassinate him by drone without trial or due process.

Supposedly, the one thing that’s held up sending in the drones is the administration’s desire to make sure the kill is “legal.” (Those quotes again.)

Last May, Obama gave a speech on the subject.  It was, in part, a response to growing anger in Pakistan, Yemen, and elsewhere over the CIA’s ongoing drone assassination campaigns with all their “collateral damage,” and to the White House’s reported “kill list.” In it, he insisted that any target of the drones must pose “a continuing and imminent threat to the American people.” At the time, the White House also issued a fact sheet that stated: “Lethal force must only be used to prevent or stop attacks against U.S. persons, and even then, only when capture is not feasible and no other reasonable alternatives exist to address the threat effectively.” While that sounds like a pretty imposing set of hurdles to leap, all of the “legal” criteria are determined in secret by the White House with advice from the Justice Department, but with no oversight or accountability.

Even then, it turns out that the supposedly tortured deliberations of the administration are not really necessary. Despite the president’s criteria, according to an unnamed administration official quoted by the Associated Press, Obama could make an exception to his policy and authorize the CIA to strike on a one-time basis, no matter what the circumstances. One way or another, it is Obama who decides who to kill and when.

Short-Term Questions

At this point, it’s unclear just why the Obama administration leaked its plans in reference to this errant American abroad. After all, official after official has insisted that Edward Snowden’s revelations of secret NSA documents have caused terrorists to change their communication tactics, yet the one American up to no good somewhere in the terrorist world apparently has not done so in response to the leak about his potential fate, and will remain locatable whenever needed as a target. And yet giving notice of a possible attack in advance in the media would, on the face of it, seem both counterproductive and an invitation to the very barrage of criticisms leveled by key officials at Snowden. After all, under the circumstances, an American connected with al-Qaeda wouldn’t exactly have to be a Bond villain to decide to change his behavior and his location, stay indoors or outdoors more, keep off his phone for a while or trade it in for another.

Could the administration leak have been a trick to flush the bad guy out, causing him to panic and run? Was it an elaborate ruse designed to induce widespread concern in al-Qaeda about the liabilities of having American compatriots? Was it a bone thrown to Republicans otherwise eager to paint the president as weak? Could it have been some kind of geopolitical muscle tussle with once compliant but now more assertively anti-drone Pakistan? Or could the leak have been a PSYOP on the American people, an attempt to manipulate us into feeling better about government decisions to kill American citizens by revealing the deliberative and heart-wrenching process Obama goes through?  Or could it simply have been an attempt to normalize such acts for us, to make them part of the understandable everyday background noise of a dangerous world?

The answer is: we don’t know.  Not yet anyway.

Not the First Time

The Obama administration admits to killing four Americans as part of its war on (or is it “war of”?) terror. We’ll pause here a moment for you to contemplate whether there could have been other, undocumented killings of the same sort awaiting the revelations of some future Edward Snowden or Chelsea Manning.

On May 7, 2011, a U.S. drone fired a missile in Yemen aimed at American citizen and key terror suspect Anwar al-Awlaki. The missile blew up a car with two other people in it, quickly labeled “al-Qaeda operatives” after we killed them.

Such collateral killings should be no surprise. The inaugural article by Glenn Greenwald and Jeremy Scahill at their new media venture notes that the National Security Agency regularly identifies targets for CIA assassinations based on metadata analysis and cell-phone tracking. Rather than confirming that target’s identity, the CIA is evidently ready and willing to blow a suspect away based on the location of a mobile phone he assumedly is using. In other words, people can be killed because they borrowed the wrong cell phone. (So much for a deliberative process.)

The U.S. had tried to kill al-Awlaki before, including in the Bush years — and missed. In justifying one of these assassination attempts, Obama’s counterterrorism chief, Michael Leiter, claimed that al-Awlaki actually posed a bigger threat to the U.S. “homeland” than Osama bin Laden, albeit without explanation. No matter, they finally got their man.  A follow-up strike killed al-Awlaki, and another soon after obliterated his teenage son, also in Yemen. Though no one argues that the boy was in any way linked to terrorism and no administration official has bothered to explain just why he was targeted, former White House press secretary Robert Gibbs did comment that the killing was justified as he “should have had a more responsible father.”

Couldn’t Happen Here?

