Conscription and the War Tax

by Dr. Gerard Emershaw

Veteran New York Congressman Charlie Rangel has recently proposed a new military draft and a “war tax” as methods of dealing with the Islamic State situation in Iraq and Syria. Rangel has long been an advocate of military conscription and other forms of non-military compulsory government service for young Americans. Rangel claims that a draft and a “war tax” would cause the majority of Americans to “feel” the consequences of military action against the Islamic State. He has long felt that a small minority of Americans endure the suffering connected with war.

The first national draft in the United States took place during the Civil War. While conscription produced a small minority of the total number of Union soldiers employed against the Confederacy, the attempt to enforce the law making all American males between the ages of 20 and 45 draft eligible led to the most destructive civil disturbance in New York City history on July 13, 1863. At least 119 died in the riots. Wealthy individuals were able to avoid serving if drafted by paying for a replacement. Theodore Roosevelt’s father famously did this, inspiring the future president to seek family redemption by seeking military adventure. Congress passed the Selective Service Act on May 18, 1917 in order to raise the manpower necessary to fight the unpopular Great War—only about 100,000 of the 1 million men needed volunteered prior to the reinstatement of hte military draft. The draft remained active through World War II, the Korean War, and the Vietnam War. No soldiers have been drafted in the United States since 1973. President Nixon campaigned on ending the draft and favored ending conscription as a means of neutering the antiwar movement. Unfortunately, it seems likely that the antiwar activists during the Vietnam War were mainly interested in protecting themselves and their loved ones from being drafted and forced to fight and die against their will.

Conscription is a violation of the natural right to liberty. The government has no right to force an individual to join the military against his or her will let alone to force an individual to fight, risk life and limb, and kill in a war. Forcing an individual to join the military not only violates the right to liberty but also potentially the right to life as all wars have fatalities. Conscription also violates the right to property as conscripted soldiers are forced to leave jobs and other business interests during the period of forced military service. Thus, conscription violates all three prongs of the Due Process Clause of the Fifth Amendment. It also violates the Thirteenth Amendment, which outlaws slavery. What is being forced under penalty of law to join the armed forces and fight in a war if not literal slavery?

Rangel’s “war tax” proposal is a bit less egregious than his conscription proposal. “War taxes” are nothing new in American history. For example, a telephone tax was created in 1898 to help pay for the Spanish-American War. This tax was not completely abolished until 2006. At present the unconstitutional wars in the Middle East are being funded by increasing national debt and the Federal Reserve’s “inflation tax.” Wars need to be funded somehow—either now or with interest down the line. Placing a tax on those who benefit—defense contractors, oil companies, etc.—would seem just, but paying these taxes would ultimately just be passed onto American taxpayers. However, if the federal government were forced to stop using its “fiscal illusions” to hide the true cost of wars from taxpayers, then it is likely that the people would oppose most wars.

While conscription is immoral and should properly be viewed as unconstitutional, there exists what is in effect a de facto draft. By destroying the economy through burdensome taxes and regulations and corporatist machinations, the federal government has forced many young Americans to join the military because there are so few economic opportunities for young people—particularly young people in lower socioeconomic classes. Military personnel and veterans should be honored for the courageous service and the sacrifices that they make defending the Republic. However, forcing desperate young Americans to serve in the military and then using them in cynical, unconstitutional, corporatist wars to protect the interests of crony capitalists and foreign despots is unacceptable and positively Un-American.

(For a much more detailed discussion of the natural rights to life, liberty, and property as well as taxation, read my new book The Real Culture War: Individualism vs. Collectivism & How Bill O’Reilly Got It All Wrong. Available now on Amazon in both print and Kindle.)

Freedom and Bigotry

by Gerard Emershaw

Human beings possess natural rights to life, liberty, and property. The right to liberty includes freedom of speech and freedom of religion. The right to property involves a bundle of rights including the right of possession (the property is owned by the title holder), the right of control (the owner controls the property's use), the right of exclusion (the holder can deny people access to the property), the right of enjoyment (the holder can use the property in any legal manner) and the right of disposition (the holder can buy or sell the property). These natural rights are protected by the Bill of Rights of the Constitution.

