Dec 11, 2013
Welcome to Post-Constitution America
Posted on Aug 5, 2013
By Peter Van Buren, TomDispatch
As at Guantanamo, rules of evidence reaching back to early English common law were turned upside down. In Manning’s case, he was convicted of espionage, even though the prosecution did not have to prove either his intent to help another government or that harm was caused; a civilian court had already paved the way for such a ruling in another whistleblower case. In addition, the government was allowed to label Manning a “traitor” and an “anarchist” in open court, though he was on trial for neither treason nor anarchy. His Army supervisor in the U.S. and Iraq was allowed to testify against him despite having made biased and homophobic statements about him in a movie built around portraying Manning as a sad, sexually-confused, attention-seeking young man mesmerized by WikiLeaks founder Julian Assange. Finally, the same judge who essentially harassed the press throughout Manning’s trial issued a 24-hour advance notice of her verdict to ensure maximum coverage only of the denouement, not the process.
Given all this, it is small comfort to know that Manning, nailed on the Espionage Act after multiple failures in other cases by the Obama administration, was not convicted of the extreme charge of “aiding the enemy.”
Not Manning Alone
Someday, Manning’s case may be seen as a bitter landmark on the road to a post-Constitutional America, but it won’t be seen as the first case in the development of the post-Constitutional system. Immediately following 9/11, top officials in the Bush administration decided to “take the gloves off.” Soon after, a wounded John Walker Lindh, the so-called American Taliban, was captured on an Afghan battlefield, held in a windowless shipping container, refused access to a lawyer even after he demanded one as an American citizen, and interrogated against his will by the FBI. Access to medical care was used as a bribe to solicit information from him. “Evidence” obtained by such means was then used to convict him in court.
Certainly, the most egregious case of pre-Manning post-Constitutional justice was the execution of American citizen Anwar al-Awlaki by drone in Yemen, without due process or trial, for being an al-Qaeda propagandist. In this, President Obama and his top counterterrorism advisors quite literally took on the role of judge, jury, and executioner. In a similar fashion, again in Yemen, the U.S. killed al-Awlaki’s American teenage son, a boy no one claimed was connected to terrorism. Obama administration lawyers went on to claim the legal right to execute U.S. citizens without trial or due process and have admitted to killing four Americans. Attorney General Eric Holder declared that “United States citizenship alone does not make such individuals immune from being targeted.”
Then-FBI Director Robert Mueller, asked in a Congressional hearing if the FBI could assassinate an American citizen in the United States, replied that he simply did not know. “I have to go back. Uh, I’m not certain whether that was addressed or not.” He added, “I’m going to defer that to others in the Department of Justice.” As if competing for an Orwellian prize, an unnamed Obama administration official told the Washington Post, “What constitutes due process in this case is a due process in war.”
So welcome to post-Constitutional America. Its shape is, ominously enough, beginning to come into view.
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