(b) By hypothesis, in any situation in which self-defense with deadly force is justifiable, capture of the assailant is not feasible. If it were, then the use of deadly force would be contra-indicated. But that the capture of some suspected “terrorist” is not feasible is, by itself, no justification for an “official homicide”. One wonders how very extraordinary the circumstances would have to be for the impossibility of capturing some suspected “terrorist” to be a plausible excuse for an “official homicide”. For instance, if capture of the “terrorist” were not feasible because no one knew where he was, he obviously could not be targeted for an “official homicide”. If his location were known, but so inaccessible that no one could get at him to effect his capture, how would he be able to mount an attack on the United States—by some form of remote control over a “weapon of mass destruction”? And would any “terrorist” sufficiently sophisticated to have devised, built, and planted such an infernal machine simply wait, hunched over the plunger of the firing-device in some squalid hut in Obscuristan (or Cleveland, Ohio, for that matter), long enough to be targeted for a “hit” by a sniper firing an Accuracy International rifle chambered in .338 Lapua Magnum, by a cruise missile, or by a death-dealing drone? Besides, if the “terrorist’s” location and plan were known—which information would be necessary in order to carry out an “official homicide”—would not the location of his infernal machine likely also be known, so that it could be disarmed? Plainly, Mr. Holder would have been more credible if he had provided some real-life examples—if any there be—of “terrorists” known to have posed actual “imminent” threats to the United States when their captures were not feasible.
(c) Contrary to Mr. Holder’s assertion, “official homicides” of Americans must comply, not “with * * * four fundamental law of war principles”, but with one. And that one absolutely excludes “official homicides”.
Recall Mr. Holder’s statement that “[w]e are a nation at war”. Assuming for the purposes of argument that this is true as a matter of fact, those rogue American citizens who (in Mr. Holder’s words) “have decided to commit violent attacks against their own country” are, in the Constitution’s words, as a matter of law committing “Treason” by “levying War against the[ United States], or * * * adhering to their Enemies, giving them Aid and Comfort”. U.S. Const. art. III, § 3, cl. 1. This is “the law of war”—and the only “law of war”—to which every American “terrorist” is subject. If an individual American is “levying War against the[ United States]”, the constitutional law of “Treason” applies. And because the constitutional law of “Treason” applies to such a situation, no other “law of war” (or “law” of any other kind) can apply, except insofar as it perfectly embodies, enforces, or is at least is consistent with the law of “Treason”.
Now, the law of “Treason” requires that “[n]o Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court”. U.S. Const. art. III, § 3, cl. 1. “No Person.” “Treason”, of course, is a “crime”. “The trial of all Crimes, except in Cases of Impeachment, shall be by Jury”; and “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”. U.S. Const. art. III, § 2, cl. 3 and amend. VI. So, to be “convicted” of “Treason”, a “Person” must have “a speedy and public trial, by an impartial jury”, at which the evidence includes, at the minimum, “the Testimony of two Witnesses to the same overt Act, or * * * Confession in open Court”. Is it not self-evident that a “Person” who is killed on the mere suspicion of “Treason” is thereby effectively “convicted of Treason” in the most palpable and permanent manner possible? And, that being so, is it conceivable that, having set out an elaborate judicial procedure and strict evidentiary standards in explicit terms, the Constitution nonetheless left to implication a power in the President to circumvent and effectively negate the law of “Treason” by killing outright any and all “Person[s]” merely suspected of “Treason”, without trial or sufficient evidence (indeed, with perhaps no competent evidence at all)? But these questions answer themselves.
So, once again, one sees upon the very face of the Constitution the refutation of Mr. Holder’s position. Yes, “‘[d]ue process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security”. For “when it comes to national security” against “Treason”, the Constitution explicitly mandates “judicial process”, and only “judicial process”, not some bastardized “due process” that would have been far more familiar to Bugsy Siegal and Albert Anastasia than to James Madison and Thomas Jefferson.
At this point, one should hope, sufficient reason, authority, and common sense have been marshaled to put paid to Mr. Holder’s complaint that “the use of th[e] loaded term [‘assassination’] is misplaced”. Because no legal basis exists for killing out of hand American citizens who “levy[ ] War against the[ United States]”, “assassination” is a perfectly descriptive and justifiable term for what is going on.
5. To be sure, at one point in his address Mr. Holder seemed to limit the reach of the doctrine of “official assassinations”: to wit, “an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful”. But from everything else he said (discussed above), the permanent limitation of these “operation[s] using lethal force [to] a foreign country” cannot be expected. And certainly nothing in the doctrine of “official assassinations” itself, or in the pseudo-constitutional apologies Mr. Holder presented on its behalf, suggests that it can or will be so geographically confined. After all, “national security” surely applies in “the homeland”. And the President may exercise his powers as “Commander in Chief” as well within the United States as outside. If the President may order “official assassinations” of American citizens suspected of “terrorism” when they are found outside of the United States, why cannot he order such assassinations when the targets are inside of the country?
