Fun with the lexicon

President Donny has done a lot of highly questionable things but, at least according to the Constitution, treason is not one of them.

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

Let's break it down, shall we.

According to the definition of treason found in Article III, Section 3, one commits treason if one levies war against the US. Levy means to "enlist someone for military service." In other words, to levy war against the US would be to raise troops to fight against the US. Thus, everyone involved with the secessionist movement and the Confederate government committed treason.

The next part of the definition is "adhering to their enemies." Adhere means "to believe in and follow the practices of."  Enemy means "a hostile nation or its armed forces...especially in time of war."

The first thing we need to look at is whether Russia is a hostile nation. From 1945 until the collapse of the Soviet Union in 1989, the Soviets were considered an enemy of the US. They were considered an enemy because they stood for the destruction of capitalism. Let's make no bones about this - the Cold War was never about expanding freedom or democracy or any of the other things our government told us. The Cold War was about making the world "safe" for capitalism.

During the Cold War era the US overthrew, orchestrated the overthrow of or funded the overthrow of countless democratically elected governments that espoused socialist ideas.

Since the fall of the Soviet Union, Russia has been as much of an ally as anything else. Sure, the Russian government flexes its muscle at times when dealing with some of its former allied states and republics (but just look at US foreign policy in Central America)., but both states are for the expansion of capitalism.

Aside from that, the US and Russia are not at war with one another. The US and Russia are not in a state of armed conflict with each other. I know we like to throw the word war around like its cheap candy, but there is nothing resembling armed conflict between our nations.

So, before we throw around terms like treason, maybe we should make sure we know what that term means. Otherwise it makes you look like a raving lunatic. Donald Trump is a lot of things, but traitor isn't one of them.

The bankruptcy of ideas

President Trump's nominee to the Supreme Court, Neil Gorsuch is a real throwback. Really a throwback.

He is a self-described "originalist" when it comes to interpreting the Constitution. In other words, in Mr. Gorsuch's reality, the words and phrases in the Constitution mean just what they meant back in the late 18th century.

Let's see. Back in the 1780's slavery was legal in the United States. Women didn't have the right to vote. There were no cars, there were no computers. The United States was a rural agrarian society. There was also a belief back in the early days of the Republic that the Bill of Rights only applied to the federal government - not to the individual states. There was also no such thing as judicial review by the Supreme Court until Chief Justice John Marshall went looking for a justification for his ruling in Marbury v. Madison and created it out of whole cloth.

Does this mean that a Justice Gorsuch would hold any warrantless search to be unconsitutional? Would he find that the NSA's data dumps to be illegal since computers weren't something contemplated by the Founding Fathers? Will warrentless searches of cars go away since there wasn't such a thing back in George Washington's days?

Will we return to the 18th century notion of an arrest instead of looking for any way possible to not call an arrest an arrest in order to keep evidence admissible?

Will the ruling in Citizen's United be cast upon the ash heap of history since the notion of the corporate person did not exist in 1789? And what about this quaint notion that campaign contributions are a form of free speech?

Does Mr. Gorsuch believe that every armed conflict the United States has entered since the end of World War II was illegal since there was no declaration of war from Congress?

Mr. Gorsuch's self-proclaimed judicial philosophy is completely vapid. It is but a fig leaf to cover a naked attempt to turn back constitutional protections of the accused, minorities and women. Now, as much as I disliked Antonin Scalia, he made some rulings in 4th Amendment cases that protected the rights of the accused. Of course those rulings were a small counterpoint to his rulings that favored the rights of the powerful over the rights of the powerless.

This bankrupt philosophy isn't a philosophy at all. It is merely a justification to carry out a libertarian agenda that will seek to unleash capitalism at its worst.

Two sides of the same coin

For the past couple of weeks about all we've heard from the presidential campaign are attacks on the personality and temperment of the candidates. There have been few mentions of actual policy differences (with the notable exception of immigration). Why is that?

I would posit that it's because there isn't a dime's worth of difference between Hillary Clinton and Donald Trump. While they speak in generalities about economic, foreign and social policy, neither of them is going to challenge the basic tenets upon which American capitalism rests. Neither one of them is willing (or able) to acknowledge that we must rethink what passes for an energy policy. Drilling more holes in the ground will only make matters worse when it comes to the climate and our sustainability on this planet.

Neither candidate is going to change our petroleum driven foreign policy. Neither one is going to abandon autocrats and and dictators who either do our bidding or from whom we are dependent upon for resources (be they oil fields, minerals or landing rights).

Both candidates are beholden to the corporate ruling class - Clinton because she is dependent upon their campaign dollars and Trump because he is one of them.

Both candidates will sit and watch as our protections under the Fourth, Fifth and Sixth Amendments are watered down even further in the name of keeping the streets safe.

Oh, wait, you say. Now you're talking about the Supreme Court - there's where a difference exists between the candidates. Clinton will appoint judges who are left of center and Trump will appoint judges who are on the right. Those choices will affect jurisprudence for a long time to come.

Or will they?

The change in the composition of the court has done nothing to stop the constant erosion of the Fourth Amendment. The fact remains that bad facts make bad law. Most of the decisions that helped to eviscerate the Fourth Amendment were on cases in which the defendant had either done something really bad or had a lot of bad stuff in his possession. Lower courts (in which judges face the voters) will bend over backwards not to throw out the conviction. And, by the time the matter gets before the Supreme Court, the justices can find almost any justification for further restricting our rights.

