The ACLU and Obama’s Assassination Program

Due process and judicial process are not one and the same.  The Founders weren’t picky.  Trial by jury, trial by fire, rock-paper-scissors – who cares?

— Stephen Colbert, March 6, 2012

The policies around the assassination program of the United States are surreal.

Trafficking in murder while espousing noble things is a habit regimes fall into, though the more sinister ones tend to use weasel words to conceal that fact.  The Obama administration, having long abandoned its role as the knight in shining armour, is now rusting away with the effects of realpolitik.

The ACLU has been trying through Freedom of Information channels to force a disclosure of the guidelines the administration uses in targeting foreign nationals or American citizens through the infamous drone program that has become de rigueur in military circles.  The CIA has insisted that it cannot confirm or deny the existence or non-existence of those records that cover the targeting of individuals, or whether it is even employing such vehicles in the first place.  They are “intelligence sources and methods information that is protected from disclosure by section 6 of the CIA Act of 1949, as amended”. In such circles, the response is termed the Glomar response, after the CIA’s refusal in 1976 to confirm or deny its relationship with Glomar Explorer, a drill ship created at the direction of Howard Hughes for the agency to recover the sunken Soviet submarine, the K-129.

In the words of Jameel Jaffer of the ACLU, as reported by Salon (March 26).  “At this point, the only consequence of pretending that it’s a secret program is that the courts don’t play a role in overseeing it.”  With the courts left out in the cold, the administration can run riot.  This, of course, is its self-appointed prerogative.

The Obama administration is engaging in a lexical game of murder, a game that has certainly silenced many of those who would have expressed outrage at the assortment of abuses perpetrated by the Bush administration.  Tinker with the words, and the result is considered perfectly justifiable in the name of a higher state interest.  This is Cheney with the gloss, Rumsfeld with the polish.  Adjust the terms of reference, and assassination is an entirely rum thing.

Obama’s front man in this entire business, in true tasteless fashion, is Eric Holder.  Instead of defending the law as is the incumbent duty of any Attorney General, he has a nasty tendency to get sick on it.  He brings in his broom to clean up, and in its place he leaves the slime of gibberish. At Northwestern University Law School, he clearly repudiated the position he had taken regarding the Bush administration, whose policies in the ‘war on terror’ had occasioned ‘needlessly abusive and unlawful practices’.  That, however, was in 2008.  The new Holder was a different beast, more prone to splitting hairs.  ‘Due process’ and ‘judicial process’, we are made to realise, ‘are not one and the same’. The President, according to Holder, is not required to seek permission from any court before targeting American citizens abroad (Washington Times, March 12).

Supposedly, the targeting of such individuals is constrained by guidelines.  The problem with such dangerous talk is that guidelines are merely points on paper, the scrawl of the moment. They have a tendency of disappearing as quickly as they appear.  These guidelines tend to revolve around the nature of the target (an operative of a terrorist group seeking to actively kill American citizens, for one; that the target poses an imminent threat to the US; that the capture of the target is impractical; and that the target is to be eliminated on the basis of ‘relevant law of war principles’ (Washington Times, March 12).  Such determinations do not lie in the legal domain.  They are rather matters of political expediency.

An administration up to its eyeballs with legal rhetoric is bound to eventually be told it has no clothes, that its efforts are simply acts of distortion.  The time it seems, courtesy of the ACLU’s efforts, is now.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne and can be reached at: Read other articles by Binoy.