Death and Law.

December 15, 2010 at 9:14 A.M. Several "errors" were inserted in this text overnight. I have corrected them. I understand that interesting developments are taking place in Hudson County, New Jersey. Several persons are facing arrest. I suggest that you get a good lawyer. The best is yet to come. To my knowledge, Judge Bates is not Jewish.

December 14, 2010 at 9:44 A.M. Due to obstructions to my cable signal, it was necessary to reboot my computer in order to reach this site today. I will continue to struggle to write from public computers this afternoon. I cannot say how many essays have been vandalized overnight. My discussion of Ronald Dworkin's jurisprudence was altered and defaced, again, yesterday. I have done my best to make all necessary corrections. American authorities are "unable" to prevent this "censorship and computer crime," allegedly. Spacing of paragraphs was affected in this essay. Most of what follows will probably be plagiarized soon. ("What is it like to be plagiarized?" and "'Brideshead Revisited': A Movie Review.")

Seymour Hersch, "The Online Threat," in The New Yorker, November 1, 2010, at p. 44. (We are not ready for the computer wars that are coming our way.)
Deepa Kumar, "The Rise of Anti-Muslim Hate," in International Socialist Review, November-December, 2010, at p. 13. (Mr. al-Awalki's name will be altered, periodically, in this essay to hurt me and/or out of hatred for Islam by New Jersey legal officials, I believe, which explains why cyberwars are coming our way. There was always a great deal of hostility to Muslims among New Jersey judges.)
Tariq Ali & David Barsamian, Conversations With Tariq Ali: Speaking of Empire and Resistance (New York & London: The Free Press, 2005), pp. 123-173. ("The Enablers of Empire.")
David Rose, Guantanamo: The War on Human Rights (New York & London: The Free Press, 2004), entirety.
Arundhati Roy, Power Politics (Cambridge: Southend Press, 2001), entirety.
Jean Paul Stevens, "On the Death Penalty," in The New York Review of Books, December 23, 2010, at p. 8. ("Let us take the great civilizing step of ending the death penalty." Albert Camus.)
David Gartland, Peculiar Institution: America's Death Penalty in an Age of Abolition (Cambridge: Harvard University Press, 2010). (Here's why we should end the death penalty.)
Steven Lee Myers, "More Christians Are Fleeing Iraq in New Violence," in The New York Times, December 13, 2010, at p. A1. (A society is falling apart before our eyes and we are making things worse.)
C.J. Chivers, "6 Americans Killed by Bomb at a New U.S.-Afghan Outpost," in The New York Times, December 13, 2010, at p. A6. (More and variable attacks are expected in Afghanistan and Pakistan with a refreshed Taliban drawing recruits from "elsewhere" in the Middle East and throughout the world.)
"Names of the Dead," in The New York Times, December 13, 2010, at p. A6. (4,420 Americans killed in Iraq; 1,411 have died in Afghanistan; well over one million total casualties resulting from these conflicts, including 500,000 children -- so far. $1 BILLION per month in monetary costs.)
Joy Gordon, Invisible War: The United States and the Iraq Sanctions (Cambridge & London: Harvard University Press, 2010), entirety. (A generation of Iraqui youth are growing up utterly hopeless and without connections to the outside world. This is a dangerous situation that will create many more suicide bombers.)
"Judicial Scrutiny Before Death," (Editorial) in The New York Times, December 13, 2010, at p. A24. (Murder by order of the U.S. Chief Executive is still murder.)
Lawrence Tribe, American Constitutional Law (New York: The Foundation Press, 1988).
Lawrence Tribe, God Save This Honorable Court: How the Choice of Supreme Court Justices Shapes Our History (New York: Random House, 1985), entirety.

"The Obama administration no longer has to worry about an immediate legal challenge to its policy of targeting terrorists, including American citizens, for assassination. A federal judge threw out a lawsuit brought by the father of Anwar al-Awalki, an American citizen hidden in Yemen who is on the government's target list. He [the judge] said the father had no standing to sue."

Why not provide readers with the name of this judge in the first paragraph of your editorial? This way we will know to whom you are referring when you say that "he" decided to throw out the lawsuit. Just a suggestion. This is The New York Times?

"But the administration should remain very worried about the moral implications of its policy, [-- the legal implications continue to be even more ominous --] which were sharply questioned [sic.] by the judge [,] John Bates of the United States District Court for the District of Columbia, as he dismissed the suit. Among the many unanswered questions raised by the lawsuit, he wrote, is this one: 'Can the Executive order the assassination of a U.S. citizen without affording him [or her] any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization?' ..."

