There’s treachery afoot. It is cloaked in the flag, pushed by people sworn to uphold the Constitution, and it cuts across the political divide, but there it is just the same.
On December 1, 2011, Obama Administration lawyers declared to the press that American citizens are legitimate targets in the Administration’s “War on Terror” and that the executive branch alone has the authority to determine who is and is not an enemy. These are not just empty words bandied about for political gain, for the Administration also argues that executively-designated “enemies” forfeit the protections of the Bill of Rights and all access to civilian courts. They can even be killed without charge or trial, as American Anwar al-Awlaki found out on September 30, when a U.S. drone assassinated him.
Despite the immense breadth of this newly-asserted executive power, it has found broad support on both sides of the aisle and in all three branches of government. Congress passed the Authorization of Use of Military Force shortly after 9/11 which purported to grant broad discretion to the President to conduct the “War on Terror” as he saw fit. The federal courts, when asked by al-Awlaki’s father to grant an injunction against the assassination of his son, responded by claiming that these matters were outside the scope of the judiciary and to be resolved in the “political branches.” Thus, all three branches appear unified in their position that the Bill of Rights is the President’s, to do with as he pleases.
Across the aisle, Republican presidential candidates, minus Ron Paul, line up time and again to push for a reduction or complete abdication of the protections afforded by the Constitution to Americans accused of terrorism-related wrongdoing. In the recent CNN National Security Debate, Mitt Romney and Newt Gingrich, GOP frontrunners, insisted that we must not think of these Americans as criminals but as wartime enemies. Gov. Romney argued:
“we’ll use the Constitution […] for those people who commit crimes, but for those who […] pursue treason of various kinds, we will use instead a very different form of law, which is the law afforded to those who are fighting America.”
What Gov. Romney may not realize is that the law afforded to Americans suspected of fighting America is the U.S. Constitution, Art. III, sec. 3 of which explicitly states:
“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.”
If terms like “convicted,” “treason,” “testimony,” “witnesses,” and “open court” have a legalistic air to them, it is for good reason: Article III of the Constitution establishes the judiciary authority of the United States. The Constitution explicitly delegates the handling of Americans suspected of making war against the United States to the judicial branch, not to the President or the Congress.
While such structural ignorance is to be expected on a political landscape in which no one wants to appear “soft on terror,” the ramifications of this concentration of power in the hands of the President are obvious, dangerous, and precisely the types of evils the Constitution was designed to guard against. If the separation of powers is to mean anything in the American context, it must mean that no one person can be granted the simultaneous powers of judge, jury, and executioner.
If the government gets its way, the word “war” will become a talisman, the mere invocation of which by the President will wipe away the Constitutional barriers protecting our liberties and our lives. Every president, congressman, and judge swears an oath to protect and defend the Constitution (not, notably, the people) of the United States against all enemies, foreign and domestic. The idea that the President alone can decide to which Americans the Constitution applies stands as a complete abdication of the oaths of all those leaders expressing it. If such perversity serves the Constitution at all, it does so only in that it demonstrates what a domestic enemy of the Constitution really looks like.