Something to Go Galt About

So we all agree that it’s precipitous, or maybe something more pejorative, to withdraw from society over the dire threat of a tax increase that puts us back to the levels in place during the Clinton administration.

What if the government asserts the power to kill American citizens outright, with no due process or even pretext of judicial review, at any time, at any place? What if, after asserting that power, it actually does so?

If you don’t go Galt about this, then don’t bother going Galt about anything. Glenn Greenwald writes:

It was first reported in January of last year that the Obama administration had compiled a hit list of American citizens whom the President had ordered assassinated without any due process, and one of those Americans was Anwar al-Awlaki. No effort was made to indict him for any crimes (despite a report last October that the Obama administration was “considering” indicting him). Despite substantial doubt among Yemen experts about whether he even has any operational role in Al Qaeda, no evidence (as opposed to unverified government accusations) was presented of his guilt. When Awlaki’s father sought a court order barring Obama from killing his son, the DOJ argued, among other things, that such decisions were “state secrets” and thus beyond the scrutiny of the courts. He was simply ordered killed by the President: his judge, jury and executioner. When Awlaki’s inclusion on President Obama’s hit list was confirmed, The New York Times noted that “it is extremely rare, if not unprecedented, for an American to be approved for targeted killing.”

Cato Unbound looked at the issue in June. Here’s Ryan Alford:

Our due process rights are not found only in the Bill of Rights: the Framers thought that certain rights were so vital that they included them in the unamended Constitution. These antecedent rights are found in the Constitution’s “forgotten clauses”: the Bill of Attainder Clause and the Treason Clause. Conversely, the rights to trial by a local jury and to be secure from unreasonable search and seizure were not included in the unamended Constitution—despite being within the first rank of the issues for which the American Revolutionaries fought and died.

A bill of attainder was an act of Parliament that condemned a citizen to death. These were so odious to the Framers that a ban on these acts was placed in the Constitution’s Article I, which states that “no bill of attainder … shall be passed” by either the federal government or the states. This is one of the few unconditional due process rights: whereas one is protected only against “unreasonable searches” or “excessive bail,” attainder was unambiguously abolished…

While the clause explicitly bans bills of attainder, but not executive acts that would work the same evil, no respectable historical argument could be made that the Constitution allows the latter (by exclusio alterius) while abhorring the former. The Framers belonged to a legal and political tradition that was deeply concerned about overweening executive authority, and which fought relentlessly against the invocation of any prerogative related to matters of state for denying certain suspects due process. The Star Chamber (a court controlled by the executive branch), was a byword for tyranny for the revolutionary generation, and besides Locke, no one was cited in the revolutionary pamphlet literature more often than Edward Coke, who epitomized the struggle against the extraordinary prerogative and executive detention in the seventeenth century.

Additionally, the Framers needed only to proscribe bills (and not executive acts) of attainder because there had been no executive death warrants issued in England for over four hundred years; Edward III’s admission that the Great Charter could bind the king guaranteed that no one would be attainted without the assent of Parliament. Magna Carta, in addition to providing for trial by jury, committed the king and his successors to the promise that he would never “attack [any free man] or send anyone to attack him, except by the lawful judgment of his peers.” By 1787, this principle was so deeply embedded in English legal thought that Blackstone thought that if a king were to ignore it, he would surely ignite a lawful and successful revolution: “To bereave a man of life . . . without accusation or trial, would be so gross an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom.”

That evil has now befallen us.