The difficulties surrounding this debate regarding the scope of presidential war powers is the lack of focus on alternative implications of the controversy. In other words, merely because presidential power during wartime is an "issue" in a Constitutional controversy does not mean that no other issues are present. It is not all that clear that this case raises questions that concern the president's war powers, primarily, in isolation from issues pertaining to the individual's relationship with government power and other central concerns of the Bill of Rights.

"Even though the Supreme Court speaks only when deciding actual cases" -- this is something for the New Jersey Supreme Court to try! -- "its discourse is sometimes conducted at a higher level than literally necessary for the resolution of the particular disputes in question. The Justices speak in resonant tones on themes that transcend the outcome of a given controversy, and go to the very heart of what we are as a nation. For this reason the Supreme Court has been called 'the schoolmaster of the Republic.' ..."

Lawrence Tribe, God Save This Honorable Court, at p. 27.

I hope that Mr. al-Awalki's case will reach the highest Court in the land. We need instruction on these issues. Even the president's war powers are not unlimited under the Constitution. To understand why this is so, please see the final section of this essay. An American president cannot, for example, decide to alter the balance of power of the coequal branches of the government by dissolving the Supreme Court, or removing members of Congress who disagree with his or her decisions, or increasing the number of Senators in order to put his people in those "spots," as they say in New Jersey, even in the course of fighting a war.

I wish to raise some difficulties pertaining to the current understanding of this al-Awalki litigation along with the package of interpretations presented to the public as "how we should think about" this case. These sanctioned "interpretive constructions" are convenient for the powerful and much less beneficial to ordinary citizens. But ordinary citizens are the Constitution's primary concern in terms of "protections" from excessive or overweening state power. Let us focus on four issues: 1) standing; 2) individual and state relations as envisioned under the Bill of Rights; 3) courts and secrecy; and 4) due process of law as "balancing" governmental power.

Standing: The federal judge in this matter determined that the father of the threatened individual "lacks standing" to contest this determination that his son will be killed by the United States because, presumably, his son's statements have given assistance to the "enemy" in our current war. This person, Mr. al-Awalki, resides not in Iraq or Afghanistan -- not even in Pakistan -- but in Yemen. The United States is not at war with Yemen. In fact, there is no declared war with either Afghanistan or Iraq. There was a vote to allow or legitimate what was, essentially, a police action by President George W. Bush to remove "weapons of mass destruction" in Iraq and to pursue Mr. bin Laden in Afghanistan.

Presumably any American citizen -- including a person living in London or Paris, Moscow or Beijing -- would be subject to assassination by American military personnel provided that the American president decides, for unknown or unarticulated reasons, that such persons are "threatening" to U.S. security interests. The concerns of the host nation or provisions of international law are "irrelevant" to the legality of this decision according to advocates of the "imperial presidency."

This was certainly Joseph Stalin's position concerning opponents of his regime in the thirties in the Soviet Union. I see no difference between the power claimed then by Stalin and what Mr. Obama -- and before him, Mr. Bush -- have sought in the way of "war powers" today in America and the world. ("U.S. Courts Must Not Condone Torture.")

If a person -- let us assume that the federal judge deciding this case, "John Bates," is a person or human being -- happens to be a parent, then he or she will understand that one's children or any young people, often even as adults, say stupid things or hold opinions that we do not share. No one alleges, to my knowledge, that the young man in question shot someone or has transported arms, or engaged in such criminal actions on the battlefield. The secret decision to kill an American pertains exclusively to statements made by the young man in a foreign country that "lend support to or encourage terrorist actions against the U.S. and its allies."

Mr. al-Awalki is entitled under the First Amendment to hold and express any opinion, especially with regard to political or religious matters. If the individual in question, Mr. al-Awalki, is "yelling fire in a crowded theater" and is not subject to free speech protections, then you must bring that accusation against him in a court of law and allow him to respond before any action is taken against him. Mr. al-Awalki cannot appear to contest this decision or he will be killed. However, his father will be denied standing to object on his son's behalf. This is to decide that the person and also the victim's legal identity, as a human being, will be obliterated. This sounds like dictatorship to me.

Mr. al-Awalki is nothing -- legally, a non-entity -- without weight or presence in an American courtroom de facto to challenge his own proposed murder at the hands of the state acting outside the boundaries of law. I am in a similar position as regards daily censorship of my views by N.J. government agents or their friends. This outcome is the opposite of what the Framers of the Constitution envisioned in terms of the relation between any individual and government. ("Richard A. Posner on Voluntary Actions and Criminal Responsibility.")