Though the president and his officials go to great pains to indicate that such assassinations are only going to happen abroad, there is nothing in the carefully worded distinctions made by the White House to preclude them at home. As a start, in his criteria for killing someone extrajudicially, the president claims there is no difference between an American citizen terrorist and a foreign terrorist. A careful look back at the statements of two government officials makes it clear that thought has already gone into the question of bringing the killings home.

Remember the testimony then-FBI Director Robert Mueller gave before a House subcommittee in 2012? When asked point-blank if the president could order the killing of an American in the United States, he replied “Uh, I’m not certain whether that was addressed or not… I’m going to defer that to others in the Department of Justice.” Mueller, of course, had the option of saying flat-out, “No, no, of course the president can’t order a hit on an American here in the U.S. where the full judicial system, Constitution, and due process protections exist! Are you mad?”

The truth emerged only in 2013 when Senator Rand Paul asked point-blank whether the president could authorize lethal force, such as a drone strike, against an American citizen in the United States. Attorney General Eric Holder fired back that while the question was “hypothetical,” the real-world answer was yes. Holder said he could imagine “an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the president to authorize the military to use lethal force within the territory of the United States.”

It’s easy enough, in fact, to imagine the sort of scenarios that might lend themselves to such an act: a ticking time bomb, a killer believed to have anthrax and on the loose, a suspected dirty-bomb maker in a desolate location, terrorists with a bus full of children on a mountain top. Imagine a slippery slope and… presto! You’re there.

They’ve thought about it. They’ve set up the legal manipulations necessary to justify it. The broad, open-ended criteria the president laid out for killing suspected terrorists exposes the post-Constitutional stance our government has already prepared for. All that’s left to do is pull the trigger.

Nostalgia for the Fifth Amendment

It’s still possible to remember, almost nostalgically, how the Fifth Amendment used to guarantee Americans due process. The key phrase was indeed that “due process.” It meant the government could not take away your property or imprison or execute you without first allowing you a chance to defend yourself. You would have your day in court with a lawyer and a jury of your peers to make the final decision. This would all be quite public and the people involved would be held accountable for their actions. The Fifth was meant by those who wrote it as a check on the ultimate in government excess: the purposeful taking of citizens’ lives. Today, it increasingly seems an artifact of a quaint past, as seemingly lost to history as the corded phone or manual typewriter.

Attorney General Eric Holder publicly rewrote the Fifth Amendment in 2012, declaring, in a veiled reference to al-Awlaki, “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, in a pinch, skip the courts.  In this way, Holder gave us a peak behind the White House curtain, making clear that the president’s personal and secret decision to kill an American, perhaps made over morning coffee, was, in his opinion, good enough to make everything legal.

The due process question Holder dismissed so casually still looms large over al-Awlaki’s murder. Prior to the killing, attorneys for his father tried to persuade a U.S. District Court to issue an injunction preventing the government from killing him in Yemen. A judge dismissed the case, ruling that the father did not have “standing” to sue and that government officials themselves were immune from lawsuits for actions carried out as part of their official duties.

This was the first time a father had sought to sue the U.S. government to prevent it from killing a son without trial. The judge did call the suit “unique and extraordinary,” but ultimately passed on getting involved.  He wrote instead that it was up to the elected branches of government, not the courts, to determine if the United States has the authority to extrajudicially murder its own citizens.

The judge’s position was revealing of our moment. The extrajudicial killing of an American citizen seemed to him to be nothing but a political question to be argued out in Congress and the White House, not something intimately woven into the founding documents of our nation. The judge was not alone in his characterization of the problem. Mike Rogers, chair of the House Intelligence Committee, complained that the killing of more terror suspects in a similar manner has been held back by “self-imposed red tape.”

There are, however, no footnotes in the Fifth Amendment, no caveats, no secret memos, no exceptions for terrorism, mass rape, child torture, or any other horror the U.S. has confronted in its 238 years of existence. Such addendums to the Fifth were unnecessary, because in the beautiful preciseness of Lincoln’s phrasing at Gettysburg, ours is “a government of the people, by the people, for the people,” one made up of us, beholden to us, and whose purpose is to serve us.

Such a government would be incapable of killing its own citizens without due care, debate, and open trial. Those actions would violate the sacred convent of trust between a people and their government in a democracy, the “consent of the governed,” and delegitimize the government itself.

