Glen T. Martin
Under the Bush administration citizens were shocked when the government claimed the power to incarcerate U.S. citizens (or anyone in the world) in secret detention without charges, the right to trial, or habeas corpus. Under the Obama administration these powers have been explicitly extended to the right to assassinate any U.S. citizen (or anyone in the world) without charge, without trial, and without any requirement for judicial justification or oversight. This is the power of totalitarianism pure and simple. What other act of unaccountable dictatorship is so clearly beyond the pall of rightful and legitimate government that the right to kill perceived enemies any time, any place with no justification but that you assert the power to do so?
The Obama administration has leaked a white paper memo that claims they have the legal right to this policy of assassination. The actual legal documents that the memo is supposedly based on remain top secret. How can legal documents and the basis for legal action within a democracy be claimed as secret at all? The very nature of law is that its legal foundations are public and open to all so that the basis for the government’s powers and actions are known to all. However, the U.S. government abandoned any but the most tenuous pretense to being a democracy long ago. Its claimed powers are now tyrannical and their justification is kept secret.
In a Democracy Now broadcast of February 5, Amy Goodman interviewed Jameel Jaffer, deputy legal director of the American Civil Liberties Union: “If you look at the memo … there’s no geographic line,” says Jaffer. “The Obama administration is making, in some ways, a greater claim of authority [than President Bush]. They’re arguing that the authority to kill American citizens has no geographic limit.” Jaffer attempts to put the government’s claim to the right to assassination in context:
You have to start with the acknowledgment that there are circumstances in which the government has the authority, and maybe even the responsibility, to use lethal force. Even if you think about it domestically—somebody is running down the street, waving a gun around, threatening civilians—the government doesn’t have to go to a judge beforehand to seek a warrant to carry out that use of lethal force. But that’s a situation in which the threat is imminent, in the ordinary meaning of the term: There’s not time to go to a judge; there’s not time for deliberation.
But the kind of imminence that the government is defining here, or the way that the government has defined the term here, is much, much broader. They’re talking about situations in which the person presents no immediate threat, there’s no known plot. These people are located far away from any actual battlefield, so you’re not talking about a situation in which there are battlefield exigencies that the government has to worry about. You’re really talking about something that looks a lot more like a law enforcement context. And in that context, the traditional rule is the government has the authority to use lethal force only in very narrow circumstances. And this memo really redefines those circumstances entirely.
What this discussion omits is the radical differences between the rule of law within sovereign nations and the international situation between sovereign nations in which there is no effective rule of law, only the rule of power, force, and violence. As Jaffer points out, a government has the right to use lethal force in certain situations prior to any judicial oversight, for example, if a gunman is threatening the lives of innocent civilians the police may use lethal force to stop him. However, within nations, insofar as they are governed by the rule of law, police discretion in this respect is extremely curtailed, and, after any use of lethal force, police must justify its use to the proper reviewing and judicial authorities.
These claims to absolute power and discretion in the matter of assassinating perceived enemies, however, are not within the context of the rule of law within the U.S. or any other nation. They are claims that purport to transcend all contexts of the rule of law in the naked power struggles of the world beyond nation-states. So the analogy that Jaffer is using is not entirely appropriate. The world situation beyond the borders of the rule of each sovereign nation over its internal territory is a world of naked war and power, with no rule of law. The philosopher Immanuel Kant pointed this out as early as 1795 in his essay Perpetual Peace. Even when nations are not fighting, Kant stated, their relation was one of “war” since the only thing that establishes peace, or legitimate republican government, or civilized human relationships is the enforceable rule of democratically legislated law.
What the United States is doing, in its explicit admission of being the world’s “policeman” over its global empire, is stating that the war relation (the right to kill indiscriminately) is its relation to every person on Earth, including U.S. citizens. It is claiming that this “war relation” trumps the U.S. Constitution and the due process of law within the United States. Its global empire, transcending the rule of law, is prior to and more fundamental than the Constitution or rule of law within any nation on Earth. The U.S. government, therefore, abrogates to itself the ultimate tyranny, the ultimate repudiation of democracy and the civilized rule of law anywhere on Earth. It claims the “right” to assassinate any person anywhere without due process of law.
The hand-wringing and consternation over this policy by the progressive community in the U.S., while fully justified, is misguided and misleading. For the U.S. political left continues naively to assume the legitimacy of the system of so-called sovereign nation-states and then criticizes its government for acting in ways made inevitable by this very system. For the system is inherently a war system. It invites the arbitrary and tyrannical use of power in the hands of imperial governments. As corrupt as the U.S. government has become, therefore, that is not the root of the problem.
The root of the problem is the system of sovereign nation-states itself, which encourages disrespect for democracy, the rule of law, and the justifiable limits on government uses of force through the enforceable rule of law. A truly progressive and reasonable perspective, therefore, would affirm the need for democratic world government as the only authority possible that could establish limits to all governmental use of lethal force and end forever programs of tyranny and assassination. A civilized world system is also necessarily a non-military world system: a federation of states under a single constitution.
The global tyranny of the U.S. in its worldwide war on terror (for the maintenance and protection of empire) naturally culminates in that tyranny trumping the rule of law and any form of constitutionalism anywhere on Earth, including within the United States itself. The absurdity of trying to stop or limit this tyranny through legal actions at home is revealed in the consternation from the ACLU and other critics of this policy that the policy includes assassination of U.S. citizens. Why should U.S. citizens be exempt from assassination? It is arbitrary assassination itself, without any due process of law, that is wrong and tyrannous. Legally and morally, whether U.S. citizens are included is irrelevant. We need to stop global tyranny, not simply try to exempt U.S. citizens from it.
The most promising prospect for eliminating global tyranny and establishing global democracy and the rule of law worldwide is the Constitution for the Federation of Earth. The Constitution was written by hundreds of world citizens over a period of 23 years from 1968 to 1991 and is readily available for democratic ratification by the nations and peoples of Earth. It can be found on many websites, in many languages, and is supported by many organizations around the world. It ends the war system in the world, demilitarizes the nations, ensures freedom and the due process of law for everyone on Earth, and establishes a system of environmental protection and sustainability.
Here is where truly progressive thought finds its justification and legitimate ideal. It does little good to complain that the U.S. government is exceeding its constitutional authority in its global policy of assassination because the lawless world system of some 193 territorial nation-states invites and confirms such policies. Those who have the military power to do this have no effective restraints on that power. If we want to address the growing tyranny of the secret and unaccountable militarized government of the U.S., it will do little good to cry foul about violations of the U.S. Constitution.
We need to be transforming the world system to one under the democratic rule of law—for everyone. This cannot happen under the system of sovereign nations. For this system is the root of the problem, and the problem cannot be solved within this system. We need an Earth Federation under the authority of the Earth Constitution. Only then will the civilized rule of law really come to all human beings on planet Earth.
(Glen T. Martin is Professor of Philosophy and Chair of the Program in Peace Studies at Radford University in Virginia. He is president of the Institute on World Problems (IOWP) and teaches courses in the philosophy of law.)