In addition, Mr. Holder denied that
the Executive Branch has—or should ever have—the ability to target any such individuals without robust oversight. Which is why, in keeping with the law and our constitutional system of checks and balances, the Executive Branch regularly informs the appropriate members of Congress about our counterterrorism activities, including the legal framework, and would of course follow the same procedure where lethal force is used against United States citizens.
The self-evident fallacy in this assurance is that no “checks and balances” could prove to be of any value to a target of an “official assassination” after his death. To be meaningful, a “check”—in the sense of a mechanism capable of causing “a sudden stoppage of a course of action”—would need to prevent the killing, until some further constitutional process might determine whether it were justified.
Beyond that, if the “checks and balances” operated only ex post facto, would the Executive Branch: (i) identify its victims; (ii) admit that their deaths resulted from “official homicides”; (iii) provide evidence establishing at least a prima facie case of “national self-defense” to justify those killings; and (iv) identify everyone who had ordered and committed the killings, and waive any “official immunity” they might claim, so that they could be prosecuted or sued for damages if the evidence of “self-defense” turned out to be insufficient? After all, if those who incited, ordered, and perpetrated these homicides honestly believed themselves to be satisfying the standards of “national self-defense” in doing so, what would they have to fear from full disclosure? One suspects that Hell will freeze over before Mr. Holder, or anyone else in the Administration, proposes any such requirements.
The major demerit in Mr. Holder’s promise of “robust oversight” is the one endemic to all forms of political “oversight” within the government: namely, quis custodes custodiet? Who will oversee the overseers, and impose penalties when the oversight is not conducted properly? Why should Americans trust some “oversight” committee of Congress any more than the rogue officials of the Executive Branch the committee is to “oversee”? Every relevant indicium should convince any observer of the General Government that, for as long as runs the memory of any living man, Congress has conducted little to no effective “oversight” of the Executive Branch, the Administrative State, the Military-Industrial Complex, or the Federal Reserve System’s banking cartel—even as this country has been led into economic collapse, as foreign military adventures have proliferated, and as the Executive Branch has claimed the power to kill without trial any American on whom it chooses to pin some opprobrious label. In the course of all of Congress’s “oversight” throughout the years, have the officials called upon to testify always told the truth, or been compelled to do so when they balked? When their lies or other abuses were exposed, were those officials impeached, convicted, and removed from their positions? Was the legislation under color of which they perpetrated their wrongdoing repealed or radically revised? Were the agencies or programs they misused terminated, defunded, or reorganized? No, no, and once again no!
And what if the Executive Branch were to “inform[ ] the appropriate members of Congress about * * * counterterrorism activities” by providing for Congressional “oversight” the names of American citizens who had been killed out of hand as suspected “terrorists”, “enemy combatants”, and so on? Congress’s approval of such a proscription list would amount to an ex post facto “Bill of Attainder”—which would be worse than a “Bill of Attainder” Congress itself unconstitutionally drew up in the first place, because in the latter case: (i) Congress would determine who should be included in the “Bill of Attainder”, and (ii) Congress could change its mind before the “Bill of Attainder” passed, or might repeal the “Bill of Attainder” before it was put into fatal effect.
And even with such information in hand, what could Congress do if it disapproved of the proscription list, in whole or in part? Ask the Messiah in the Whitened Sepulcher on Pennsylvania Avenue to resurrect the victims? Moreover, assuming for purposes of argument that strong disapproval from Congress would have some chastening effect upon officials in the Executive Branch, what if the Executive Branch “inform[ed] the appropriate members of Congress about * * * [American] counterterrorism activities” that were instigated by some foreign nation or some international or supra-national organization—in the manner that Secretary of Defense Panetta and JCS Chairman General Dempsey recently told Congress it might be informed when the President involves American Armed Forces in foreign military adventures on the say-so of some foreign interests? Would hot words from Congress faze bureaucrats in some foreign country, or in some international or supra-national organization, or simply provide further evidence of Congress’s impotence, irrelevance, and inanity?
6. Of course, at the end of the day, one does not need to be a constitutional scholar, but only to be possessed of common sense, to know that the very people who claim the power to kill their fellow citizens without trial, on the basis of mere suspicions, are the very last people who should ever be allowed to wrap their hands around the instruments through which such a power could be exercised. That is, such a claim of homicidal power, by itself, should be deemed sufficient to support a permanent disqualification from public office of any and every individual asserting it.
