Freedom And The Omnipotent Power To Assassinate
30 April 2015
By Jacob G. Hornberger
As a kid growing up, did you ever think you'd live under a government that
had the omnipotent power to assassinate you and every other American citizen?
If you heard about some communist regime or other totalitarian government
wielding the omnipotent power to assassinate its own citizens, you wouldn't
be surprised. But I'll bet that the vast majority of Americans never thought
they would end up living under a governmental structure that had that sort of
power over the citizenry.
That's certainly not the type of governmental structure that the Framers
brought into existence with the Constitution. The federal governmental
structure that the Constitution brought into existence was one whose powers
were limited to those enumerated in the Constitution itself. The power to
assassinate people, Americans or foreigners, was not among those enumerated
The American people were skeptical and distrustful about the powers of the
new government. They had had experience with a government that engaged in
brutal actions against its own citizens. They were concerned about the same
sort of thing happening again. That's why they insisted that the Constitution
be amended immediately after its approval. Among the amendments were the
Fourth, Fifth, Sixth, and Eighth Amendments, which prohibited the federal
government from killing people, Americans or foreigners, without according
them long-established procedural rights and guarantees, such as trial by
jury, due process of law, and right to counsel.
And then came the 9/11 attacks. President Bush simply issued a decree stating
that he and his national-security establishment—i.e., the military and the
CIA—now automatically wielded the omnipotent power to assassinate both
Americans and foreigners.
Ironically, when Nicolas Maduro, the president of Venezuela, recently sought
extraordinary, emergency powers in response to President Obama's decree that
Venezuela now posed a grave threat to U.S. ''national security,'' he asked
the Venezuela legislature to grant him such powers. Ironically, Adolph Hitler
did the same thing after the terrorist attack on the Reichstag. He went to
the German legislature to make his case for giving him extraordinary powers
to wage the war on terrorism.
Not Bush. He said that since America now had its own war on terrorism, he
didn't need congressional approval for assuming and exercising the power to
assassinate. He simply announced that he now had such power over the American
people and others around the world. Of course, he exercised such omnipotent
power through his military forces and his CIA forces.
Bush's omnipotent power to assassinate Americans and foreigners was passed to
President Obama. It will be also passed to Hillary Clinton, Jeb Bush, or
whoever is elected president in 2016.
The federal judiciary has made it clear that it has absolutely no intention
of interfering with the national-security state's power to assassinate
people. The Supreme Court calls the ''political question doctrine,'' a
doctrine that, needless to say, is not found in the Constitution and is
simply a way to avoid interfering with the operations of the most powerful
branch of the federal government — the national-security branch.
The members of Congress certainly aren't going to interfere with the
president's power to assassinate Americans. The Pentagon could threaten to
cancel military projects in their district. And taking on the CIA is
something that the members of Congress have absolutely no interest in doing.
One might say: ''But Jacob, the government isn't assassinating multitudes of
Americans or rounding them up, putting them into concentration camps, and
torturing them. They're only doing such things to a very small number of
Americans. And they're doing it as part of national-security operations to
keep us safe. The rest of us are still living in a free society because while
they wield the power to assassinate us, they're not exercising the power
except on a tiny few.''
Suppose that after 9/11, Americans immediately amended the Constitution to
nullify the First Amendment. Immediately after the nullification became
effective, the government enacted a law that said that anyone who criticized
the government would receive the death penalty. For the past decade, however,
only a handful of people have been executed for criticizing the government.
Millions more have continued to criticize the government without being
rounded up and executed.
Would you feel that you lived in a free society under that type of law? Would
you say, ''Jacob, of course we're free because the government isn't enforcing
the sedition law except on just a handful of critics''?
Simply because the government wasn't exercising its power to punish all the
critics wouldn't mean that that's a free society. Everyone would have to
factor into his decision-making the fact that the government wields the power
to execute people for criticizing the government and that it could begin
exercising its powers in a widespread manner on a moment's notice.
Thus, as our American ancestors understood so clearly, the genuinely free
society is not one in which the government wields the power to execute people
for criticizing the government but exercises such power wisely and
judiciously. The genuinely free society is one in which the government lacks
the power to punish people for criticizing the government.
That's why the Constitution failed to grant the federal government the power
to kill or otherwise do bad things to people for criticizing the government.
It's also why our ancestors made certain that the First Amendment was enacted
— to make sure that federal officials got the point.
The same principles apply to the government's post-9/11 power to assassinate
Americans. No matter how wisely and judiciously such power might be
exercised, the mere wielding of such power is what totalitarian regimes do,
not governments in free societies. The genuinely free society is one in which
the government lacks the power to assassinate. That's why the Constitution
fails to delegate to the federal government the power to assassinate people,
even in matters relating to ''national security.'' It's also why our
ancestors made certain that the Fourth, Fifth, Sixth, and Eight Amendments
were enacted — to make certain that federal officials got the point.