And then there is the nagging little fact that what is constitutional or not is determined by the votes of nine men and women who attended Ivy League law schools and have little (or no) experience working in the trenches. What is a constitutional protection today could be gone tomorrow and put back in place a year from now. Let us also not forget that no one party is going to control 2/3 of the Senate. That means anyone who is nominated is going to go through a grueling process (and, by the way, the same holds true for other federal judicial appointments).

Let's not give in to the fear-mongering from both sides. The republic will not collapse upon the election of either Clinton or Trump. The Constitution will remain a document upon which a group of fallible men and women decide what the government can and cannot do.

Don't settle for the candidates being sold to us by the ideologically and morally bankrupt major parties. Go out on election day and vote your conscience. A vote cast for one candidate in order to prevent the other one from winning is a tacit surrender to a corrupt corporate system.

Don't wave the white flag in November.

It's okay because I said it's okay

First forget about all the niceties we've come to appreciate. I'm talking about the Due Process Clause, the right to trial by jury and the Sixth Commandment ("Thou shalt not kill."). Because under President Barack Obama, they aren't worth the paper (or stone tablet) they're printed on. At least not when it comes to killing US citizens abroad.

NBC News got their hands on the white paper issued by the Department of Justice that serves to rationalize the "targeted" killing of US citizens abroad in our ongoing War on Everything Terrorism.

According to the white paper (apologies for NBC feeling the need to plaster its watermark all over the paper rendering parts of it illegible), there are three factors that must be considered when determining whether it's okay for our government to kill one of its citizens abroad. The killing will be considered legal if (1) a government official decides that the targeted individual poses "an imminent threat of violent attack" against the US; (2) a government official decides that it isn't feasible to capture the targeted individual; and (3) the killing follows generally accepted wartime practices.

In other words, the US government can order the killing of a US citizen abroad it the government damn well feels like it. What else could it mean? Government officials get to decide if the target is an imminent threat and if it would be too much work to try to capture him alive.

Anyone else see the problem there?

According to the paper there's no due process implications involved because the nine in robes have proclaimed that ones due process rights are subject to a balancing test. And, as anyone who has ever reviewed balancing tests knows, they are nothing more than a justification for the government to infringe upon the rights of an individual.

One either has due process rights or one doesn't. Ones due process rights either are enforced or they aren't. Either the government is sanctioned for violating them or it isn't. A balancing tests makes black letter law all murky, mushy and grey.

And, lest someone bring up the ban on government-sponsored political assassinations, just forget about it right now. You see, the author(s) of the paper have declared that the targeted killing of a US citizen allegedly working for the enemy isn't the same as an assassination. There's that whole war thing going on.

But, not exactly.

Those pesky little al-Qaeda boys aren't exactly a nation. There has never been a formal declaration of war against al-Qaeda - mainly because there's no nation to declare war against. So, if there is no declared war against al-Qaeda, then the targeted killing of a US citizen working with, or for, al-Qaeda isn't an act of war. It is, instead, the killing of a person for political purposes. Oops. That sounds a lot like an assassination to me.

I suppose one could argue that killing a US citizen who has taken up arms on the side of the Iraqis would be different, as would the same scenario taking place in Afghanistan. But that's not where the US government has targeted its own citizens for killing. Those strikes took place in Yemen - and the last time I checked, Congress never declared war on Yemen.

Of course that argument will never do. So, the paper argues that our government's fight with al-Qaeda is analogous to war. It's not our fault, after all, that they aren't a nation-state, is it? Thus the Obama Administration argues that it is justified in killing US citizens anywhere they may be abroad - even if there is no armed conflict going on in that nation.

Our government gets away with this because we allow it to happen. We have stood by and watched as state and federal governments have whittled away at our once sacrosanct Constitutional rights. They weren't taking away our rights, we told ourselves - they were just taking away the rights of those criminals. Now President Obama has decided that he has the right to suspend the Constitution when it comes to killing US citizens abroad. But we're talking about terrorists, you say.

Maybe, but the rights that protect him are the same rights that protect the rest of us. The Constitution divided the powers of government among three branches. It's not the job of the executive to determine whether a US citizen is guilty of treason - that's the role of the courts. In usurping the powers of the judicial branch to suit his political aims, President Obama has violated his oath of office.

Will anyone tell the emperor he has no clothes?

Worth the paper it's printed on

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. -- 2nd Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. -- 4th Amendment

For the most ardent gun rights advocates out there, the language of the 2nd Amendment is sacrosanct. Of course the qualifying clause before the comma is often brushed off as if it didn't exist.

We look back now at the Constitution and Bill of Rights as the great blueprints of our nation. At the time the Constitution was adopted, however, there were a multitude of voices arguing that the plan laid out in that document would only serve to enslave farmers and other agrarian interests. That's why we have two house of Congress - one represented the voice of the people and other represented the voice of the states. It's the reason the Electoral College was created - to ensure that the voters of just a few of the larger states could dictate who served as president. (The irony, of course, is that we have just the opposite situation today where the voters of a few states hold the rest of the nation hostage on Election Day.)

The agrarian interests were not in favor of a strong centralized government. They believed that only favored the monied interests in the larger states. One thing they really feared was the creation of a federal army. The 2nd Amendment was designed to sway those critics by leaving the defense of the republic to the state militias.

And, in order to have state militias capable of defending the republic against an expected attack from the English, folks needed to have guns.

