By William A Weeks and John F Weeks.

(William A Weeks served a US Government foreign intelligence agency and has been associated with US intelligence organizations for more than fifty years. John F Weeks is Emeritus Professor Economics of the University of London.)

Deadly air show: Military drones on display at Webster Field Annex of Naval Air Station Patuxent River, Maryland, 2005. Thanks to Wikipedia, entry of drones.

What our Constitution tells us

The Fifth and Sixth Amendments to the Constitution require that those accused of serious crimes receive due process including a public trial by jury. In the text of the Fifth Amendment we read, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.” Stated simply, if Congress has not declared war, citizen or non-citizen cannot be denied due process.

What of Americans who conspire against their country in peace time, “traitors”? Here the Constitution is explicit, specific and unambiguous, “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. 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.”

It is blindingly obvious that these Constitutional commitments mean that the federal government of the United States cannot take punitive action against an American citizen without going through the due process specified by our legal system. Should the accusation of treason be used as justification for punitive action, the government must produce in open court “two Witnesses to the same overt Act”.

Therefore, we should not be surprised that President Barack Obama anticipated that there might be challenges to him when he assumed the power to order summary executions of suspected terrorists by use of drones (or any other method). Following the same approach as his predecessor, President Obama sought the opinion of the chief government lawyer, Attorney General Eric Holder.

Attorney General Holder gives murder the OK

There have been times in US history when public officials took positions of principle even when these defied the President himself. For example, on 19 October, 1973, President Richard Nixon issued instructions to the Justice Department to fire Special Prosecutor Archibald Cox, hoping to prevent investigation of the unfolding Watergate scandal (it would in due course force his resignation). In what journalists called the Saturday Night Massacre, the Attorney General of the United States, and the Deputy Attorney General resigned rather than carry out the instructions (Elliot Richardson and William Ruckelshaus, respectively).

Mr. Holder seems made of decidedly different stuff than Cox, Richardson and Ruckelshaus. Choosing to offend the Constitution rather than the President, Holder produced a compliantly murderous white paper that was quickly leaked to the press (by, perhaps, a patriot somewhere in the Justice Department). [See article by Ryan J Reilly at http://www.huffingtonpost.com/2013/03/05/us-drone-strike_n_2813857.html, and articles in TRNN]

The Associated Press, not Al Jazeera, the BBC nor The Real News Network, described the white paper as a legal framework for use of lethal force in a foreign country against a US citizen. The first unlucky candidate for the distinction of summary execution of a US citizen is alleged to be a senior leader of Al Qa’ida, or Al Qa’ida associated forces.

The list of prior procedures set out by Holder for carrying out this execution can be accurately described as minimalist, reading like a parody of authoritarianism:

1. An informed high-level official of the United States Government concludes that the targeted person is a violent threat to the United States.

2. Capture of the targeted individual is infeasible. The government should continue monitoring the targeted person to determine if capture becomes feasible.

3. The operation is conducted in a manner consistent with the applicable law of war.

If this is Mr Holder’s idea of due process, he might compare it with Amendments V and VI of the US Constitution. He might even read the Magna Charta, which in 1215 prohibited King John of England from doing to his subjects what President Obama would do to us.

The three prior conditions for our government to embark on assassination would occur in secret, with no method of appeal, judicial review or even independent assessment. Placing a name on the hit-list is the arbitrary privilege of people designated in an arbitrary process, with no accountability. The entire process is subject to the political motives and prejudices of the unspecified “informed high level” government official. We do not even know what constitutes being “informed” or “high-level”, though one thing is clear. We, the informed citizens, play no role. Forget that “jury of peers” commitment in the Constitution.

The three conditions have no credibility. Even in the mad and murderous world of secret assassinations those who organize government murders have procedures intended to guide their legally-sanctioned criminality. The decision whether a “violent threat” looms, and whether the source of that threat could be apprehended derives from secret intelligence. In most cases the secret information comes from “communication intelligence”, mainly the monitoring of electronic messages (COMINT). Our government collects considerable COMINT in the Middle East every day, indeed, every hour. This information has a minimalist reliability in that intelligence operatives collect it in “real time” and its geographical source can be verified. Once the information is logged, analysts attempt to interpret its meaning.

The other main source of information, that collected by agents in the field (“human intelligence”, HUMINT) is much less reliable. Information supplied by agents drawn from refugee groups, from the political opposition and derived from professional informers is often incorrect, misleading and/or self-serving lies. We need only think back to the promises from opponents of Saddam Hussein of an overwhelmingly supportive reception for the US Forces invading Iraq.

COMINT can be reliable and the US capacity in this dark art is remarkable, arguably preeminent. It is likely that COMINT from cell phone communications played the major role in locating Osama bin Laden, not the use of torture as repeatedly suggested in the media (and in the torture justifying film “Zero Dark 30”). But, COMINT is not evidence. Because US intelligence agencies protect (or hide, depending on your point of view) sources, by its nature COMINT falls into the legal category of hearsay, unacceptable as evidence in any US court (at least, until the Constitution is amended or shoved aside).

When an operative collects COMINT in a foreign language, meaning and nuances may be lost through the translation. More problematical, for self-serving reasons, personal or institutional, the monitoring operative or the analyst may “spoof” the communication, deliberately misrepresenting it. Even when intelligence analysts use multi-intercepts and multi-sources to minimize errors, the fact remains that hearsay is not legal evidence. Basing life or death decisions on an intelligence report lead to crimes, as repeatedly demonstrated in Afghanistan when civilians who could not conceivably be linked to combatants die in drone strikes.

Under Mr Holder’s rules for murder the “informed high-level official” is left free to interpret intelligence reports based on her/his biases. Think back no further than “smoking guns” and “weapons of mass destruction” in Iraq. If our government insists on the barbarous practice of capital punishment for those it considers our enemies, it must act with some semblance of the legality our Constitution specifies.

Senator Paul takes a lonely stand

The scenario of the drone execution is not that of warfare. It is the scenario of execution of a political foe. We must not allow fear to overcome our core values. It is shocking that only one US Senator has shown the resolve to oppose publicly murder-by-drone, carrying out a thirteen hour filibuster in protest. That this politician was the ultra-Right Rand Paul should shame every Congressman and Senator who claims to hold progressive views.

[The filibuster is reported in http://thecaucus.blogs.nytimes.com/2013/03/06/rand-paul-does-not-go-quietly-into-the-night/?hp]

Senator Rand Paul, an unlikely protector of human rights. But we must take what we can get after Mr Holder’s endorsement of murder.