It is obvious that human beings have a natural right to say bigoted things provided that this hateful and collectivist speech does not involve threats or defamation. But does a property owner have the natural right to exclude others from his or her property based solely upon the race, religion, gender, sexual orientation, or the like of that other? Title II of the Civil Rights Act of 1964 states:

All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination on the ground of race, color, religion, or national origin.

The Act defines ‘public accommodation’ broadly to include hotels, motels, other places of lodging, restaurants, cafeterias, lunchrooms, lunch counters, soda fountains, other businesses selling food for consumption on premises, movie theaters, concert halls, sports arena, stadium, etc.

The Supreme Court has held that Congress has the power to enforce Title II through the Commerce Clause in cases such as Heart of Atlanta Motel v. United States (1964) and Katzenbach v. McClung (1964).

Former Congressman and presidential candidate Ron Paul and Senator Rand Paul have both been criticized for comments casting doubt on Title II. While progressives savor the possibility of pillorying anyone who has a good faith objection to any civil rights legislation, the question which arises is important. If a human being has a natural right to liberty and to property, does not he or she have the right to exclude others from his or her hotel, restaurant, movie theater, sports arena, etc. for any reason? Under the Constitution, government entities have no right to discriminate on the basis of race, color, religion, or national origin. But nothing in the Constitution seems to prevent private actors from doing so.

Consider the following array of cases. An African American woman who was gang raped by white supremacists and whose parents were murdered by a Klu Klux Klan bombing decides not to allow whites to eat in her diner. An elderly woman whose family was murdered in a Nazi concentration camp decides not to allow Germans to stay in her hotel. A man whose wife was killed in the World Trade Center on 9/11 decides not to allow Muslims to watch films in his movie theater.

One could ask why these former victims should have to face those who remind them of their victimizers. Of course this attitude is collectivist and irrational, but PTSD, trauma, anxiety, etc. are not rational disorders. This does not stop them from plaguing the psyche of many who have been victimized.

While the grey-bearded patriarch Phil Robertson of A&E’s wildly successful TV program “Duck Dynasty” has been in the news for his suspension over allegedly homophobic statements, his potentially racially insensitive statement received far less attention in the media. Robertson said about growing up in Louisiana prior to the Civil Rights Movement:

I never, with my eyes, saw the mistreatment of any black person. Not once. Where we lived was all farmers. The blacks worked for the farmers. I hoed cotton with them. I’m with the blacks, because we’re white trash. We’re going across the field.... They’re singing and happy. I never heard one of them, one black person, say, ‘I tell you what: These doggone white people’—not a word!... Pre-entitlement, pre-welfare, you say: Were they happy? They were godly; they were happy; no one was singing the blues.

Essentially, he is saying that African Americans were happy before the Civil Rights Movement, and therefore, Jim Crow may not have been that bad. Robertson clearly acknowledges a racial caste system. He was “white trash,” therefore, it was appropriate for him to be with the African Americans. Of course, it is clear what word would signify the African American analog of “white trash” during the Jim Crow Era.

Despite Phil Robertson’s anecdotal evidence concerning the limited experiences of his youth, there is no doubt that African Americans were mistreated during the Jim Crow Era. The federal government, state governments, and local governments all failed in defending the natural rights of African Americans. The question is whether the violation of natural rights caused by Title II is justified by over two centuries of mistreatment of people of African descent in the United States.

Oprah Winfrey recently caused an uproar when she said of older white racists: “Older people who marinated in that prejudice and racism … they just have to die.” If Winfrey was wishing death upon these elderly bigots, then that is wrong. However, it is not clear that that was what she was doing. The way that attitudes regarding race, gender, religion, sexual orientation, etc. become more tolerant is by bigoted generations passing away and being replaced in positions of power by members of a younger and more tolerant generation. Just as with science, society changes through massive paradigm shifts caused by changing attitudes and changing demographics. There are few George Wallaces. Few people see the error of their ways and go from being vicious collectivist racists to tolerant individuals. Racist hate organizations such as the KKK are on the wane because the most die hard racists in the country are elderly or have died. Whether contemporary racists and religionists who hate based upon skin color, religion, or sexual orientation know it or not, they are a dying breed.

