Let me whisper in your ear ...

October 9, 2010 at 9:05 A.M. A previously corrected "error" was restored to the text. I have corrected that "error" once again. ("Time to End the Embargo Against Cuba.")

October 6, 2010 at 8:48 P.M. This essay was altered twice -- letters were removed and so on -- after I posted it. The insertions of "errors" may be expected to continue. I surmise that rumors of Iliana Ross-Lehtinen's participation in the "Lesbian Love-Fest" may have something to do with it. Keep 'em coming, Cubanazos. Keep your eyes on these blogs to see whether the Cubanazos continue to insert "errors." This level of computer crime is only possible with the assistance of corrupt officials in New Jersey and Florida. ("Fidel Castro's 'History Will Absolve Me."')

I recall reading a story by Kafka in which the protagonist awaits the "keeper of the law," that is, he stands at the "antechamber of justice" while expecting a resolution and understanding that never arrives. This short fiction by Franz Kafka -- a lawyer malgre lui -- must have served as one inspiration for Beckett and Camus, Roth and Borges. Life in America in 2010 feels like being trapped in a story by Franz Kafka, a story written while the author was on acid.

In all of Kafka's fiction one senses the plight of alienated man as the plaything of large social forces which he does not understand and to which he cannot contribute or alter in any way. This vision is nightmarish and is intended to represent the ultimate horror of juridical and democratic man and woman at the darkness engulfing the world during the twentieth century. Philip Roth's "'I Always Wanted You to Admire My Fasting'; or, Looking at Kafka," in A Philip Roth Reader (New York: Farrar, Straus & Giroux, 1980), at pp. 147-166.

The darkness -- despite the defeat of Nazism -- has now largely won. Technology has made power subtly invasive of everyone's life, as pervasive as the air we breathe and as difficult to contain. A few meagre remnants of the dignity that was to be guaranteed to everyone by law in the vision of the Framers of the U.S. Constitution and thinkers of the Enlightment -- men and women placing law and politics at the service of humanity as instruments of reason -- remain an endangered part of the legacy of humanity and the endowment of every American.

There shall be no valid state deprivation of "life, liberty or property" for any "person" -- under the explicit language of the U.S. Constitution -- without "due process of law." You cannot kill someone, take his or her property, imprison, or otherwise constrain a human being's liberty without first affording minimum due process protection to that person.

What is due process protection? Well, setting aside traditional distinctions between substantive and procedural due process along with all of the technical refinements and virtuoso games lawyers play in this area, the Supreme Court of the United States of America has made it clear that:

"Due process requires ... that there shall be notice and [some] opportunity for [a] hearing given the parties ... [T]hese two fundamental conditions ... seem to be universally prescribed in all systems of law established by civilized countries."

Twining v. New Jersey, 211 U.S. 78, 110-11 (1908).

Again:

"Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified."

Baldwin v. Hale, 68 U.S. (1 Wall) 223 (1863).

This is to say that the state or its agents can not invade someone's life, question a person subjected to hypnosis, rape, or steal from a person, monitor or follow, conduct searches of a person's home or office, slander, abuse, interfere in any way with a person's life or liberty, manufacture trumped-up charges, then offer a Mickey Mouse proceeding meant only to legitimate the crimes already committed by government against that victim. Such a farce is not exactly what the Framers had in mind by due process of law. ("Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture" and "New Jersey's 'Ethical' Legal System.")

Much less is it permissible in any democracy for government, secretly, to decide to kill someone for unexplained reasons, without affording the intended victim any opportunity to question the determination, confront witnesses speaking against him or her, usually behind the back and for unexamined motives of cupidity or greed -- if not malice -- or evaluate the evidence on which this conclusion that murder is justified is based, or to challenge the legality of the proposed government action in any way.

These juridical principles are foundational to civilized legal systems. Nothing in the latest threats in the so-called "War on Terror" should deprive us of these values or freedoms that are essential to what America is and to your moral worth as a person living in a society of laws.

