Charles Krauthammer’s Washington Post column this morning, which calls on Congress to enact new legislation authorizing and regulating Obama’s drone attacks, is actually worth reading. That’s because it highlights the central fact about the Obama legacy when it comes to US militarism, war, and civil liberties. Referencing the monumental shift in how Democrats think about such matters now as compared to the Bush years, he writes:
“Such hypocrisy is the homage Democrats pay to Republicans when the former take office, confront national security reality, feel the weight of their duty to protect the nation — and end up doing almost everything they had denounced their predecessors for doing. The beauty of such hypocrisy, however, is that the rotation of powercreates a natural bipartisan consensus on the proper conduct of this war
. . .
“Necessity having led the Bush and Obama administrations to the use of near-identical weapons and tactics, a national consensus has been forged. Let’s make it open.”
That Obama has ushered in a “bipartisan consensus” for these policies – transforming them from the divisive symbols of right-wing extremism into the unchallenged framework of both parties’ establishments – is indisputable, one of the most consequential aspects of his presidency.
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But Krauthammer’s real purpose with this column is to mock and excoriate Rand Paul’s anti-drone filibuster. As the New York Times describes today, there is an increasingly acrimonious split in the GOP about the policies of militarism and civil liberties enacted in the 9/11 era, and neocons like Krauthammer are petrified that the (relative) anti-war and pro-due-process stances articulated by Paul will gain traction. Krauthammer notes that, contrary to the claims of many progressives, Paul’s opposition was not merely to killing Americans on US soil, but was broader: it was about assassinating citizens without due process anywhere they may be found. Referencing a Washington Post Op-Ed in which Paul declared that “no American should be killed by a drone without first being charged with a crime,” Krauthammer writes: “note the absence of the restrictive clause: ‘on American soil'”. Here’s how Krauthammer describes Paul’s real purpose in launching the filibuster:
“Paul’s unease applies to non-American drone targets as well. His quarrel is with the very notion of the war on terror, though he is normally too smart to say that openly and unequivocally. Unlike his father, who implied that 9/11 was payback for our sins, Paul the Younger more gingerly expresses general skepticism about not just the efficacy but the legality of the entire war.”
That Paul became the first US Senator on the Senate floor to utter the name “Abdulrahaman Awlaki” – the 16-year-old US-born citizen killed by a US drone in Yemen – bolsters Krauthammer’s claim that the Paul filibuster was about more than just the use of force on US soil, but rather posed a challenge to the War on Terror premises generally. That is precisely why Krauthammer – along with all other neocons and, notably, many Democratic Party Obama-supporters – are desperate to discredit the Paul filibuster and the sentiments it stoked: regardless of Paul’s motives, the filibuster called into question both the wisdom and legality of the entire Endless War approach to Terrorism.
But to discredit this, Krauthammer makes a claim about the US Constitution that is so patently false as to be retraction-worthy. He writes (emphasis added):
“Now we’re talking about a larger, more controversial issue: the killing-by-drone in Yemen of al-Qaeda operative Anwar al-Awlaki. Outside American soil, the Constitution does not rule, no matter how much Paul would like it to.”
That italicizied claim from Krauthammer – that “outside American soil, the Constitution does not rule” – is a very common assertion and thus widely believed. But it is factually false. And there can be no reasonable dispute about this.
To begin with, think about what it would mean if Krauthammer’s claim were true: does anyone think it would be constitutionally permissible under the First Amendment for the US government to wait until an American critic of the Pentagon travels on vacation to London and then kill him, or to bomb a bureau of the New York Times located in Paris in retaliation for a news article it disliked, or to indefinitely detain with no trial an American who travels to Beijing or Lima or Oslo and who is suspected of committing a crime? Anyone who believes what Charles Krauthammer said this morning – “Outside American soil, the Constitution does not rule” – would have to take the patently ludicrous position that such acts would be perfectly constitutional.
But to see how false is Krauthammer’s claim, it’s unnecessary to engage in that kind of reasoning. The law is crystal clear on this matter. In 1957, the US Supreme Court decided the case of Reid v. Covert in which this exact question was conclusively decided: does the Bill of Rights restrict what the US Government does to US citizens on foreign soil? The Court answered the question as decisively and unambiguously as the English language permits (emphasis added):
“At the beginning, we reject the idea that, when the United States acts against citizens abroad, it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land.”