In many ways, the point of whether Title II is justified is moot. For the most part, it is no longer needed. The question is whether it was needed. There is no doubt that many virulent racists who ran businesses simply could not stand to follow the new Civil Rights legislation and sold or closed their businesses. Others probably just grinned and bore it. Over time, there were fewer racists of that ilk. Would intentional racism—as opposed to the unintentional institutionalized racism of the progressive welfare state—have dissipated as quickly without legislation such as Title II? Probably not. It would likely have been a much more gradual process. However, the free market would have helped. Some businesses would have continued to refuse to serve African American customers. However, there would nearly always be rivals who wished to take advantage of that untapped market and would happily cater to these customers. Over time, these businesses would have a larger customer base and thrive far more than their racist rivals. In short, discrimination by businesses providing public accommodations would have gone the way of the dodo eventually due to the pressure of the free market combined with the inevitability that younger generations have been becoming more tolerant as a whole.

Consider the case of homosexuals and the transgendered. In general, members of this class have not had the same broad federal legislation passed to protect their Civil Rights. Nevertheless, homophobia and bigotry aimed at the transgendered is slowly but surely disappearing. Regardless of what those like Phil Robertson scream while holding a Bible, such collectivist homophobes are a social evolutionary dead end. Of course, why Christians do not take what Christ—who one would argue is the CEO of Christianity—says to be more important than what some more obscure Old or New Testament text says is unclear. “Judge not, that ye be not judged.” “He that is without sin among you, let him first cast a stone.” “A new commandment I give unto you, That ye love one another; as I have loved you, that ye also love one another.”

The conclusion here is that Title II of the Civil Rights Act of 1964 should have been ruled unconstitutional. It is violative of the natural rights to liberty and property. While this unconstitutional law did quicken the pace at which overt racism within the realm of public accommodations dissipated, it is wrong for the government to violate any natural right. Even if that natural right is the right to do something distasteful and bigoted. It may very well have taken decades longer for this positive turn of events to occur in the absence of Title II. Fortunately, it is all merely a theoretical argument now.

On Abu Anas al-Libi

by Gerard Emershaw

On October 5, American commandos in Tripoli captured Abu Anas-al Libi. Al-Libi had been on the FBI most wanted list and was indicted for his alleged involvement in the bombings of the United States Embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya, on August 7, 1998.

Commando raids are a far preferable way of dealing with terrorists than “shock and awe” military campaigns, invasions, or drone attacks which induce dread in civilian populations and often produce collateral damage. Capturing terrorists is also far preferable to killing for both reasons of justice and intelligence.

Unfortunately, the Obama administration has taken one step forward and two steps back with al-Libi. The operation and the decisions which followed it have been illegal and likely to cause blowback.

1. Violation of Libyan Sovereignty

The Tripoli commando raid was conducted without the permission or knowledge of the Libyan government. Immediately after the raid occurred, the Libyan government issued a statement indicating that the raid was conducted without its permission and seeking “clarifications” about the operation. The Libyan government declared the capture to be the kidnapping of a Libyan citizen. Given that the United States is not at war with Libya, it was illegal under international law for the United States to capture al-Libi without the consent of local and national authorities in Libya. In essence, the action was an illegal kidnapping and not an arrest. Given that it was NATO air support led by the United States which enabled the current Libyan government to overthrow Qaddafi, it is likely that had the United States dealt openly and honestly with the Zeidan government, al-Libi could have been arrested legally and extradited. If the Libyan government is unwilling to cooperate with the United States on such matters, then it raises the question of why President Obama got involved militarily in the Libyan Civil War in the first place.

2. Blowback Against Weak Libyan Government

Furthermore, such an action makes the struggling Libyan government look even weaker than it really is. Thanks to President Obama’s kinetic military action, the victorious rebels have many radical elements with connections to al Qaeda. If the current regime falls, then it is likely that Libya will become a terrorist Islamic fundamentalist state. If there was any question of how weak the current Libyan government is, this was answered when Libyan Prime Minister Ali Zeidan was kidnapped briefly in what he later called an attempted coup.

