"And when the last law was cut down, and the devil turned round on you, where would you hide, the laws being flat?"
--Sir Thomas More (A Man for All Seasons)
Cogent and instructive monologue by the judge in follow-up to his previous night's comments. In legal terms, the killing of bin Laden was an extra-judicial killing. This means that the government killed someone who was not on a battlefield, who did not pose an immediate threat to the freedom or security of any people that the government protects, and that the killing was not a punishment ordered as a consequence of a trial.
All western countries have laws that make this criminal. The reason why extra-judicial killing has been made illegal is because, under our system, the government cannot decide who to kill without following its own law. Following the law requires due process. Due process means that, before the government can take life, liberty, or property from anyone, it must prove to neutral persons that its target is unworthy of that life, liberty, or property because of something that the person did that caused harm.
The Constitution was intended to limit government and guarantee due process. Killing bad people without lawful authority is outside the confines of the Constitution and outside of the rule of law.
What is the rule of law? It is the fundamental principal that the laws apply to everyone and in all instances. This means that emergencies, vengeance, political advantage, or persons in power are irrelevant to the law. Everyone must obey the law, whether janitor, soldier, or president.
President Nixon once famously argued that if the president does it, it is not illegal. That is dead wrong according to the founding principals of this country. Under the rule of law, the president is not a king who wields discretionary power. By definition, discretionary power unequally distributes rights. This country's founders understood that the people's rights could only be protected under the rule of law, not the arbitrary rule of men.
The judge brilliantly quotes from Robert Bolt's A Man for All Seasons. Listen carefully to the passages, for they have great relevance to what is happening today.
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8 comments:
Whether or not he was on a battlefield and whether or not he posed an immediate threat to the US or its protectorates is really a matter of opinion.
There are no distinct battlefields in this war like there were in the Revolutionary War. Soldiers are fighting this war on the streets against an enemy who looks like everyone else. bin Laden brought the battlefield to us when he attacked America on 9/11. He has proven to be not just a great threat to America, but an actual perpetrator in our country and in our protectorates.
I'm guessing we won't agree on this one. Maybe I'll stick with cell biology.
Katie
And believe me, I'd be heading up the parade if Obama ordered ALL of the troops home today.
Katie
No, opinions are merely claims. Such claims require a reasoned weighing of evidence in order to be valid. Govt action driven by empty claims is discretionary rule.
What evidence suggests that BL posed an immediate or great threat at this time that justified the use of lethal force? I can find no compelling evidence presented in the president's Sun nite speech, a speech I have now read a half dozen times.
I used to rationalize this 'war on terror' using the same 'the enemy is everywhere' argument that you offer above.
But if you justify this assault under the rationale that the battlefield is 'everywhere' and the enemy wears no marker, then what stops govt from going after the life, liberty, and/or property of anyone anywhere in the name of 'national security?'
Matt, by your line of thinking here, the wars we are currently waging are illegal. Why are you just focusing on this part of it?
And let's pretend you are a lawyer prosecuting the President for murder. The burden is on you to prove that there was no immediate threat, not for his defense to prove there wasn't.
Article 1 Section 8 of the Constitution authorizes only Congress to declare war. Congress has not declared war since December 8, 1941.
Any wars that we have since entered into must be construed as illegal.
Now what of those "hundreds" of cases of presidential war-making? This argument — surprise — originated with the U.S. government itself … The claim that the president may act with a free hand in foreign affairs, dispatching troops and committing them to offensive operations at will is … absolutely indefensible.
~Thomas E. Woods Jr.
Indefensible in the context of liberty. Defensible in the context of despotism/empire...
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