If the person to be killed resides in a foreign country, then there is no jurisdiction for America to carry out a death sentence on foreign soil nor can the U.S. decide that statements made by a person in another country entitles the U.S. to kill that individual when he visits or returns to America.

In the real world -- which is not the place you learn about in law school -- we all know that hurting a child is also hurting a parent. Injuring any person I love is injuring me. Of course, a person has standing to protest that he or she is one affected person, or the injured party, when a loved-one will be killed by the state. Even prisoners have the right to love and receive love, to think and speak, to basic human dignity and moral concern from others.

Hypothetically, let us ask Judge Bates what he would feel if someone were to kill his child? Would Judge Bates not feel aggrieved and entitled to be heard concerning the injury he had suffered from the murder of his child by a government official? I certainly feel injured when persons threaten or hurt my child, or anyone I love. How can I imagine that others feel differently about this matter? Has Judge Bates left his common sense and humanity outside his courtroom in deciding this case? And yes, those feelings and recognition of genuine aggrievement are relevant considerations in determining standing in a law suit. ("Law and Morals" and "What is Law?")

To kill my child is to hurt me, "permanently and severely" in the words of "wrongful death" statutes and other American civil laws providing damages to individuals hurt, indirectly, through injuries suffered by others, including those enduring emotional damages, as in cases concerned with the tort of "outrage" or "intentional infliction of emotional distress."

Setting aside the legal mumbo-jumbo and subterfuge, it is obvious that this father of a threatened child is articulating a genuine legal claim of potential and actual harm based on the threat to his son's life. Deciding that there is no right for this father of a threatened son even to be heard in an American courtroom will be perceived by most Americans (who are fair-minded) and the majority of people in the world as not only mistaken, but absurd.

Individual/State Relations. The judge in this matter has to pretend not to know this fact of human connectedness (as in his own family relations, perhaps) in order to escape the reality before his eyes, so as to enter a maze of legal technicalities that are about obfuscating what the world sees all too clearly: America is setting aside its tradition of protecting the individual in order to reinvent the relation between the individual and state in favor of the latter. This evolution is highly dangerous to everyone's civil liberties.

The Framers of the American Constitution -- especially the Bill of Rights, were reacting to centuries of struggle in England for individual rights against monarchs and kings who claimed totalitarian power (Hobbes) derived from God. Hence, this Monarchical power was unquestionable, unexplained, decisions were made secretly by special Star Chamber-like servants of the crown to protect that absolute power and not for the good of the people. ("Roberto Mangabeira Unger's Revolutionary Legal Theory" and, again, "Richard A. Posner on Voluntary Actions and Criminal Responsibility.")

The Framers insisted that, in America, government must operate under the rule of law, in accordance with restrictions upon its use set forth in public rules and laws that all free persons could read. No one was to be denied due process, habeas corpus, because fundamental liberties were not a "concession" of the rulers, but a recognition of what is meant by a person. ("Is there a gay marriage right?")

Justice Robert Jackson, who later presided over the Nuremberg trials of Nazi war criminals, reaffirmed the American dedication to freedom of thought in his 1943 decision in West Virginia Board of Education v. Barnette: "If there is any fixed star in our constellation, it is that no official, high or petty, can precribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. [There is no 'political correctness' oath in America.] If there are circumstances which permit an exception, they do not occur to us."

319 U.S. 624 (1943). Lawrence Tribe, American Constitutional Law (New York: The Foundation Press, 1988), pp. 1170-1172.

These rights and liberties of persons were the endowment of human beings who must be treated, invariably, as "equals before the law" no matter who the person to be sanctioned might be. It does not matter whether the ruler seeking unconstitutional power is a "nice guy" (Obama) or a "not-so-nice guy" (G.W.). The debate is about a principle of human dignity that requires the accountability of power to the law, especially the most important law in the land. The wrong to the Constitution resulting from Obama's illegal assassination power is the usurpation of the authority to sidestep all of the protections of the Bill of Rights regardless of the identity of the victim or victims. ("Ronald Dworkin's Jurisprudence of Interpretation.")

No person may be "deprived of life, liberty, or property without due process of law." Human liberty demands this respect for even the humblest person in the nation and (I believe) in the world. This is what we ask others to do in China and Russia, Cuba and Korea. Hypocritically, we set aside these principles when we decide for unknown reasons that they are inconvenient to our so-called "security." Wrong. These principles ARE America's security. Freedom. Equality. Dignity. These legal rights are the baby; military power is the bathwater. Mr. al-Awalki and his father must have their day in court.