A government that cannot protect its own leader is incredibly weak, but things may soon become even worse for the Zeidan government. In the wake of the al-Libi kidnapping, several Jihadist groups in Libya vowed to seek revenge by carrying out attacks against the Libyan government, which these groups see as being a willing collaborator in the al-Libi raid. It is unclear whether the Zeidan government can withstand such attacks, and it is likely that should the current regime fall, it will be replaced by a fundamentalist Islamic government. This is the kind of blowback that Zeidan does not need right now.

3. Blowback Against the United States

President Obama could have arranged to help the Zeidan government quietly arrest al-Libi and extradite him to the United States. This would have made the capture a legal arrest while still providing the Zeidan regime with enough plausible deniability to protect itself from Jihadist blowback. Instead, President Obama is courting not only blowback against the Libyan government, but against the United States. Violating the sovereignty of an Islamic nation is just the sort of thing that infuriates Muslims and causes them to commit acts of terrorism. A more cautious approach would have allowed for far less righteous indignation on the part of Islamic extremists. In fact, a cooperative effort between the United States and Libya followed by a fair and public trial would have been more likely to reduce the possibility of blowback than increase it. Instead, the United States is beginning to rile up Islamic extremists once again.

4. Torture

Abu Anas al-Libi was placed on board a Navy warship where he was subjected to interrogation by “an FBI-led team with intelligence experts from the CIA and other agencies.” Al-Libi is not a prisoner of war, and if he were, it would be illegal under the Geneva Conventions to house him on the high seas. Is there any doubt that the government will be using “enhanced interrogation” in order to loosen al-Libi’s lips? Even if the FBI and CIA interrogators do not waterboard al-Libi—or worse—it is certain that al-Libi’s constitutional rights will not be honored. Al-Libi is likely to be brought to trial in a federal court in New York, so he deserves the very same rights that any other criminal defendant would have in federal court. This includes the right to be brought before a federal judge within 48 hours of his arrest. In addition to the Eighth Amendment right against torture, al-Libi has the Fifth Amendment right to due process.

Respecting the natural rights of even the worst terrorist suspects is necessary in order to allow the United States to keep the moral high ground. The federal government has had little trouble in getting terrorism convictions in criminal courts. It is simply unnecessary to use torture or any other illegal means. The more fairly the federal government treats Islamic terrorism suspects, the less likely it is to create blowback. When a Muslim is tortured and mistreated, many Muslims will be angered. When a Muslim is treated fairly and humanely and revealed to be a criminal, only the most radical Jihadists will be angered. This makes a big difference.

Why Al Qaeda Members Should Not Be Treated As Enemy Combatants

News that Sulaiman Abu Ghaith – son-in-law of Osama bin Laden and a top al Qaeda spokesman – has been brought to the United States after his capture in Jordan and charged with conspiracy to kill Americans has met with opposition among neoconservatives. Senator Lindsey Graham said: “I think we are setting a new precedent that will come back to bite us. It's clear to me they snuck him in, if he is here, under the nose of Congress.” Senator Kelly Ayotte agreed, saying: “If you are that close to bin Laden, we want to develop all the information that person has.” Instead of being tried on criminal charges in a United States court, these opponents of the Obama administration’s move wish Abu Ghaith to be detained at Guantanamo Bay and tried – if at all – by a military tribunal.

The strategy of fighting terrorism since 9/11 has been decidedly schizophrenic. At times members of al Qaeda and its “associated forces” are treated as criminals while at other times they are treated as “enemy combatants.” Justification for treating Islamic terrorists as “enemy combatants” is typically sought in the 2001 Authorization for the Use of Military Force (AUMF). According to those who view the resolution as a legitimate declaration of war by Congress, the United States declared war against al Qaeda. Such a declaration of war against an organization – which is not even specifically named in AUMF – is unprecedented and likely incoherent.

Treating al Qaeda as akin to a belligerent nation state during a time of war is dubious and illogical. Those who planned and carried out the 9/11 attacks and seek to plan and carry out further terrorist attacks are criminals. Plain and simple. While declaring members of al Qaeda and “associated forces” as being "enemy combatants" allows the federal government to get around the due process of the Fifth Amendment, such a move may preclude some terrorists from being justly tried in any way, shape, or form.