Now that we have a professional army, the original rationale for the 2nd Amendment no longer exists.

If one wants to argue that the words of the 2nd Amendment are absolute, I can only show you the words in the 4th Amendment as proof that nothing in the Bill of Rights is absolute.

The 4th Amendment, despite its clear prohibition against unreasonable search and seizure and the warrant requirement has been honored far more in the breach than in the observance over the history of the republic. Most of the "reinterpretation" of the 4th Amendment has been the result of judges seeing cases in which someone either did something bad or had something bad and, but for a warrantless search, would have gotten away. Supreme Court justices, instead of reading the 4th Amendment and applying its words, adopted a results-oriented approach and looked for ways to get around the warrant requirement.

Over the years the Court has redefined "persons, houses, papers and effects" and created a mythical "reasonable expectation of privacy" test out of whole cloth. Courts have redefined "searches" and "seizures" in such a way that a person can be handcuffed in the back of a police car and not be considered seized and a pat down for weapons isn't considered a search. The word "unreasonable" has apparently been deleted from the English language and probable cause has become so watered down that stops are justified because an officer thinks someone may have violated the law.

Once upon a time we had a right to be left alone by the state, today you can get tased if you don't stop to answer questions. 

Maybe it helps that gun holders and makers have a very powerful lobby behind them with lots of money to throw around while victims of warrantless searches tend to be convicted criminals without a lot of cash.

That's the way the wild wind blows

Apparently the wind's been blowing extra hard out on the West Texas plains this summer. At least that's the only logical explanation I can come up with for the remarks made by Lubbock County Judge Tom Head.

It seems that Mr. Head is asking county commissioners for a tax increase to cover the additional expenses he expects the county to incur as a result of the insurrection that will follow should President Obama be re-elected in November.

Yes. You read that right. A local official in Lubbock, Texas has declared that the re-election of the president will spark a civil war.

“I'm thinking the worst. Civil unrest, civil disobedience, civil war maybe. And we're not just talking a few riots here and demonstrations, we're talking Lexington, Concord, take up arms and get rid of the guy." -- Lubbock County Judge Tom Head

Mr. Head thinks that Mr. Obama is planning to cede sovereignty over the United States to the United Nations. And when those blue-helmeted UN soldiers come a-knocking in Lubbock, Mr. Head will be on the other side of his rifle defending the dusty plains. Oh, and did I fail to mention that the county sheriff is on board with this, too?

Maybe that's just what a crazy-ass wingnut has to do in order to justify asking for a tax increase. Maybe those teabaggers and tin foil hat-wearing nutjobs are just flat out opposed to tax money being used for anything other than arming the military and the police.

Now I'm fairly certain that in the next day or two we'll hear that Mr. Head either misspoke, used the wrong word or was misquoted and that he didn't mean to imply that a vote for Mr. Obama was a vote for civil war. Or, maybe he'll be honest and admit that he's a complete nutjob and that watching tumbleweeds blow down Main Street all summer long was just a little too much for his sanity.

The absolute absurdity of the statement is demonstrated by the peaceful handing over of power that has taken place in this country ever since John Adams became president. The only time that the election of a president has spurred a civil war was when Abraham Lincoln was elected in 1860 - but that was in a day when there were two very distinct regions of the country and two very distinct economic systems at play.

Mr. Head's comments are shameful. Luckily the term "county judge" in Texas refers to the presiding member of commissioner's court - the bodies that govern each of Texas' 254 counties. There are a few instances, however, in which the county judge serves as the presiding judge of a county's Constitutional Court (luckily those instances are few and very far between).

Interestingly enough, Mr. Head doesn't tell us who the opposing sides are in his imagined civil war. It certainly sounds a lot like the apocalyptic warnings we hear from the far right and white power groups when they talk about the coming race war.

Our system of government didn't collapse when Ronald Reagan took office. It didn't collapse when Bill Clinton took office. It didn't collapse when George W. Bush won the presidency and it didn't collapse when Barack Obama was elected president. We have our differences and we have forums for expressing those differences.

If Mr. Head had any integrity, he'd step down. But, because he's a politician, he won't.

Judge, jury and executioner

The Obama administration's assault on the Bill of Rights - and the Constitution - continued yesterday when the government conceded to a federal judge that it was limiting the access defense attorneys had to their clients being held at Guantanamo Bay. The government told the judge that military and intelligence officials would have control over who had access to the detainees. Furthermore, the government told a judge that since the detainees were being held at a military base, the executive branch would hold the key to the jail, not the judiciary.

According to Lyle Denniston in yesterday's SCOTUSblog:

Since the Supreme Court’s 2008 decision in Boumediene v. Bush,  guaranteeing Guantanamo prisoners a right to go to court to test their detention, the issue of lawyers’ access has been within the control of federal District judges in Washington.  Under the new regime that began to be unveiled this summer, the Administration intends to shift that process entirely to the military and government intelligence agencies. The commander of the Naval base at Guantanamo is to gain full veto power, beyond review, over the access question, and the intelligence agencies would have the final veto power over access to classified information — even if that information comes from the detainees themselves. 

If this is upheld by Chief Judge Royce C. Lamberth after his review, lawyers for detainees will have to agree to the new limits as a condition for any access to their clients or to classified data.  So far, some of the lawyers have agreed, but others are resisting, and are asking Judge Lamberth to keep control over the issue within the District Court under orders that have been in effect for the past four years. 