Yet, as grotesque as are the claims of the Executive Branch to the power to perpetrate “official assassinations”, perhaps even more disquieting is the utter lack of outrage on the part of the general public. True enough, if sixty years ago someone had predicted with perfect accuracy the actual sequence of steps by which the General Government would degenerate into the homicidal para-military police state that confronts this country today, would such an individual not have been considered a fit candidate for sedation in a mental institution? Nonetheless, actual events have validated such a prediction, in spades. Where, though, are the mass protests? Where are the marches in Washington, D.C., and in the States’ capitals? Nowhere. And why? Is it because, over the last sixty years, ordinary Americans have become inured to “official assassinations”? For example, could any thinking person be found today who would deny that Lee Harvey Oswald—just the most famous of the many individuals who ended up prematurely and violently dead because of their connections with the events surrounding the assassination of President John F. Kennedy—was the victim of an “official assassination”? What about the atrocity at Waco? Would any thinking person describe that as other than an “official assassination” en masse—and of women and children who could not possibly have been guilty of any crime deserving of any punishment, let alone death? Were not these killings perpetrated within the United States? Were not the paw prints of rogue officials of the General Government all over the crime scenes? So perhaps “more of the same” today is, as the wag said, just “déjà vue all over again”.
Well, it may in fact be “déjà vue”, but in a most perverse sense. The old saying, “those who refuse to learn from history are condemned to repeat it”, does not apply only to ancient history. Not that long ago—in 1934 to be precise—Adolf Hitler first openly asserted his supposed personal authority as Führer to order executions of Germans without trials, licensing himself to preempt and overrule the courts under the style of “the supreme judge of the German people”. The German Army’s General Staff imprudently supported him in these murderous pretensions, because his first “official assassinations” eliminated the dangerously radical and corrupt leadership of the Sturmabteilung (“the Storm Troopers” or “SA”), which threatened the Army’s martial supremacy. See John W. Wheeler-Bennett, The Nemesis of Power: The German Army in Politics 1918-1945 (London, England: Macmillan and Company Limited, 1964), at 304-332. And every thinking person in the entire world knows where that seemingly isolated incident led. Yet, nonetheless, Americans are well on their way to repeating it, once again verifying the cynical wisdom of the old adage that “the only thing one learns from history is that no one ever learns anything from history”.
Sadly, Americans have proven to be a race of political Rip van Winkles. Intoxicated with materialism, they dozed off in the 1950s, and now that the kick of jackboots has rudely awakened them, they find themselves in 1984. But this situation, although dire, is not beyond correction. The Constitution prescribes what is “necessary to the security of a free State”—namely, “well regulated Militia”.
If “necessary to the security of a free State”, they must be even more necessary to the existence of “a free State”; for “a free State” must exist before it can be made secure. Self-evidently, too, the existence of “a free State” depends upon the existence its people. “[A] free State” cannot exist when some purportedly superior authority claims to exercise a power to commit “official assassinations” of anyone and everyone whom it declares to be an “enemy”. So the very first purpose of the Militia must be to preserve the lives of the people against “official assassinations”, as well as all other potentially fatal dangers—which, of course, makes perfect sense, inasmuch as the Militia are the people. But for the Militia to perform this vital function, they must exist—that is, they must be organized, armed, disciplined, and trained in the several States, whose institutions they are. Which will never happen until We the People demand it of their State legislators.
So far, however, even the threat of being “officially assassinated” has not stirred Americans to such action in their own legal, political, and physical self-defense. Let us hope that the reason is not to be found in the adage, “whom the gods wish to destroy they first make mad”. For part one click below.
1. The examples of Oswald and Waco further expose the flaw in Mr. Holder’s contention that the government’s supposed inability to capture a suspected “terrorist” somehow justifies an “official assassination”. In Oswald’s case, he was in custody when he was assassinated. Indeed, it was because of his capture that he was killed. He had already announced to the press that he was nothing but a “patsy”, and was sure to spill the beans on his intelligence-agency connections rather than take the fall as “the lone gunman”. So he had to be silenced. In the case of Waco, the Branch Davidians were as good as in custody—totally surrounded in their complex, isolated from outside assistance, with no means of escape. No attack on them was necessary. Rather, they could simply have been left confined there, until they ran out of food and were compelled by hunger to give themselves up. So, the mass “official assassination” was set in motion in spite of their capture. Apparently, once again, rogue public officials felt the need to eliminate embarrassing witnesses to their own wrongdoing. One could also add the assassination of “Osama” (whoever the victim actually was) to this list. Under the circumstances as they have been described, any competent team of kidnappers could have taken that individual alive, strongly sedated him, and delivered him—just as they supposedly delivered his dead body—to a waiting ship. But no one was eager for “Osama” (whoever he might have been) to start talking where the public could hear. Thus, on the basis of these notorious precedents, no suspected “terrorist” could ever presume that, even if captured, he would not be assassinated anyway.