WASHINGTON – When regimes begin attacking a nation's most basic human rights, the government usually starts with a group that most people dislike, even hate.
These laws or traditions start with freedom from arrest or punishment without a warrant or court and public knowledge. It's called due process of law. The next categories are laws against selective, arbitrary punishment, even execution. That comes under the heading of equal protection of the law.
These codes, which are nine centuries old in English law, are enshrined in our own Constitution. But you would never know it from last week's debate between two candidates for president who hold Harvard law degrees.
Moderator Bob Schieffer asked Republican Mitt Romney for his thoughts on the Obama administration's use of drones.
“I support that [drone strikes] entirely and think the president was right to use that technology,” Romney replied. The president didn't utter a peep. It was over in 10 seconds. Schieffer had no leverage for a follow-up.
The morning after this final debate, the Washington Post published a leaked White House story with some details about a plan to keep launching these remote control weapons for the next 10 years. Deftly, the article changed basic language.
What has been known as President Obama's “kill list” will now be called “the disposition matrix.” The Bush-Cheney and Obama administrations have secretly launched hundreds of killer drones; most recently into Somalia, Pakistan and Yemen, on the call of Obama.
There is no precedent for this in Western law. Presidents Gerald Ford, Jimmy Carter and Ronald Reagan all banned political assassinations. Under President Bill Clinton, these orders were effectively neutered to deal with terrorist combatants. There is no prior review about who lives and who dies. There is no court, not even a closed-door one, looking it over. Certainly not Congress.
While it is known many innocents died in these strikes, the government has never revealed how many. Without this, it is hard to argue that Americans actively care about these collaterals.
The kill orders are up to the president on the advice of a shadowy invention of the Bush-Cheney administration: the National Counter-Terrorism Center.
This is a slippery slope that has no bottom. Political scientist Michelle Benson of the University at Buffalo asks whether such a kill list can ever be completed. The administration's “matrix,” she said, signals a perpetual state of war.
While a president's war powers make a constitutional challenge difficult, particularly under this Supreme Court, the killing of American citizens should not occur without due process, Benson said.
According to reports, this happened about a year ago. Abdulrahman al-Awlaki, the American-born teenage son of al-Qaida operative Anwar al-Awlaki, was killed in a separate drone strike from the one that ended his father's life.
UB law professor David A. Westbrook, in an email, argued, “I do not think the executive [branch] has the unilateral power to define people as terrorists and order them killed, wherever they may be.”
Westbrook said internationally there is a broader concern, that these attacks carried out in deep secrecy have made our country “untrustworthy.”
Most Americans believe that those who work to murder our own must be curtailed, even eliminated by any means. But this secret process that ignores due process, equal treatment and specific congressional consent flies in the face of our most precious constitutional guarantees.