Courts and Secrecy. It is very dangerous for courts or officials to operate "secretly." Persons affected by decisions must be permitted to speak concerning allegations made about them which may serve as the basis for decisions affecting their lives. Such allegations may be based on envy, malice, stupidity, ignorance, factual or interpretational inaccuracy -- or bribery, as in New Jersey. ("New Jersey's Office of Attorney Ethics.")

Allegations may be knowably (or unknowably) false and may damage persons for life if they are unchallenged. Persons have the right to challenge accusations and those who make them. To deprive a person of such rights to confrontation is to deny him or her fundamental humanity. We have seen in the twentieth century where the assembly line view of persons as legal "objects" has led. It is not a pretty destination. It is called Dachau or Auschwitz. This is where persons deprived of their humanity through enslavement and torture or rape are placed -- in Auschwitz. ("Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture.")

Given America's history with race-based slavery, it is particularly surprising that America's first African-American president should seek this unique power of life and death over dissidents or slavery for detainees in concentration camp-like settings. Mr. Obama must never allow for censorship, suppressions of speech, or torture of dissidents at home, persons (like me) who are critical of mainstream views in society. ("What is it like to be censored in America?" and "What is it like to be tortured?")

The name of Mr. al-Awalki has been altered several times in this essay by New Jersey's hackers then corrected by me. This is part of the frustration-inducement effort against me. More ominously, these tactics reveal a sanctioned hatred for Muslims in America that is sick and highly dangerous, especially when it comes from Jews: "This ideology is best understood as a form of cultural racism that represents the Muslim 'other' as untrustworthy, violent, misogynistic, and undemocratic." Deepa Kumar, "The Rise of Anti-Muslim Hate," in International Socialist Review, November-December, 2010, at p. 13, pp. 16-17.

The same cultural racism suffered by Muslims today has victimized Jews in the past. The residents of Auschwitz did not have claims to due process or dignity because, under Nazi laws, they were "sub-human" and not legal subjects with what Rommen and, later, Kelsen (who found these provisions deeply offensive as a German jurist) called: "zones of moral entitlement." I had the privilege of knowing someone who studied under Kelsen. I discussed these matters with that legal scholar, who happened to be a Republican. I am certain that he would have agreed with what I am saying in this essay. The legal plight of detainees at Guantanamo becomes an obvious analogy. (Please read Gore Vidal's essay "Pink Triangle and Yellow Star" then see: ''The Reader': A Movie Review.")

No torture. No censorship. No slavery. These general principles of law have been put in place by generations of American and English men and women making the ultimate sacrifice for their children's sake, subject to very few well-defined and limited exceptions. This costly and painful achievement of freedom is what still makes America -- at its best -- the world's great good place and gift of God (if you wish to use religious language), or the finest achievement of the human political imagination. ("Manifesto for the Unfinished American Revolution.")

The freedom of the "English-speaking peoples" (Winston Churchill) is endangered today much more from the actions of our own governments than from anything that Al-Qaeda or the Taliban can do to us. Richard Nixon, a Republican favorite, once pointed out that neither "the Viet Cong nor any earthly enemy could humiliate or deprive Americans of freedom and equality before the law, only Americans can do that."

We seem to be determined to deprive ourselves of the freedoms won by our ancestors, which will make us less and not more secure, in order to derive the false comforts of a sham security and dangerous xenophobia.

Due Process of Law and Dangers of Power. Why the fear of power on the part of the Framers? Power is understood in the Anglo-American tradition as a "ravenous beast." Power always grows if unchecked, seeks greater territory and scope. Like a tumor, power will inevitably devour the host organism. Power must be subject to the rule of law in a free society.

Free societies cannot make accomodations with totalitarianism. It may be necessary for a Chief Executive to take illegal actions, secretly, but then they must be understood to be exactly that -- illegal. If such actions are made public, then the responsible official of the government must accept responsibility for whatever consequences ensue. It is absurd to label crimes by government as legitimate legal deprivations. It is not, to refer to Mr. Nixon again, necessarily "legal if the president does it."

Mr. al-Awalki and his father must be permitted their day in court. I hope that an appellate tribunal or the U.S. Supreme Court will understand all that is at stake in this case. This may be a good moment to insert further "errors" in this essay, New Jersey.

"The principle that animates the Bill of Rights, including the First Amendment, is that there are certain freedoms that are fundamental in determining the kind of society we wish to be. These freedoms must be protected from political compromise, and even democratically elected governments must fully respect them. In light of this principle, it is perfectly sensible to see the shield of the First Amendment as a bulwark of freedom against presidential as well as Congressional acts. Indeed, it would be indefensible not to."

Tribe, God Save This Honorable Court, at p. 43.