That last point is worth a closer look, because it makes clear what murder-by-decree really represents in post-Constitutional America. The phrase “consent of the governed” first appears in the Declaration of Independence, the document by which the United States declared itself no longer under the governance of the British king. The Declaration makes clear that a government’s moral right to use state power is only justified and legal when derived from the people over which that power is exercised. Such consent is the opposite of the divine right of kings, the philosophy under which the British ruled colonial Americans.  Its foundational principle was obedience to government and its edicts and decisions, even on issues of life and death, as a religious and moral obligation.

Following the more philosophical Declaration of Independence, the Bill of Rights was a practical exercise written to address directly the specific injustices of rule by royal decree. By turning its back on key elements of our founding, Washington, it seems, has brought us full circle.

Life in Post-Constitutional America

These days in the pseudo-debates about drone killings in the mainstream media, such changes are treated as matters of no great significance. On the day that the president’s latest plans for the murder of a fellow citizen in the distant tribal backlands of Pakistan first appeared, they caused little stir. The headlines were instead dominated by Olympic gossip and an impending ice storm in Atlanta. Killings extrajudicially mandated by the White House? The Fifth Amendment?  Maybe if the target were Shaun White in Sochi, more people would have cared.

At the moment, we are threatened with a return to a pre-Constitutional situation that Americans would once have dismissed out of hand, a society in which the head of state can take a citizen’s life on his own say-so. If it’s the model for the building of post-Constitutional America, we’re in trouble. Indeed the stakes are high, whether we notice or not.

The question is: How far will post-Constitutional America stray from the nation so conceived in the Declaration of Independence and the Bill of Rights? Because in the twenty-first century, the midnight knock on the door may come not from the King’s men, but from the sky.

Peter Van Buren, a TomDispatch regular, blew the whistle on State Department waste and mismanagement during 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 TomDispatch regular, he writes about current events at his blog, We Meant Well. His next book is Ghosts of Tom Joad: A Story of the #99Percent.

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Copyright 2014 Peter Van Buren

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16 Responses

  1. It appears there may be another 5th Amendment sticky point in our State Security operations. If the NSA is extracting and collecting intellectual property and confidential business information like trade secrets and stuff, as appears to be the case, and even using it for corporate advantage to favored “interests,” at what point will the corporate lawyers who might otherwise wink at clubs being applied to plain old mortal citizens start to seek “just compensation” from “the government” that is taking their OMG PROPERTY without paying for it? That was one of the strong selling points for the Bill of Rights in the first instance — that property interests would be at least as well protected as those silly Rights of Man… Be fun to see one of the big European MIC corporations, or even one of our own heavy-hitting, Citizen-United corps, suing the US rulership for “taking” competitive information with considerable value without, that phrase again, “just compensation.” link to

  2. I’ve always regretted that the press corps did not ask Carney how exactly the teenager could have chosen his dad. What a repugnant bunch of thugs we have at the top.

    • The answer, Ms. Marshall, is that it is well known that Abdulrahman al-Awlaki was not the target of the drone attack. The target was an AQAP operative named Ibrahim al-Banna. The younger al-Awlaki was with al-Banna at the time of the drone strike. It was a case of being in the wrong place at the wrong time. The U.S. did not, repeat did not, target the younger al-Awlaki.

      • There’s that undocumented “it is well known” again — pops up conveniently when some disingenuous obfuscation is needed to be operative… Do I recall that Bill has chastised others for recourse to that crusty fraud?

        Did “the US” not KILL the younger al-Awliki? And the excuse is that he was riding in the wrong vehicle?

        • “Did “the US” not KILL the younger al-Awliki?”

          The point is he was not the target. He was with the target when the drone struck.

        • In international law, if a military operation is so reckless, and foreseeably so, that it kills civilian targets indiscriminately, that is a war crime.

  3. One more fun drone item: It appears that, like derivatives and other TBTF and vulture capitalist excesses, “civilian” drone use is beyond regulation and out of control. Even Bloomberg has noticed:

    “Runaway Drones Map Land, Film ‘Wolf,’ Knock Down People, as FAA Gives Chase “, link to Hey, some of these companies are publicly traded! A big Buy signal!

