Lynchlaw Two: The Doublethinker
May 26, 2013 § Leave a comment
I listened to the President’s “War on Terror” speech. It swept around curves, ascended to flights of emotional eloquence, included charming confessions of doubt and regret, and claimed obedience to our legal and cultural requirement that government killing be done with some care. I had to check a transcript to see exactly what he was saying. See transcript.
After reading the transcript, I thought of George Orwell’s 1984. It described a mythical land, Oceana, governed by Big Brother, perpetually at war to defend INGSOC, Orwell’s abbreviation for English socialism. It was engaged in the replacement of Oldspeak with Newspeak, a language that would facilitate and ultimately require Doublethink.
Here are some of Orwell’s description of these features:
“‘Who controls the past,’ ran the Party slogan, ‘controls the future: who controls the present controls the past.’ And yet the past, though of its nature alterable, never had been altered. Whatever was true now was true from everlasting to everlasting. It was quite simple. All that was needed was an unending series of victories over your own memory. ‘Reality control’, they called it: in Newspeak, ‘doublethink’.”
* * *
“. . . the word GOODTHINK, meaning, very roughly, ‘orthodoxy’, or, if one chose to regard it as a verb, ‘to think in an orthodox manner’. This inflected as follows: noun-verb, GOODTHINK; past tense and past participle, GOODTHINKED; present participle, GOOD-THINKING; adjective, GOODTHINKFUL; adverb, GOODTHINKWISE; verbal noun, GOODTHINKER.”
* * *
“Ultimately it was hoped to make articulate speech issue from the larynx without involving the higher brain centres at all. This aim was frankly admitted in the Newspeak word DUCKSPEAK, meaning ‘to quack like a duck’. Like various other words in the B vocabulary, DUCKSPEAK was ambivalent in meaning. Provided that the opinions which were quacked out were orthodox ones, it implied nothing but praise, and when ‘The Times’ referred to one of the orators of the Party as a DOUBLEPLUSGOOD DUCKSPEAKER it was paying a warm and valued compliment.
The Speech: A Mismatch Between An Overweening Claim of Authority and Respect for The Constitution
I found the speech to be a confession, although I’m sure it was intended as a defense and justification. But then, I am bogged down in Oldspeak, while the President was demonstrating his prowess with Newspeak. I don’t believe he is entitled to the DOUBLEPLUSGOOD DUCKSPEAKER designation because he is an intelligent lawyer and scholar. He knew exactly what he was doing and its implications. That is what makes his speech so troubling .
In defense of his reasonableness, Obama said he was considering various ways to submit his decisions to kill people to “oversight”. Here is his statement:
“Going forward, I have asked my Administration to review proposals to extend oversight of lethal actions outside of warzones that go beyond our reporting to Congress. Each option has virtues in theory, but poses difficulties in practice. For example, the establishment of a special court to evaluate and authorize lethal action has the benefit of bringing a third branch of government into the process, but raises serious constitutional issues about presidential and judicial authority. Another idea that’s been suggested – the establishment of an independent oversight board in the executive branch – avoids those problems, but may introduce a layer of bureaucracy into national-security decision-making, without inspiring additional public confidence in the process. Despite these challenges, I look forward to actively engaging Congress to explore these – and other – options for increased oversight.”
I have two questions: First: Why has it taken four and one-half years for the President to realize that using bombs and missiles to kill specific persons in foreign lands, away from any war zone, requires “oversight”? Second: Why isn’t the American judicial system adequate to handle a question like, “Is there enough credible evidence to support the accusation that Mr. Proposed Target has committed a crime sufficiently serious and imminently dangerous to justify his summary execution?”
The President’s speech is based on some very dangerous assumptions: First, we are at war. Second, the nature of this war renders the entire world outside the boundaries of the United States a battlefield. Third, given these assumptions, the President has the authority and obligation to dispatch lethal military force anywhere on that battlefield to kill anyone who poses or participates in facilitating a threat to the United States.
The above cited excerpt from his speech assumes that it is up to him to choose whether and to what extent his authority should be limited. That assumes that the Constitution is not pertinent to his choices. I know he sandwiched into a paragraph the following acknowledgement: ” For the record, I do not believe it would be constitutional for the government to target and kill any U.S. citizen – with a drone, or a shotgun – without due process.”
My problem with that statement is: “Thank you, Mr. President, but your actions drown out your words; the policies you defend belie compliance with due process. You are a GOODTHINKER using DOUBLESPEAK.”
It is important to remember what we mean when we speak of “due process”. Its rudiments are: notice to one accused of a crime of the precise nature of the crime of which he is accused; making available to him the advice and assistance of a competent lawyer; allowing him and his lawyer the time and opportunity to confront and challenge, by cross-examination, the sources of the evidence offered against him; a judgment by an impartial and independent tribunal; and a conviction only if supported by credible and legally obtained evidence.