Can members of al Qaeda be charged with war crimes? The modern precedent for this began with the Nuremberg Trials and related trials in 1947 following the end of World War II. The Nuremberg Principles were created by the International Law Commission of the United Nations in order to codify the legal principles underlying the Nuremberg Trials of Nazis following the war. Principle VI of the Nuremberg Principles codifies crimes under international law which are associated with war. It contains three types of crimes: Crimes against peace, War crimes, and Crimes against humanity.

Principle VI
The crimes hereinafter set out are punishable as crimes under international law:
(a) Crimes against peace:
(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).
(b) War crimes:
Violations of the laws or customs of war include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.
(c) Crimes against humanity:
Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connexion with any crime against peace or any war crime.

If the “War on Terrorism” is considered a war, can members of al Qaeda be charged with Crimes against peace? This depends on whether the 9/11 attacks are to be considered part of a “war of aggression.” The problem is that “war of aggression” is a vague expression. The military campaigns initiated and carried out against Poland, France, the United Kingdom, the Soviet Union, and much of the rest of Europe is the paradigm case of a “war of aggression.” Unlike the acts of war carried out by the Axis Powers during World War II, the 9/11 attacks cannot logically be viewed as the beginnings of an attempt to conquer the United States in order to acquire territory or to carry out the subjugation of the American people. The reasons for the 9/11 attacks can best be ascertained through the words of a Osama bin Laden when he declared a Jihad against “Jews and Crusaders” in 1998:

                                    First, for over seven years the United States has been occupying the lands of Islam in the holiest of places, the Arabian Peninsula, plundering its riches, dictating to its rulers, humiliating its people, terrorizing its neighbors, and turning its bases in the Peninsula into a spearhead through which to fight the neighboring Muslim peoples. If some people have in the past argued about the fact of the occupation, all the people of the Peninsula have now acknowledged it. The best proof of this is the Americans' continuing aggression against the Iraqi people using the Peninsula as a staging post, even though all its rulers are against their territories being used to that end, but they are helpless.

                                    Second, despite the great devastation inflicted on the Iraqi people by the crusader-Zionist alliance, and despite the huge number of those killed, which has exceeded 1 million... despite all this, the Americans are once against trying to repeat the horrific massacres, as though they are not content with the protracted blockade imposed after the ferocious war or the fragmentation and devastation. So here they come to annihilate what is left of this people and to humiliate their Muslim neighbors.

            Third, if the Americans' aims behind these wars are religious and economic, the aim is also to serve the Jews' petty state and divert attention from its occupation of Jerusalem and murder of Muslims there. The best proof of this is their eagerness to destroy Iraq, the strongest neighboring Arab state, and their endeavor to fragment all the states of the region such as Iraq, Saudi Arabia, Egypt, and Sudan into paper statelets and through their disunion and weakness to guarantee Israel's survival and the continuation of the brutal crusade occupation of the Peninsula.

Viewing the 9/11 attacks as part of a war of self-defense is dubious. However, these declared reasons for Jihad center around American troops in Saudi Arabia – which remained stationed there until 2003 – and the waging of war against Iraq during the Gulf War. Even if unjustifiable as self-defense, it could be viewed charitably as quasi-self-defense. It becomes difficult to differentiate al Qaeda’s Jihad from many of the wars that the United States has engaged in since the end of World War II. It is difficult to conclude that the Korean War, the Vietnam War, or the Iraq War – whether carried out under the authority of the United Nations or not – were wars of self-defense.

Can members of al Qaeda be charged with War crimes or Crimes against humanity? The 9/11 attacks could be considered War crimes if the deaths caused are considered murder or if the destruction of the World Trade Center and of the airplanes used as missiles are considered “devastation not justified by military necessity.” Likewise the 9/11 attacks could be considered Crimes against humanity if the deaths are considered murder.

The problem is that the killing of civilians and the destruction of non-military targets have become so commonplace in modern war that it becomes difficult to differentiate murder and unjustified devastation from “collateral damage.” If the Allied bombing campaigns on Tokyo and Dresden, the atomic destruction of Hiroshima and Nagasaki, the bombing of Hanoi, and the bombing of Baghdad did not constitute War crimes or Crimes against humanity, then it becomes difficult to determine why the 9/11 attacks should. There must be more of a justification than that the winners write the history. Might makes right cannot be embraced as an ethical or legal principle.