To lose all rights to due process is to succumb to government terrorism. "Barring emergency" -- there is no twenty-one year emergency or ten-year "momentary crisis"! -- "at least the minimum content of the process due was largely unquestioned: notice and a hearing had to be accorded prior to any grievous governmental deprivation."

Lawrence Tribe, American Constitutional Law (New York: The Foundation Press, 1988), pp. 678-679. For the general values underlying the U.S. Constitutional commitment to legality, please see: Ervin H. Pollack, Jurisprudence: Principles and Applications (Columbus: Ohio State University Press, 1979), pp. 3-233. ("Natural Law.")

"A midnight filing by the Obama administration on Friday, asking a federal judge to throw out a lawsuit because of the so-called state secrets doctrine, again raises a troubling question. Why do the White House and Justice Department continue to invoke this severe legal tool essentially as prior administrations have used it, in the face of a considerable body of opinion that it has been abused and should be significantly reformed?"

"Shady Secrets," (Editorial) in The New York Times, September 30, 2010, at p. A38.

It is not due process for the government to say: "We have decided to kill you because of your opinions or advocacy of views that we consider dangerous -- often views that we have done our best to generate from you through things we have done to you -- but we will not tell you what specific expressions of yours we are basing this determination upon, nor who has said things about you, or what alleged opinions by others about you will serve as the basis for this conclusion made by an unidentified government official."

After a satisfied belch, a government agent may go on to explain, pleasantly enough:

"You will not have an opportunity to examine these statements by persons claiming to know you, or to be your friends and/or family members, nor will you know what promises or threats were made to these people, or when their statements were obtained, or why a decision was made to focus on you or your impermissible opinions in the first place in order to obtain these 'edited' unfavorable opinions from your accusers. If you ask for an explanation, we will claim that all such determinations are state secrets."

This "Absolute Secrecy" of governmental security decisions is what Bush/Cheney, and now Obama/Biden have claimed as the "imperial" scope of executive power in a permanent "war-like" situation despite the provisions of the Constitution:

"Everyone recognizes that there are secrets that must be protected, but the doctrine has been used to cover up illegal and embarassing acts or to avoid needed public discussion of policies. Federal trial judges sometimes fail to make the government justify its use of the privilege." (N.Y. Times.)

America's federal judiciary has grown cowardly and complacent after decades of appointments by Republican presidents of conservative judges to the appellate bench. Judges whose most powerful mission should be to protect the rights of citizens -- especially disfavored minorities, such as persons holding radical or unpopular political opinions -- are actually concerned to do the opposite. Judges want to make it easier for government to act on your life without scrutiny or review, that is, as long as you are not a multinational corporation. Yes, there are exceptions among members of the federal judiciary, but not many. The courts are failing America's people in this crisis of Constitutional values.

The federal judiciary has failed, specifically, to protect citizens' rights or the status of the law and courts as "equal participants" in forging these balances in power-struggles between freedom versus security. This failure was a great fear among early legal thinkers in America, notably Chief Justice John Marshal. Marbury v. Madison, 5 U.S. 137 (1803). (It is for courts to say what is the law and to protect the rights of individuals before the bar.)

One disadvantage resulting from selecting judges on the basis of their political loyalty and lack of intelligent opinions and/or writings -- or even lack of intelligence! -- is that we will be stuck with a federal judiciary that is timid (or ignorant) with regard to these jurisprudential challenges and the awesome responsibilities of their offices.

If the ordinary citizen does not have the protection of the courts, then he or she is effectively deprived of all rights in confrontations with the awesome power of government. Maybe this cowardice explains the ability of Cubanoids to insert "errors" in my writings. Cubanazos may intimidate judges or other officials expected to protect First Amendment rights. Scary. ("Fidel Castro's 'History Will Absolve Me"" and "Havana Nights and C.I.A. Tapes.")

Mr. Obama's administration has determined that Mr. Anwar Al-Awlaki's advocacy of terrorist actions against the U.S. or its citizens -- I have yet to see an admitted example of this so-called advocacy or actions by the ostensible "perpetrator" -- merits execution without trial for this U.S. citizen. The very idea of execution without trial of an American citizen at the hands of the U.S. government seems surreal to me.