The new regime is designed, Monday’s new government filing made clear, to give the military firm new control over the military base that is located on the island of Cuba.  The new document repeatedly stressed the military character of Guantanamo, and said its day-to-day functioning must remain within Executive Branch control.  There are now 168 detainees in the military prison there, most of whom are not facing prosecution for any crime. Also held there, though, are what the government calls “high-value detainees,” including the five individuals who are facing military commission trials for planning the terrorist attacks of September 11, 2001.

So there you have it. Our government has been holding these men for years without being charged and without any meaningful contact with an attorney. All in the name of keeping us safe.

Everything our government does to limit, restrict and infringe upon our fundamental rights is preceded either by "it's a dangerous world" and "the need for security." Yet every time no stands up to the government to challenge its decree, those things that make us unique are slowly ground into dust.

And if this is what a supposedly liberal administration is willing to do, just imagine what a law-and-order loving conservative (reactionary?) administration would do. Never forget that the right's calls for limited government only refer to the ability of the government to tax the rich, regulate the corporations and provide a safety net. The right has never had an issue with increasing the government's power to intrude upon the private lives of its citizens or residents.

When President Obama took the oath of office on January 20, 2009, he promised to defend the Constitution and to uphold the laws of the Untied States. His record, however, when it comes to Guantanamo Bay, detainees, secret foreign prisons, torture and the murder of suspected terrorists is nothing short of shameful.

How is he going to answer his daughters when they asked him why he authorized our government to torture suspected terrorists in secret prisons around the world? How is he going to answer his daughters when they ask him about his decisions to kill American citizens without affording them the right to due process? How is he going to answer his daughters when they ask him about how he ignored the Constitution and Bill of Rights?

Undermining the rule of law

The United States Constitution makes very little mention of citizens. It mandates that our elected representatives be citizens and that the President and Vice President are citizens, but beyond stating that all "other persons" counted as 3/5 of a citizen.

The blueprint of our representative democracy states, in Article I, Section 9, that:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

One of the biggest fears of the Founding Fathers was the suspension of the Great Writ. There is no mention anywhere in the Constitution that only citizens of the United States are entitled to use a writ of habeas corpus to get into court. Anyone held in any county jail or state prison can file the writ to get his day in court (unless of course the government has decided they want to kill you and restrict your time to file the writ to one year).

The only time the Great Writ was suspended was during the Civil War when President Lincoln suspended it due to the rebellion.

But on Monday the US Supreme Court effectively suspended the writ for anyone held as a so-called enemy combatant in our government's War on the Constitution Terrorism. As Scott Greenfield reminds us, back in 2008, the men (and woman) in black ruled that the detainees in Guantanamo were entitled to the use of the writ to get their day in court.

Those who had been held without being charged lined up and filed. Trial courts granted the writs and ruled, in many cases, that the detainees were being held illegally. One of those detainees was an American citizen, Jose Padilla, who was held in a US Navy brig in Charleston, South Carolina.

While trial courts were issuing rulings upholding the rule of law, the DC Court of Appeals was doing its best to slice and dice the Constitution. Every case that the government appealed was reversed by the appellate court and the standards that a detainee would have to meet to gain his release were raised to a level no one could achieve.

And when the Supremes had their chance to let the appellate court know that it meant what it said, they punted. One could argue that no one's right to file the Great Writ has been suspended - only that the bar for relief has been raised higher for those whom the government says are the bad guys. But, when the raising of the bar effectively denies each and every detainee of their right to review, the right to file the Great Writ has been suspended.

And the Supreme Court is more than happy to sit back and allow the most conservative appellate court in the nation to thumb its nose at it. The Supremes could have but some teeth into their earlier decision, but why bother? It's not like anyone's marching in the streets demanding that the detainees get their right to review. It's not like anyone's going out on a limb arguing that our national principles demand that these men be released from illegal detention.

No one's going to take up the flag of their cause. And that's exactly what the rule of law is supposed to protect - the rights of the unpopular.

Guilty, as charged

Our Constitution provides that anyone accused of a crime will be afforded due process of law (now that's a moving target). That means the accused will be informed of the charges against him. The accused will have the right to counsel. The accused will have the right to confront the evidence and the witnesses against him. The accused will have the right to put on evidence on his behalf. The accused will have the right to remain silent. The accused will have the right to have his fate determined by a jury of his peers.

As the presidential campaign heats up, President Obama is doing his best to show that he is tough on terrorism. He is doing his best to thwart Republican allegations that he is weak on foreign policy. In recent weeks the White House has revealed the method by which it is determined who in the Middle East will die by remote control. First we find out that John Brennan is making decisions on who lives and who dies. Now we find out that the President of the United States is playing judge, jury and executioner.

According to an article in the New York Times:

It was not a theoretical question: Mr. Obama has placed himself at the helm of a top secret “nominations” process to designate terrorists for kill or capture, of which the capture part has become largely theoretical. He had vowed to align the fight against Al Qaeda with American values; the chart, introducing people whose deaths he might soon be asked to order, underscored just what a moral and legal conundrum this could be.

There it is. President Obama is taking responsibility for placing names on the death list. Mr. Obama is a lawyer and certainly he is aware of the law of parties. According to the law on parties, every person who participates in a conspiracy to commit murder, or every person who participates in a murder, regardless of how small the contribution, may be held accountable for the murder.

