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Terror Tuesday: Standing up for the Constitution

Remember the posturing at the start of the 112th Congress when Republicans ostentatiously wrapped themselves in an (edited) version of the US Constitution?

One passage which appears twice in the Constitution has been largely ignored by both Republicans and Democrats since then. Both the Fifth and Fourteenth Amendments assert that no person shall be deprived of “life, liberty, or property, without due process of law.”

This month Rep. Dennis Kucinich has had a stab at protecting this endangered Constitutional right.

On August 3, the Ohio Democrat and one co-sponsor, Rep. Raul Grijalva (D-AZ), introduced H.R. 6357, a bill “to prohibit the extrajudicial killing of United States citizens.”

It contains much of the same language as a bill of the same name, H.R. 6010, that Kucinich and six co-sponsors introduced back in July 2010 following The Washington Post report that US citizens were included on hit lists maintained by the CIA and Joint Special Operations Command and that killing an American citizen, Anwar al-Awlaki, was a government priority.

H.R. 6357 declares that “no one, including the President, may instruct a person acting within the scope of employment with the United States government…to engage in, or conspire to engage in, the extrajudicial killing of a United States citizen.” It requires the President to report to the Congressional Intelligence Committees on the identity of each US citizen on a JSOC or CIA targeted killing list within 15 days, and to submit to Congress an assurance that no citizens are being added to the lists as “high-value individuals” or “high-value targets.”

Kucinich, who lost the 2012 Democratic primary when his district was abolished in redistricting and will be leaving Congress after this session is over, has been known for such quixotic gestures as attempting to impeach President Bush and Vice-President Cheney for their unconstitutional activities.

So Congress will shortly be losing a Member who genuinely cares about that often elusive term, the ‘rule of law,’ which to Kucinich is inseparable from the US Constitution. His evocation of the ‘rule of law’ in Section 2 of H.R. 6357 has an almost elegiac tone given how at odds it appears to be with the actual ‘sense of Congress’ and is worth quoting in its entirety:

“It is the sense of Congress that–

“(1) due process of law is a fundamental right of the United States Constitution, the United States has a commitment to uphold and defend the rights included in the Bill of Rights, and no United States citizen, regardless of location, should be ‘deprived of life, liberty, property, without due process of law’, as stated in article XIV of the Constitution;

“(2) the participation in, or planning of activities, by the United States Government that result in the extrajudicial killing of a United States citizen undermines the rule of law and the moral standing of the United States in the world;

“(3) the United States and other responsible nations have a vital interest in upholding the rule of law;

“(4) the authority granted to the President in the Authorization for Use of Military Force (50 U.S.C. 1541 note), following the terrorist attacks of September 11, 2001, is not limitless;

“(5) the authority provided by the 2001 Authorization for Use of Military Force has been used by the executive branch to circumvent the role of Congress as a coequal branch of Government, to justify holding prisoners indefinitely without due process at Guantanamo Bay, for mass domestic spying on United States citizens in violation of their most basic constitutional rights, and using lethal force against United States citizens abroad who are suspected of participating in terrorist activities absent judicial review;

“(6) the notion that the constitutional rights of one citizen can be revoked to protect the constitutional rights of other citizens should be rejected;

“(7) the use of lethal force against a citizen of the United States that is outside of the internationally recognized battlefield of Afghanistan constitutes a violation of the law of armed conflict; and

“(8) it is in the best interest of the United States to respect the rule of law and set the example for upholding the principles of international and domestic law.”

The bill has been referred to the Select Committee on Intelligence, the Judiciary and Armed Services. It seems unlikely to go further than its 2010 predecessor, which expired in the House Subcommittee on the Constitution, Civil Rights and Civil Liberties.

And don’t expect extra judicial killing, indefinite detention and other due process issues to be raised in the election campaign, given the extent to which both major political parties and presidential candidates have bought into the “new normal” on national security policies and what the UK Guardian aptly terms “the normalization of extra-judicial murder”.


Above: Abdulrahman Al-Awlaki, a 16 year old US citizen killed in a US extrajudicial drone strike

The assault on civil liberties will not feature unless we force it onto the political agenda and into public consciousness. It’s up to us to raise the temperature and the volume, through a barrage of phone calls and letters to our elected representatives, letters and op eds to newspapers, blogs, discussions with our neighbors, creative actions and persistent bird-dogging of candidates. 

Yes, there’s the economy and there’s also the Constitution, stupid.

© 2021 ACLU of Massachusetts.