If we are willing to execute persons without explanation for their statements of opinion or beliefs that "encourage terrorism," allegedly, how can we criticize China for jailing someone whose opinions and actions are deemed socially dangerous by that country? Please understand that I am for freeing Liu Xiaobo, but also for freeing the untried detainees at Guantanamo, Mumia Abu-Jamal, and for my own freedom of expression. (Has my computer been shut off again?)

"[A] lawsuit was filed by the father of Anwar Al-Awlaki [standing issues?] to stop the government from killing his son, who is believed [what does "believed" mean?] to be planning attacks for the branch of Al Qaeda in Yemen, where he is said to be in hiding. Charlie Savage reported in the Times [sic.] that there is wide agreement in the administration 'that it is lawful to target Mr. Awlaki,' but disagreement about the basis for requesting dismissal of the lawsuit. In the end, 'a more expansive approach' won out." (N.Y. Times.)

The fact that a person is "believed" dangerous by another person or "persons unknown in authority" is not good enough under the Constitution for government agents to kill an American citizen -- even if the official's belief is sincere -- for the victim's expressions of opinions, however critical of the government those opinions may be, nor for his alleged unspecified or unidentified actions in "planning" something that would or may someday harm Americans, allegedly. ("Richard A. Posner on Voluntary Actions and Criminal Responsibility" and "Ronald Dworkin and the Jurisprudence of Interpretation.")

"Last September, the Attorney General Eric Holder Jr. said the administration would follow new procedures 'to strengthen public confidence that the U.S. Government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests.' He said it wouldn't be used to cover up illegal or embarassing actions." (N.Y. Times.)

What a relief. For a second I thought our civil liberties were in peril. Luckily, Mr. Holder said not to worry. This "genuine and significant harm" criterion will preclude abuse. As proof that this power will not be used to cover up illegal or idiotic government actions or the blunders of officials, Mr. Holder promptly refrained from explaining how they arrived at this test or when it will be used, or why Mr. Al-Awlaki is a person the U.S. will "take out" of action -- permanently. "He must've done something," an unidentified government attorney said.

What does this so-called unofficial test require? How is this "more stringent standard" any different from the total absence of any standard if all such decisions are to be made secretly and anonymously?

Despite Mr. Holder's pronouncement in ponderous tones, this resulting situation is no different from the Twilight Zone-like reality that existed prior to these oracular pronouncements by the U.S. Attorney General. Persons may be killed in America based on the president's secret determination for a reason or reasons which need not be articulated or explained to anyone, including the victim. Gee, this sounds a lot like dictatorship or a return of the "Star Chamber." ("Fidel Castro's 'History Will Absolve Me'" and "Manifesto for the Unfinished American Revolution" then see the Michael Douglas films: "The Star Chamber" and "Wall Street.")

Perhaps we will examine the entrails of a goose on the capitoline steps to decide who will be killed next. I suggest that Mr. Russ Limbaugh poses a grave threat to the safety of Michelle Obama and all sane Americans. This is to say nothing of Mr. Rick Sanchez, whose alleged repressions of homosexual tendencies may cause him to explode with violence against harmless heterosexuals, like Jon Stewart, or any and all blond-haired women. Mr. Sanchez is said to suffer from delusions of grandeur.

I suggest that at least some objective criteria governing such determinations that an American citizen will be killed be made public and exposed to analysis and criticism. I further suggest that we monitor these continuing presidential usurpations of Americans' civil liberties in our war on the Constitution or we can kiss our few remaining freedoms goodbye.

Given the absence of rational criteria as regards Mr. Al-Awlaki and the total lack of any plausible basis for assassination of an American citizen for his beliefs and expressed opinions -- or for any reason in the absence of a trial or battlefield situation -- the decision to kill Mr. Al-Awlaki must be rescinded. Furthermore, the intended victim is entitled to an apology or even compensation. Mr. Obama, you must do better than this.