The Lone Star State doesn't care if you pulled the trigger or just drove the car. They'll kill you just the same. In fact, the driver often gets the worse end of the deal when the actual killer cops a plea and rats out everyone else involved.

The United States has used drones to murder people in Afghanistan, Pakistan and Yemen during the Obama presidency. Those murders were committed without affording due process to those accused of being terrorists. Those murders were committed without evidence being presented in a court of law. Those murders were committed without the unanimous verdict of twelve citizens.

The government and the media like to use the term "extra-judicial killings" instead of calling the murders what they are. But, by accepting responsibility for deciding who needs killing, President Obama is accepting responsibility for the murders of innocent people - including three Americans.

They describe a paradoxical leader who shunned the legislative deal-making required to close the detention facility at Guantánamo Bay in Cuba, but approves lethal action without hand-wringing. While he was adamant about narrowing the fight and improving relations with the Muslim world, he has followed the metastasizing enemy into new and dangerous lands. When he applies his lawyering skills to counterterrorism, it is usually to enable, not constrain, his ferocious campaign against Al Qaeda — even when it comes to killing an American cleric in Yemen, a decision that Mr.

Obama told colleagues was “an easy one.”

President Obama has admitted culpability for the murders. He has violated the Constitution in at least three instances. He is guilty of depriving three American citizens of their due process rights. That, my friends, is far more worse than a "high crime" or misdemeanor.

I wouldn't shed a tear if one day Barack Obama finds himself in the dock at the International Criminal Court at The Hague charged with crimes against humanity for his actions in his War on the Constitution Terrorism. But I won't hold my breath. After all, the only folks who find themselves on the wrong side of the "v" are those who lost, are weak or out of power. Crimes against humanity are those things that They do; we are just defending freedom (read: tyranny).

Barack Obama should be charged with murder. His actions violated the sovereignty of Pakistan and Yemen. His actions have led to the deaths of women and children. He shows no remorse for his actions. But who will avenge those deaths? Who will take up the torch for the Rule of Law?

The man with his finger on the button

Well so much for all that checks and balances nonsense. Not to mention all that talk of separation of powers. The Obama White House has decided to dispense with any semblance to due process (even lip service) when it comes to the extra-judicial killing of alleged terrorists.

And, while we're at it, who came up with the term "extra-judicial killing?" Why don't we just call it what it is - murder.

John Brennan is the man with his finger on the fire button of the drones. He is the man who decides who goes on the hit list and who is targeted to be murdered. Without having to go through the layers of bureaucracy at the Pentagon, the CIA and the Joint Chiefs of Staff, the killing machine can be operated much more efficiently - and with even fewer checks on its power.

In war the commanders in the field decide where to fire and with what force. If the leader of a supposed terrorist cell is in the way, then so be it. Not that killing people is ever going to engender the warm and fuzzy feelings that proponents of the counter-insurgency movement are looking for, but, killing is, after all, part of war.

What the Obama Administration is doing is not part and parcel of war. War can only be declared by Congress against another country or army. The drone attacks are being carried out against those that los federales have decided - absent a finding of guilt - are either terrorists or people providing material support for terrorists.

When did we cede the authority to decide who lives and who dies to an unelected bureaucrat in Washington? Where in the Constitution does it give an unelected official the authority to sentence a man to death without his ever being indicted?

President Obama wants you to think that he's tough on terrorism and will continue to fight the War on the Constitution Terrorism with passion so that you'll vote to return him to office this fall. But what the president is doing doesn't mean that he's going to be tough on the bad guys - it means that he will disregard the Constitution whenever it suits his purposes. And, in that regard, he's no different than the man who preceded him in the White House.

On January 20, 2009, President Obama took an oath to defend the Constitution and the laws of the United States; what he is doing with regard to the murder-by-drone program is a direct attack on that document.

Happy Birthday, Guantanamo

Where were you ten years ago? What were you doing? Who were you hanging out with? What changes in your life have you seen over the last ten years? Who's died? Who's been born?

Think back to January 2002.

That's when President Bush opened Guantanamo Bay in Cuba as a prison for detainees in the War Against Something Terror. That's when he decided to hold those detainees indefinitely without charges, without bail, without trial.

That's when President Bush said fuck the Constitution. And that's when our representatives and senators in Washington forgot all about that oath everyone took to uphold the laws of the United States.

Sure, it's a dangerous world out there. We all know that. But it's been a dangerous fucking world ever since man first decided to walk upright and venture out of caves.

It was a dangerous world long before 9/11. A good deal of that danger we brought about ourselves by meddling in the affairs of other countries.

Just how safer do you feel knowing that your government has been holding people in prison for a decade without ever bringing them to court? Without ever presenting the evidence it claims to hold against them?

Constantly changing security alerts. Scope and grope at the airport. War in Afghanistan. Feeling safer yet?

So, happy birthday, Guantanamo.

On secret prisons and shredding the Constitution

It would appear that the CIA has been operating a secret prison in Bucharest since the days of the Shrub administration.

The prison was used to hold and torture people suspected of terrorism. After the discovery of the basement prison, both US and Romanian officials denied its existence.

Is this what we have become? The US is supposed to be a place where the rule of law is supreme. A place where the Constitution and the Bill of Rights sets limits on what the government can and cannot do. A place where all men are equally presumed innocent before a jury.

But, in the name of security, our government has subverted the Constitution and has declared that the needs of the state outweigh the rights of the individual. Secret prisons. Indefinite detention. Military tribunals.

