How Extremism is Normalized: Obama's Radical Interpretation of The Bill of Rights

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Salon.com

How Extremism is Normalized: Obama's Radical Interpretation of The Bill of Rights

There is one important passage from yesterday’s big New York Times article on President Obama’s personal issuance of secret, due-process-free death sentences that I failed to highlight despite twice writing about that article. The fact that I did not even bother to highlight it among all the other passages I wrote about is itself significant, as it reflects how rapidly true extremism becomes normalized:

That record, and Mr. Awlaki’s calls for more attacks, presented Mr. Obama with an urgent question: Could he order the targeted killing of an American citizen, in a country with which the United States was not at war, in secret and without the benefit of a trial?

The Justice Department’s Office of Legal Counsel prepared a lengthy memo justifying that extraordinary step, asserting that while the Fifth Amendment’s guarantee of due process applied, it could be satisfied by internal deliberations in the executive branch.

Mr. Obama gave his approval, and Mr. Awlaki was killed in September 2011, along with a fellow propagandist, Samir Khan, an American citizen who was not on the target list but was traveling with him.

Here we have the Obama administration asserting what I genuinely believe, without hyperbole, is the most extremist government interpretation of the Bill of Rights I’ve heard in my lifetime — that the Fifth Amendment’s guarantee that the State cannot deprive you of your life without “due process of law” is fulfilled by completely secret, oversight-free “internal deliberations by the executive branch” — and it’s now barely something anyone (including me) even notices when The New York Times reports it.

Please just re-read that bolded part. This is something that we already knew. The New York Times‘ Charlie Savage had previously reported that Obama OLC lawyers David Barron and Marty Lederman had authored a “secret document” that ”provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war” (“The memo concluded that what was reasonable, and the process that was due, was different for Mr. Awlaki than for an ordinary criminal”). Attorney General Eric Holder then publicly claimed“‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.” Both of those episodes sparked controversy, because of how radical of a claim it is (Stephen Colbert brutally mocked Holder’s speech: “Due Process just means:  there’s a process that you do”).

But that’s the point: once something is repeated enough by government officials, we become numb to its extremism. Even in the immediate wake of 9/11 — when national fear and hysteria were intense — things like the Patriot Act, military commissions, and indefinite detention were viewed as radical departures from American political tradition; now, they just endure and are constantly renewed without notice, because they’ve just become normalized fixtures of American political life. Here we have the Obama administration asserting what I genuinely believe, without hyperbole, is the most extremist government interpretation of the Bill of Rights I’ve heard in my lifetime — that the Fifth Amendment’s guarantee that the State cannot deprive you of your life without “due process of law” is fulfilled by completely secret, oversight-free “internal deliberations by the executive branch” — and it’s now barely something anyone (including me) even notices when The New York Times reports it (as the ACLU’s Jameel Jaffer asked yesterday: “These Dems who think executive process is due process: Where were they when Bush needed help with warrantless wiretapping?” — or his indefinite detention scheme?)

Read the full article with updates at Salon.com

Glenn Greenwald

Glenn Greenwald is a Pulitzer Prize-winning journalist, constitutional lawyer, commentator, author of three New York Times best-selling books on politics and law, and a staff writer and editor at First Look media. His fifth and latest book is, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State, about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world. Prior to his collaboration with Pierre Omidyar, Glenn’s column was featured at Guardian US and Salon.  His previous books include: With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the PowerfulGreat American Hypocrites: Toppling the Big Myths of Republican PoliticsA Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency, and How Would a Patriot Act? Defending American Values from a President Run Amok. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, a George Polk Award, and was on The Guardian team that won the Pulitzer Prize for public interest journalism in 2014.

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