    I bet a few who comment here are old enough to remember “Breaker One-Nine, this hyar’s Long Dong — gotcher ears on? Smoky at yer 6!” “Citizens Band or CB radio, link to, — another Freedom ™ thing that got way past any efforts by the FCC to regulate. Supposed to be less restrictive than “ham” which required actually knowing how radios work and all the rules and Morse code and stuff. Supposed to be limited to 5 watts output for short-range near-line-of-sight communication, on a limited set of channels — pretty quickly the “bandits” figured out how to add linear amplifiers to boost that to hundreds of watts, add complicated antennas and start doing DXing, Ham-ese for long distance talk. The FCC could not begin to enforce their rules — kind of like the situation with guns, that other Freedom ™ thing.

    And now we have a neat Quadcopter with a machine pistol wired in: “Death from Above: Quadcopter Modified to Carry Machine Gun” link to

    Go spend some time looking at DoD and MIC websites for some of the other fascinating weapons that are just over the horizon… Stupid humans.

  4. However much I agree with Mr.Van Buren’s book and concerns for the trampling of constitutional rights, I should note that the Constitution does provide for Letters of Marque and Reprisal. The letter of marque authorizes arrest, while the letter of reprisal authorizes attack, apparently typically by a private armed vessel against a pirate ship. I don’t know of examples. Apparently these were to be issued by the executive not the judicial branch, in cases where there was no other practical means. It was a military attack short of war, and the target was limited, armed, and not likely to have innocents aboard. So perhaps the drone issue is more that such attacks are too poorly targeted, loosely authorized, and counterproductive. And I have never heard a mention of letters of reprisal by the admin, so they don’t care about the issue.

    But we are a post-Constitutional society. The greatest threat to the Constitution is the judiciary itself, which consists of right wingers who trumpet their defenses of rights whenever that coincides with their prejudices, and subvert them with profound dedication at all other times. The FISA court travesty shows their prejudices. They truly are half-wits who equate conformity with patriotism and expect to protect their wealthy compatriots with right wing connections and money, not a functioning judiciary.

    • Hi John — you need to at least look at the Wiki entry on Letters of Marque and Reprisal before conflating the arrogation of power that is the drone (and Special and Black Ops) machinery in our Imperial offices, with the issuance by a state or federal legislature (with the executive’s signature) of such bounty-hunters’ licenses. link to Maybe Bill could find some authority there for the killing of those comfortably named “Unlawful Enemy Combatants,” but not too many lawyers, maybe not even John Yoo (who scorns the Constitution anyway, as an unwarranted set of constraints on absolute executive power), would venture that opinion.

      The way we, the masses, become post-Constitutional is by letting the processes that demolish those rights and privileges and immunities that were written or interpreted into the Constitution run ahead unchallenged and unchecked. The right-wingers you name have figured out how to steal and convert the legitimacy conferred by elections into a medieval masquerade, entertaining and lavishly expensive and satisfying to the our-team-your-team roots in our limbic system but to put it mildly, unrepresentative. All consciously and openly done, with a smile and a sneer at our bovine lumpishness, as we busily slave to generate the REAL wealth that they have figured out how to Hoover up and leverage into power and grotesque self-pleasure, leaving us little but scraps…

      • I do not mean to conflate those, because of course the drone attacks are not on the high seas, not isolated forces, not the only means of response, not in response to crimes in the US, etc. I raise the issue because the argument is much closer to the Constitution, although not as presently used, and there may be some applications of drones that fit the intent of letters of reprisal. The online definitions I see are consistent but some assume that there is only a “letter of marque and reprisal” rather than two types. My source is recollection of Morison’s account in the Oxford History of the American People, but I welcome any other sources.

      • I enjoyed your unsparing comments on the empire, though. I’m no fan of drones, having turned down a contract to do some early research on their communications, due to concern about insufficient maturity and intelligence in the national leadership to have more weaponry.

  5. I am surprised to find no commentary on the lack of war powers for drone attacks. The Constitution does not empower the USG to conduct foreign wars at all, only to repel invasions and suppress insurrections. Only a ratified treaty can do that, as part of the supreme law alongside the Constitution. The founders were strongly opposed to foreign wars, and the construction of warships was not authorized until threats to shipping emerged. Perhaps there are legal backdoors via NATO or other treaties, but secret executive arrangements with governments of target areas do not qualify. Without a strong constitutional basis for war powers, impeachment should ensue.

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