Is nobody willing to stand up in defense of the Constitution?

The only purpose of having secret prisons is to deny suspects the rights afforded to all of us. You don't need an attorney - all you need is a towel over your head and a steady stream of water. So fucking what if the use of torture against prisoners is outlawed - who the hell knows anyone's there?

I'm fairly certain that a good chunk of the populace doesn't care. They're terrorists - who cares what happens to them. Far too many people buy into the national security state. Far too many people are willing to cede their civil liberties for the illusory promise that the government can keep us safe.

The existence of these secret prisons should bother you. Hell, it should infuriate you. Our government has taken what's left of the Bill of Rights and run it through the shredder. When our government authorizes the torture of an inmate or a detainee or a terrorism suspect (whatever words you wish to use), our government is authorizing the use of torture against you and against me.

Our democracy is only as strong as the laws that constrain the absolute power of the state. There is no check on that power when the government operates in secret. There is no check on that power when the existence of a prison is hidden and denied.

If you don't stand up and demand that our government respect the rule of law, then who's going to stand up when they come for you?

Shhh! It's a secret

Naturally the very existence of the document is a national security secret (or at least a pinkie-swear secret) - but what you expect when the document in question is used to justify the murder of an American by his own government?

Jeff Gamso had the right idea this past Sunday. Reading about the memo and what may, or may not, be contained within is the equivalent of one of those friend of a friend stories that Jan Harold Brunvand collected in his quest for urban legends.  

The memo, written last year, followed months of extensive interagency deliberations and offers a glimpse into the legal debate that led to one of the most significant decisions made by President Obama — to move ahead with the killing of an American citizen without a trial.

The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.

The Obama administration has refused to acknowledge or discuss its role in the drone strike that killed Mr. Awlaki last month and that technically remains a covert operation. The government has also resisted growing calls that it provide a detailed public explanation of why officials deemed it lawful to kill an American citizen, setting a precedent that scholars, rights activists and others say has raised concerns about the rule of law and civil liberties.

President Obama wasted no opportunity to claim credit for the killing of Mr. Awlaki (al-Zawahri in the original article) when he thought it might get him support for his upcoming re-election bid. But, once the criticism began rolling in, President Obama and his minions circled their wagons. And now we have this secret memo (that supposedly exists) written for the express purpose of justifying state-sponsored murder.

The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.

See, that's all you need to know. Our intelligence agencies said so - therefore it must be the truth. Because he said some bad things and because some people did some bad things we must kill him. We must ignore the Constitution in order to protect ourselves.

Or some line of garbage like that. We live in a society in which a great number of folks don't believe anything the government tells them. President Obama could tell everyone today is Wednesday and there will be a segment of the population convinced he is lying. Yet these same folks have no problem believing the government after it orders the killing of an American citizen.

But, if I were the president, maybe I'd rather deal with the muted backlash after ordering a hit on an American citizen rather than questions about how poorly the economy is performing.

Death without due process

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. -- 5th Amendment

The United States has killed two of its own. On Friday, under orders from President Obama, a US military airstrike resulted in the death of Ayman al-Zawahri, an American-born cleric who had become a vocal critic of US policy. Killed alongside Mr. al-Zawahri was Samir Khan.

In July, U.S. Defense Secretary Leon Panetta said al-Awlaki was a priority target alongside Ayman al-Zawahri, bin Laden's successor as the terror network's leader.

The Yemeni-American had been in the U.S. crosshairs since his killing was approved by President Barack Obama in April 2010 — making him the first American placed on the CIA "kill or capture" list. At least twice, airstrikes were called in on locations in Yemen where al-Awlaki was suspected of being, but he wasn't harmed.

Mr. al-Zawahri and Mr. Khan weren't arrested for anything. They weren't charged with anything. They were never indicted. They were never tried before a jury of his peers. They were never convicted of any crime against the United States.

There was no due process of law. Mr. al-Zawahri and Mr. Khan, were deprived of their most basic rights because they dared to voice criticism of US policy in the Middle East.

President Bush (the Younger) created a shitstorm when he ordered suspected terrorists and their supporters to be held indefinitely in prison. People were also up in arms (at least those who knew what was going on) about the expanded powers given to the government to spy on its own citizens. But neither of those policies holds a candle to ordering the death of American citizens without affording them due process of law.

As flawed as the Troy Davis situation may have been, at least he was afforded his day in court. That's more than Mr. al-Zawahri and Mr. Khan were given. If los federales had the goods on Mr. al-Zawahri and Mr. Khan, why not obtain an indictment? Why not seek to extradite them? Why not put them on trial? If their deeds were serious enough to warrant death - then let's see the evidence. What are you afraid of, President Obama?

Is it because their "crimes" involved being vocal critics of your foreign policy? Is it because of the words they spoke and wrote?

Thus far President Obama has caught flak for the state of the economy on his watch. Now it's time he catches it for ordering the deaths of two American citizens and depriving them of their constitutional rights. When President Obama was sworn into office, he took an oath to defend the US Constitution.



President Obama, you just violated that oath. You were not only part of a conspiracy to deprive two American citizens of their constitutional protections - you were the man in charge of the conspiracy. In depriving them of their constitutional rights, you also conspired to murder the two men.