Furthermore, while al Qaeda has clearly committed many murders and atrocities apart from the 9/11 attacks, the 9/11 attacks themselves did not rise to the level of the Holocaust or other systematic atrocities carried out by the Nazis.

The Supreme Court case Ex parte Quirin (1942) – which has been used as a precedent to justify treating members of al Qaeda as “unlawful combatants” to be tried before military tribunals – might provide some clarification. The case involved eight Germans who traveled to the United States during World War II in an attempt to commit acts of sabotage. While they wore military uniforms prior to landing, they disposed of them and were wearing civilian dress when captured. The Supreme Court upheld the jurisdiction of United States military tribunals over the saboteurs. The eight men were convicted and six of them were eventually hanged. According to the Court:

By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

In a war against a nation state, this distinction makes sense. However, al Qaeda is not a nation state and its members wear no uniforms. Treating all of its combatants as “unlawful combatants” seems bizarre when no combatants can be considered “lawful.” If al Qaeda decided to start wearing uniforms, would this suddenly make their vicious acts “lawful” acts of war? It is also important to note that the hijackers on 9/11 would be equivalent to the German saboteurs, but they were killed during the attacks – with the possible exception of Zazarias Moussaoui. However, can the leadership of al Qaeda be charged as “unlawful combatants” in the attack? The leadership did not come secretly into the United States for “the purpose of waging war by destruction of life or property.” Furthermore, many of the al Qaeda members captured were not actually engaged in combat at the time. The fact that they are not in uniform at the time is akin to a German military officer wearing civilian clothing when he was on active duty.

There is no practical downside to treating al Qaeda members and other terrorists as criminals. The United States has successfully convicted hundreds of terrorists in federal criminal courts while the military tribunals perform their work slowly if at all. There is no evidence that these trials present a danger of being targeted by terrorist attacks. Furthermore, evidence suggests that penalties handed out by judges in criminal courts are more severe than many handed out by military tribunals. The upside is that there is no risk of clothing the leadership of al Qaeda with the dignity afforded to the leaders of warring nation states. Osama bin Laden was not Jefferson Davis. Said al-Shihri was not Robert E. Lee. They were mass murderers. Treating al Qaeda and other terrorist organizations as the criminal enterprises that they are allows for any and all members to be prosecuted without risking any erosion of Fifth Amendment rights.  

Obama Will Use Drones to Assassinate Americans in the United States

Senator Rand Paul’s persistence paid off. After several inquiries to Attorney General Eric Holder, we now have an answer. The Obama administration reserves the right to use predator drones to assassinate American citizens without due process – not just overseas but within the United States. In a letter to Senator Paul, Attorney General Holder responded frankly:

It is possible, I suppose to 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. For example, the President could conceivably have no choice but to authorize the military to use such force if necessary to protect the homeland in the circumstances of a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001.

It may have been expected that Holder would mention open insurrection as a situation in which such force would be used against the American people. However, the Attorney General did not bring up that possibility. Instead, he mentions Pearl Harbor and 9/11. What is strange about this is that neither of these horrific attacks was perpetrated by American citizens.

The fact that the Obama administration has set the threshold for use of the Obama assassination policy on Americans within the United States so low creates great concern. Virtually any attack on the United States or any major terrorist event – whether genuine or a false flag – could trigger the cessation of due process and the assassination of Americans. Holder is no stranger to covert machinations as his role in the “Fast and Furious” scandal indicates.  Holder’s words also seem to leave the door open for such force to be used in the event of a major natural disaster or any widespread unrest that might occur in the wake of a possibly inevitable financial collapse within the United States.  

Another chilling aspect of Holder’s words is that he made no mention of al Qaeda. This strongly suggests that the Obama assassination doctrine is not reserved merely for one who is a “senior operational leader” of “al Qaeda or an associated force.” The Department of Homeland Security has set forth a number of absurd, puzzling, and frightening criteria by which an American might be considered a “suspected terrorist.” These include speaking out against government policies, protesting, questioning war, holding gold, creating alternative currencies, stockpiling food, supporting Ron Paul and being a libertarian, liking a Founding Father, etc. For a well documented list of links of the various government criteria for being a “suspected terrorist” see “Americans – Like Nazi Germans – Don’t Notice that All of Our Rights Are Slipping Away” on Washington’s Blog.