How can any Washington Post editor read what the Supreme Court said and not compel a retraction of Krauthammer’s claim?
The Court then cited both the biblical Paul’s right to demand as a Roman citizen that his foreign trial be conducted in accordance with Roman law, as well the observations of an English historian that British subjects of the Crown who went to live in settled colonies “take with them all the rights and liberties of British Subjects; all the rights and liberties as against the Prerogative of the Crown, which they would enjoy in this country”. About the fact that the US Constitution restricts what the US government can do to citizens on foreign soil, the Court thus explained: “This is not a novel concept. To the contrary, it is as old as government.”
Notably, while noting that this principle applies equally to all Constitutional guarantees when the US government acts against a citizen on foreign soil, the Court made clear that of all the rights, the guarantee of a fair trial before the state can punish or kill a citizen is the most central (emphasis added):
“This Court and other federal courts have held or asserted that various constitutional limitations apply to the Government when it acts outside the continental United States. While it has been suggested that only those constitutional rights which are ‘fundamental’ protect Americans abroad, we can find no warrant, in logic or otherwise, for picking and choosing among the remarkable collection of ‘Thou shalt nots’ which were explicitly fastened on all departments and agencies of the Federal Government by the Constitution and its Amendments. Moreover, in view of our heritage and the history of the adoption of the Constitution and the Bill of Rights, it seems peculiarly anomalous to say that trial before a civilian judge and by an independent jury picked from the common citizenry is not a fundamental right. . . . Trial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness. These elemental procedural safeguards were embedded in our Constitution to secure their inviolateness and sanctity against the passing demands of expediency or convenience.”
One can debate if one is inclined whether this applies to specific cases such as Awlaki. But Krauthammer’s general claim about the law – that “outside American soil, the Constitution does not rule” – is grounded in total ignorance. Writing in 2007 in the Los Angeles Times about Reid v. Covert and the War on Terror specifically, UCLA law professor Kal Raustiala explained: “The shield of the Constitution, the justices stated in reversing a centuries-old legacy, cannot be ignored by the executive branch simply because the accused happens to be abroad.”
Aside from the fact that the Washington Post should not be publishing clear factual falsehoods about the state of the law, the reason this matters so much is that distorting the Constitution is the key tactic for inducing public acquiescence to its violations. As I’ve documented before, many of the War on Terror abuses have been justified with the equally false claim that the US Constitution applies only to US citizens and not to foreign nationals on US soil and US-controlled territory (such as at Guantanamo).
The War on Terror has been and continues to be, above all, a war on the most basic liberties and political safeguards that we’re all taught are what distinguishes the US and keeps it free. One major reason that has happened is because patently false claims about those rights have been systematically propagated. Having the Washington Post publish Krauthammer’s false claim that “outside American soil, the Constitution does not rule” is a particularly egregious example of that behavior.
Erasing the Jose Padilla case from history
Like so many people who defend Obama’s War on Terror policies and mock Paul’s filibuster, Krauthammer suggests that the very idea that the US government could treat a US citizen on US soil as an enemy combatant and thus punish them without due process is so absurd as to be paranoid to even raise the question. Does anyone remember the Jose Padilla case: in which the Bush administration, in 2002, detained this US citizen, on US soil; declared him to be an “enemy combatant”; and then proceeded to imprison him for the next 3 1/2 years without charges or trial – all with little public resistance and, ultimately, endorsement from a right-wing court? Was Charles Krauthammer objecting to any of that? Were all of the people now claiming that it’s paranoia to think that the US government would use war power theories against a US citizen on US soil marching in the streets in protest over this? The answer is: no.
The US government has already asserted the very theory that many now mock Paul for asking about, and did so with very little resistance, including from the courts. It’s true that they did not kill Padilla, but the theory used to imprison him for years without charges – the president is empowered to declare anyone he wants to be an “enemy combatant” without charges and trial and then punish him as such: including US citizens found on US soil – is precisely the theory that would justify targeting US citizens on US soil for an Awlaki-type strike. Indeed, that is the theory invoked to justify the killing of Awlaki, and there is no cogent way to exclude US soil: since the entire globe is a battlefield, the president has the unilateral power to detain or kill anyone he wants, including citizens, without charges. To pretend that this is so beyond the pale of what US political culture would tolerate is to exhibit serious naïveté and/or ignorance of recent history.