See also:

"Ron Paul calls US killing of American-born al-Qaida cleric in Yemen an 'assassination.'" Washington Post (Sept. 30, 2011)

"Obama praises al-Awlaki killing," Time (Sept. 30, 2011)

Got Jesus?

Would you rather sit on a pew or sit in jail?

That's the choice being offered in the town of Bay Minette, Alabama for those accused of non-violent misdemeanors (let's forget, for a minute, the absurdity of putting someone convicted of a non-violent misdemeanor in jail). In exchange for attending church on a weekly basis, a defendant can have his or her case dismissed.

I thought Judge Clinton here in Houston had a goofy idea when he offered to reduce community service hours in exchange for reading a Christian how-to book. That was nothing.

The police chief sees nothing odd about the program. He doesn't think it violates the First Amendment because no one is forcing folks to take part and participants can pick the church of their choice. He thinks it's a good idea. And it saves the city the $75 it would cost to house an inmate per day.

I'm all for alternative methods of sentencing and rehabilitating folks. Just locking them up in the county jail (or the state pen) ain't working. Giving someone an alternative to their destructive behavior can't help being a step in the right direction.

But church? Religion has been used for centuries as a tool of manipulating the masses. Tell people that their lives aren't going well because God isn't happy is a masterful way to getting them to tune out the inequities in our daily lives and not question authority. Religion has been used to justify murder, homophobia and sexual abuse.

The charlatans who parade in front of the television cameras live high on the hog as they press their congregants to give up more and more of their hard-earned income because "God will give it back ten-fold!" Just look who's living in the McMansion an driving the Mercedes.

And what about that whole First Amendment thing? You know, the little provision that Congress shall make no law respecting the establishment of a religion. The Fourteenth Amendment applied those prohibitions to the states.

Offering to dismiss a case if a person attends church every week for a year discriminates against non-Christians and athiests. It violates the very spirit of equal protection under the law. Enacting such a policy confers additional benefits on those who share the religious belief of the judge.

Is the city getting a cut of the tithes?

US Constitution ratified 223 years ago today

And speaking of the Constitution...

On this date in 1788, New Hampshire became the ninth state to ratify the U.S. Constitution which, per Article VII, made the new blueprint for governing the country binding.

After being ratified by eight states, the fight for the Constitution became bogged down as delegates in New Hampshire and Virginia were split down the middle and delegates in New York were solidly against ratification. The so-called "Massachusetts Compromise" carried the day in New Hampshire.

The compromise was to ratify the Constitution now and amend it later.

The rest, as they say, is history.

Continuing down that slippery slope

On the morning of September 11, 2001, a total of 2,977 folks lost their lives in the terrorist attacks that felled the World Trade Center and damaged the Pentagon. The 19 men who carried out the attacks were killed in the course of the crimes.

Osama Bin Laden emerged as the primary suspect behind the hijackings. Evidence pointed toward the involvement of al-Qaeda. Bin Laden made admissions over the years that he was responsible for the attacks.

Under the law of parties, Bin Laden was as culpable as the men who actually hijacked the planes and crashed them into the buildings. He could have been charged with a myriad of crimes in several different jurisdictions.

The US Navy Seals who carried out their mission last week did not possess either an arrest or a search warrant. They broke into a dwelling displaying weaponry. They killed an unarmed man. (I say unarmed because the story surrounding what really happened changes from day-to-day and if there were some proof that Bin Laden was armed we would have seen photos or heard about it by now. The very fact the government keeps changing its account is enough to tell me that he was unarmed at the time of the shooting.)

The men who raided the compound intended to kill Bin Laden according to statements made by the US Attorney General Eric Holder:

‘The operation in which Osama bin Laden was killed was lawful,’ he said. ‘He was the head of Al Qaeda, an organization that had conducted the attacks of Sep 11. He admitted his involvement and he indicated that he would not be taken alive.'

‘The operation against bin Laden was justified as an act of national self defense,’ he said.
It was lawful to target an enemy commander in the field and the mission was conducted in the way that was consistent with US laws and values, Holder testified, adding that it was a ‘kill or capture mission.’

‘If he had attempted to surrender, I think we should obviously have accepted that, but there was no indication that he wanted to do that. And therefore his killing was appropriate,’ Holder said.

I'm not quite clear on how the killing of an unarmed man in another country by US citizens is "consistent with US laws and values." I understand that Mr. Holder is but a mouthpiece for the administration, but for an officer of the court to suggest that anything about this mission was consistent with our laws is disingenuous at best and outright hypocrisy at worst.

Jamison Koehler had an interesting post on Monday dealing with Americans overseas who seem to think that the Constitution protects them when they do something they're aren't supposed to do. It doesn't. Just like your parents' rules didn't protect you when you spent the night at a friend's house, our laws do you no good should you decide to smuggle dope into another country.

But where Mr. Koehler got off track was when he posited that Bin Laden wasn't entitled to any due process rights under the US Constitution at the time he was killed.

But I don’t agree with Kennedy when he uses this argument in connection with the extrajudicial killing of Osama Bin Ladin in potential violation of international law. While the U.S. Constitution does in fact apply to the actions of the American seals who raided Bin Ladin’s compound, and to the President who authorized that raid, it is a stretch to argue that Bin Ladin himself enjoyed any “due process” rights under the U.S. Constitution.

Bin Laden was wanted in the United States for crimes committed on American soil (or in American airspace). The raid was conducted by US military forces. We're not talking about some trigger-happy Pakistani soldier here, we're talking about a raid authorized by the President of the United States (and if I remember correctly, he took some oath in which he promised to abide by the Constitution).