The bottom line is that the Obama administration has openly admitted that it is willing and able to kill Americans within the United States without due process and in the absence of an insurrection-triggered suspension of Habeas Corpus. If this does not create moral outrage throughout the Republic, then perhaps we frogs are already fully boiled.

On Obama’s Assassination Doctrine

 

According to the recently leaked Department of Justice white paper – entitled Lawfulness of a Lethal Operation Directed Against a U.S.Citizen Who Is a Senior Operational Leader of Al-Qa'ida or An Associated Force – the United States government could “use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa'ida or an associated force.” The white paper states:

The President has authority to respond to the imminent threat posed by al-Qa'ida and its associated forces, arising from his constitutional responsibility to protect the country, the inherent right of the United States to national self defense under international law, Congress's authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict with al-Qa'ida under international law.  Based on these authorities, the President may use force against al-Qa'ida and its associated forces.  As detailed in this white paper, in defined circumstances, a targeted killing of a U.S. citizen who has joined al-Qa'ida or its associated forces would be lawful under U.S. and international law.  Targeting a member of an enemy force who poses an imminent threat of violent attack to the United States is not unlawful.  It is a lawful act of national self defense.

The authority for this extraordinary power to dodge the Fifth Amendment and play the role of judge, jury, and executioner is justified by appealing to the 2001 Authorization for Use of Military Force (AUMF).

In order for the assassination of an American citizen to be authorized by the White House, three criteria must be met:

[T]he United States would be able to use lethal force against a U.S. citizen, who is located outside the United States and is an operational leader continually planning attacks against U.S. persons and interests, in at least the following circumstances: (1) where an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) where a capture operation would be infeasible—and where those conducting the operation continue to monitor whether capture becomes feasible; and (3) where such an operation would be conducted consistent with applicable law of war principles.  In these circumstances, the “realities” of the conflict and the weight of the government's interest in protecting its citizens from an imminent attack are such that the Constitution would not require the government to provide further process to such a U.S. citizen before using lethal force.

‘Imminent’ is broadly defined, stretching the meaning of the word beyond the bounds of sense:

            First, the condition that an operational leader present an “imminent” threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.  Given the nature of, for example, the terrorist attacks on September 11, in which civilian airliners were hijacked to strike the World Trade Center and the Pentagon, this definition of imminence, which would require the United States to refrain from action until preparations for an attack are concluded, would not allow the United States sufficient time to defend itself….

            By its nature, therefore, the threat posed by al-Qa'ida and its associated forces demands a broader concept of imminence in judging when a person continually planning terror attacks presents an imminent threat, making the use of force appropriate.  In this context, imminence must incorporate considerations of the relevant window of opportunity, the possibility of reducing collateral damage to civilians, and the likelihood of heading off future disastrous attacks on Americans.

The possibilities of this assassination doctrine being abused are countless. The most serious problem is the subjectivity of the criteria. Given that all is required is that an “informed, high-level official of the U.S. government” believe that a person is an “operational leader continually planning attacks against U.S. persons and interests,” there is no safeguard against mistakes. This criterion essentially equates being accused with being guilty. It is also unclear what precisely constitutes an “operational leader” or an “associated force.”

However, the nuances of the assassination doctrine need not be analyzed because the AUMF simply does not give the federal government the power to violate the Fifth Amendment by executing American citizens that appear on any “kill list.”

1. The AUMF Is Not a Congressional Declaration of War 

            A. War Must Be Declared Against a Specific Entity

The key section of the AUMF states:

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The strangest thing about the language of the AUMF is that it does no specifically name any nation against which the United States is declaring war. The Constitution grants Congress the power to declare war and this logically requires that a specific party have war declared against it. This was the practice that Congress used in previous legitimate declarations of war.

The War of 1812

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That war be and is hereby declared to exist between the United Kingdom of Great Britain and Ireland and the dependencies thereof, and the United States of America and their territories…. 

Mexican-American War

WHEREAS, by the act of the Republic of Mexico, a state of war exists between the Government and the United States…. 