In the context of this discussion, it is plainly impractical to comply with all of these requirements if the accused is located in some foreign land and has not been apprehended or even located. If, however, the government is seeking, not merely the right to apprehend the accused, but also the right to drop a bomb or a missile on him or her, the issue in court should not be limited to the usual process of obtaining an arrest warrant. If the government wants a death warrant, the court should be so advised, should appoint a lawyer to represent the accused person and conduct a hearing at which the accused’s lawyer is permitted to question and cross-examine the evidence.
The “ticking bomb” scenario will be proposed as an attack on this proposal. Our legal system has a tried and true answer to this objection. It is analogous to an application for a temporary restraining order. When imminent danger is threatened, a judge will review affidavits and other credible evidence as a basis for granting the application. Judges can, and should, also place a telephone call to a lawyer, appoint him or her to represent the interests of the accused, and order him or her to come immediately to the judge’s chambers or his home to examine the evidence and make whatever arguments are appropriate to protect the rights of the accused. This kind of procedure has been followed in labor strike violence situations for decades. It works. It is fair. And, enjoining a strike is far less serious than signing a death warrant.
To summarize: The key element missing from the President’s policies and proposals, as outlined in his speech, is any opportunity for the targeted person or someone representing his or her interests to be heard by some impartial judge or tribunal before a death sentence is issued. That is the essence and foundation of due process.
The Anwar Awlaki Case
The President has offered not evidence of any “ticking bomb” case. Here is his description of the evidence against Anwar Alwaki:
” That’s who Anwar Awlaki was – he was continuously trying to kill people. He helped oversee the 2010 plot to detonate explosive devices on two U.S. bound cargo planes. He was involved in planning to blow up an airliner in 2009. When Farouk Abdulmutallab – the Christmas Day bomber – went to Yemen in 2009, Awlaki hosted him, approved his suicide operation, and helped him tape a martyrdom video to be shown after the attack. His last instructions were to blow up the airplane when it was over American soil.”
Wouldn’t it be comforting to know just what Awlaki actually did to “oversee” plots to put bombs on two planes? What does “hosting” Abdulmutallab mean? Let him sleep in a spare bedroom? What does “approved” mean with respect to the suicide mission? Was Awlaki in a position to decide whether militants could or couldn’t engage in terrorist activity? Finally, suppose Abdulmutallab had decided to try to ignite a bomb in his underwear over Detroit. Suppose Awlaki made available to him the equipment to make a tape of his intention, to be played for propaganda purposes after his death. Is that a death penalty offense? Did Awlaki have a duty to notify the authorities of Abdulmutallab’s intentions?
There is no doubt that Awlaki should have prevented Abdulmutallab from committing an act of terrorism, but I doubt that his failure to do so amounted to a crime.
Jeremy Scahill, in some of the televised interviews I linked to in my previous post about this subject, said that, based on his interviews of Muslims in Yemen, he concluded that Awlaki did not have any position of authority with respect to Al Qaeda operatives in Yemen; that his English language diatribes, posted on YouTube, were regarded as minor features of the anti-America movement. Scahill said that telecasts in Arabic by other Al Qaeda activists were far more influential and important than Alwaki’s. He said that the “head of operations” for Al Qaeda was a title unknown to the people in Yemen whom he interviewed.
I don’t know who to believe here. What I do know is that, when Awlaki was killed September 30, 2011, there was no “ticking bomb” nor was there any “imminent threat” to the United States. Awlaki’s father filed a civil suit in a D.C. Federal Court in the Spring of 2010, after press reports that his son had been slated for death. He asked for an injunction to prevent his son from being killed. The government filed a motion to dismiss on multiple grounds. The court dismissed the case in an 84 page decision. The judge wrote that the father had no justiciable interest in preventing his son’s death. The court also ruled that the father could not act as “next friend” for Awlaki, because Awlaki had expressed hostility toward American justice and its legal system and, hence, presumably would not want to invoke its jurisdiction to save his own life. The government invoked the “national security” defense to disclosing any evidence they had as a basis for seeking Alwaki’s death.
As I read this long rambling opinion, replete with citations of legal authority, all I could think of was the often quoted excerpt from Oliver Twist:
“‘If the law supposes that,’ said Mr. Bumble,…’the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.””
Oh, and by the way, the same evidence that could not be disclosed because it would threaten “national security” in 2010, has now been make public as a basis for defending the killing of Awlaki.
What the President Didn’t Mention
During his major speech about counter-terrorism, the President did not mention the fact that, about two weeks after killing Anwar Awlaki, the President dispatched another drone to Yemen and this time it killed Awlaki’s sixteen-year-old son and his seventeen-year-old cousin, as they were sitting in a cafe. The President said that they and two other American citizens who were killed was not “targeted”, which doubtless assuaged the grief of a widowed mother and a grieving grandfather.
It would serve no purpose to elaborate on other ironies in the President’s speech. He simply bought into the whole “war terror” metaphor as a justification for continuing policies that shred the protection of our Constitution against unfettered military power of the presidency. His insistence that he does so soberly and carefully does not detract from the fact that he does so.