The issue is not where the killing took place. Bin Laden was in American custody when he was killed. He was accused of a crime in the United States. He was entitled to his due process rights.

It's all relative

It's the middle of the night. Police surround a house. At the designated signal the front door is kicked in and officers storm the dwelling. The people inside the house see nothing but high powered flashlights and guns. They hear strangers shouting and threatening to shoot.

The officers continue through the house until they find the object of their raid. The man is unarmed. Instead of taking the man named in the warrant into custody they take him into another room and shoot him once in the chest and once in the head.

Maybe the evidence was overwhelming that the suspect was guilty as charged. We'll never know for certain because the police played the role of judge, jury and executioner. The dead man was, by law, presumed innocent. He was entitled to due process of law. He was entitled to a trial before a jury. He was entitled to consult with an attorney before making any statements once taken into custody. He was entitled to confront the witnesses against him and to put on evidence in his behalf.

Those rights were snuffed out in the blink of an eye.

What would your reaction be? What if he were charged with armed robbery? Aggravated assault? Murder? At what point is it acceptable to deprive the accused of his rights under the law? What if wasn't a citizen of the United States? What if the police officers were serving a warrant from another country?

The Constitution makes no distinction between the rights afforded to citizens and noncitizens. The Constitution makes no distinction between the rights afforded to a man accused of murder and a man accused of DWI.

Osama Bin Laden was accused of masterminding a criminal act of horrific magnitude in the United States. Mr. Bin Laden was unarmed at the time he was killed. No matter how heinous the crime of which he was accused, Mr. Bin Laden was entitled to his due process rights.

But the Navy decided to take justice into its own hands. The deprivation of rights is never anything to be cheered. Particularly by men and women who swore to defend the Constitution. If Bin Laden is not entitled to the protections afforded by the Constitution, who's next in line to lose their protection?

Up in arms about an illegal search? How about a Miranda violation? Didn't get your Brady material? Did you cheer the news of a killing in Pakistan? A killing that violated a man's rights?

We don't defend an individual as much as we defend the Bill of Rights. We don't defend what a person may or may not have done so much as we defend his rights under the Constitution. Sometimes it can be distasteful, but even the worst among us deserves his rights. That's what we do.

This is supposed to a nation of laws; but I suppose that's all relative.

The hidden agenda

How anyone can think it is appropriate in any way shape or form for counties to place displays in front of their courthouses for crime victims is beyond me. The latest one comes from a reader by the name of Kirk who sent me a link to the display in Henderson County.

According to this article in the Tyler (Texas) Morning Telegraph, it's not laundry day on the square in Athens, it's a memorial to the victims of crime, primarily domestic or sexual assault.

I understand the need for cathartic therapy. I understand that someone who has been sexually assaulted must deal with unseen scars long after the assault is over.

But I also understand that everyone criminal defendant who walks into the Henderson County Courthouse is presumed innocent unless the state is able to prove each and every element of its case beyond all reasonable doubt. Every potential juror in Henderson County will walk right past this display every day that it's up. The display was approved by the County Judge and Commissioner's Court. (For those of y'all not familiar with the way we do things in Texas, those are the folks who rule supreme in the county.)

Criminal cases are tried in the name of the state. That's the government, folks. The government approved the placing of the display on the courthouse grounds. The government is bringing charges against people for allegedly breaking the law.

Each and every one of these displays across the state violates the rights of a defendant in a criminal case. Each and every one of these displays is put up with the purpose of influencing jurors. It is part of the ongoing assault on the Bill of Rights and our constitutional protections.

See these previous posts:

"Presumption of innocence? What presumption of innocence?" (Oct. 5, 2009)
"Not a good week to be on trial in Montgomery County" (Apr. 11, 2011)

Not a good week to be on trial in Montgomery County

By proclamation of our dear leader, the fair-haired one, Governor Rick Perry, the week of April 10-16, 2011 is "The Defendant's Not Deserving of a Fair Trial Week."

We all have the right to be free from unreasonable search and seizure at the hand of the state. Those accused of breaking the law have the right to remain silent and the right to consult with an attorney. Defendants at trial have the right to trial by jury and due process rights, including the right of confrontation.

The state has the right to notice of certain items as well as the right to demand a trial by jury.

The complaining witness (the alleged victim) has no rights in criminal court. The complaining witness is not a party to the litigation.This notion that "victims" have rights assumes that a crime was committed and is used as a front for attacking the Bill of Rights and a criminal defendant's due process rights.

Up in Montgomery County they take that notion to an extreme with a banner across the courthouse entrance and a "Crime Victim Memorial Wall" in the courthouse. Nothing like walking a jury passed those displays and then expecting them to sit in judgment of another without being influenced by it.

When a person sits at the defense table facing a jury of his peers, he deserves a jury that is going to make its decision solely on the facts of his case, not a jury that's going to base its decision on the fact that someone thinks a message must be sent or that a statement must be made.

Now I'm sure there are plenty of folks who don't see the problem with these proclamations and displays - and I understand that attitude. After all, most of us will never set foot in a courtroom accused by the state of committing a criminal act. But in the event that someone you know finds himself or herself in that position, would you want a jury who would presume them innocent unless proven guilty or a jury that was exposed to pro-prosecution propaganda on the way into the courthouse?

That's the real issue here.