Spanish-American War

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, First. That war be, and the same is hereby, declared to exist, and that war has existed since the 21st day of April, A.D. 1898, including said day, between the United States of America and the Kingdom of Spain….

World War I

That the President be, and he is hereby, authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial German Government….

World War II

That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared….

That the state of war between the United States and the Government of Germany which has thus been thrust upon the United States is hereby formally declared….

In each of these cases Congress declared war against a specifically named nation. The language in the AUMF is essentially an unconstitutional delegation of the power to declare war to the President.  By not specifying which nation the United States was declaring war upon, Congress failed in its attempt to declare war at all.

            B. There Is No Precedent for Declaring War Against   Groups or Individuals

Wars are traditionally declared and waged against nation states rather than against groups or individuals. Formal American declarations of war were made against Great Britain, Mexico, Spain, Germany, Japan, etc. Even “informal” wars – whether or not they were constitutional – were declared upon France, the Barbary States, Russia, North Korea, North Vietnam, Iraq, etc. Neither al Qaeda nor its “associated forces” are a nation state or even a quasi-nation state like the Confederate States of America or any organized revolutionary group seeking to establish itself as the formal authority of a nation state. The United States has never declared war upon an equivalent group before.  For example, Congress has never declared war upon the Ku Klux Klan, the Cosa Nostra, the Purple Gang, etc.

There is good reason to insist that war can only be declared upon a nation state or quasi-nation state. If war can be declared against any group or individual, then a dangerous slippery slope is created. Allowing Congress to declare war upon a group that is not a nation state would allow Congress to subvert due process by simply declaring war against any organized criminal group.  This is also why Congress must not be allowed to declare war against an individual. This would allow Congress to declare war against any individual against which it does not have a sound criminal case and simply assassinate him or her instead of conducting a criminal trial.

2. “Terrorists” Cannot Be Both Enemy Combatants and Criminals

The inconsistent treatment of terrorists by the United States government is a transparent attempt for them to “have their cake and eat it, too.” The government views terrorists as enemy combatants when that suits it purposes but views “terrorists” as criminals when that suits its purposes. If it wishes to claim that it has legitimately declared war upon al Qaeda and its “associated forces,” then it is obligated to consistently treat these parties in the same manner that nation states have traditionally been treated in wars. However, if it wishes to claim those terrorists are criminals, then it may not use the rules of war to deprive them of their natural rights to due process.

            A. If Al Qaeda and Its “Associated Forces” Are Enemy Combatants

If al Qaeda and its “associated forces” are to be treated as being akin to enemy nation states in wars, then a number of startling consequences result. First, 9/11 cannot be treated as a criminal act. The United States has itself declared that preemptive war is legitimate by waging military actions against nations such as Iraq and Libya without those nations having attacked the United States or imminently preparing to do so. Therefore, the 9/11 attacks would have to be treated merely as a military attack like the NATO bombings of Libya. Second, the fact that civilians were targeted in the World Trade Center is irrelevant. One of the tragic facts about modern “total war” is that civilians are targeted just as military targets are. The United States bombed civilian cities such as Tokyo, Dresden, Hiroshima and Nagasaki during World War II, Hanoi during the Vietnam War, Baghdad during the Gulf War and Iraq War, etc. There is simply nothing about the 9/11 attacks that rises to the level of war crimes if the attacks are treated as acts of war rather than as criminal acts. Finally, the leadership of al Qaeda must be treated as the leaders of any enemy nation is during a war. Viewing the late Osama bin Laden as being similar to Confederate General Robert E. Lee is indeed disturbing, but that would follow from treating al Qaeda as a nation state at war with the United States.

            B. If Al Qaeda and Its “Associate Forces” Are Criminals

If al Qaeda and its “associated forces” are to be treated as criminals, then they may not be denied due process. The Fifth Amendment applies to both American citizens and foreign nationals who are accused of committing crimes in the United States. Timothy McVeigh, Terry Nichols, Michael Fortier, Eric Rudolph, Zacarias Moussaoui, Ramzi Yousef, Eyad Ismoil, etc. were all given due process and convicted of terrorist crimes in civilian courts. There is no logical reason why current members of al Qaeda should not be treated in the same manner.  Therefore, the use of assassination in order to subvert due process is inappropriate and unconstitutional.