The police crackdowns on the Occupy Wall Street movement have thrown a glaring new spotlight on a law enforcement system that seems increasingly out of control. Some of New York’s police officers were found to be involved in gun and drug trafficking. In Los Angeles, dozens of prisoner beatings are under investigation, and these are probably only the tip of the iceberg. Puerto Rico’s police were described as “routinely rogue” in a recent news account. In Philadelphia — well, start with Officer Daniel Castro, and go from there.
Police brutality and criminality have been with us for a long time. The Knapp Commission uncovered a cesspool of corruption under New York’s finest in the 1970s, whose scandals were chronicled in the film “Serpico.” But there is a new level of contempt for the public these days, perhaps epitomized by the pepper-spraying of four female protesters on New York’s University Place by Anthony Bologna, no mere beat cop but a deputy inspector. Bologna simply emptied his canister and walked away while the women writhed in pain on the ground.
New York’s police have been corrupted in another way too. The CIA and other spy enforcement agencies are now so enmeshed with the NYPD that it has become the prototype of a new federalized policing system, quasi-military in nature (it now boasts the capacity to shoot down aircraft) and frighteningly removed from local accountability or control. This, of course, is part and parcel of the surveillance and security apparatus that has grown virtually unchecked across the country since 9/11 and now threatens the liberty of the country in ways Richard Nixon could only have dreamed.
A fish, as they say, stinks from the head. Only three years ago, the lawlessness of the George W. Bush regime could still be regarded as exceptional. Under Barack Obama, it has been normalized. The presidentially ordered assassination on Sept. 30 of an American citizen, Anwar al-Awlaki, represents a terrifying new descent into tyranny. Awlaki (killed along with several others, including another American who was traveling with him) was condemned for having “inspired” terrorist attacks against America. He was also described as being chief of external operations for al-Qaida in Yemen, although no such title was ever attributed to or claimed by him, and no evidence was adduced that he was an actual participant in the plotting or preparation of a terrorist act. In short, he was killed for the crime of being accused.
Arthur S. Brisbane, public editor for the New York Times, responded to this by asking, “Who can’t America kill?” and replied, “The answer, as a matter of law, is simply unknown right now.” If that doesn’t grab you, nothing I can say will. We don’t actually know whether Awlaki was the first U.S. citizen killed by executive fiat; Brisbane calls him “apparently” the first one. The government had demonized Awlaki for years. The media compliantly broadcast videos of him calling for jihad, which Brisbane now worries may have made it complicit in his assassination. But let us suppose that a president (or even a lesser official) simply wants a citizen done away with for political or personal reasons: Who is to stop it? Who is to know?
In the lead editorial of the same day’s paper (Oct. 9) that carried Brisbane’s commentary, The Times observed that “a detailed and cautious memorandum” justifying Awlaki’s assassination had been prepared by lawyers in the Justice Department’s Office of Legal Counsel — the same office that had produced the infamous torture memos condoning the horrors at Abu Ghraib, Guantanamo and elsewhere. Presumably the Awlaki memorandum reviewed the “evidence” against him compiled by various intelligence agencies, although no information is evidentiary until admitted by a judge and subject to challenge. It then parsed Awlaki’s constitutional rights and decided he didn’t have any. The Times described this procedure as “a refreshing change from the reckless legal thinking of the Bush administration, which … claimed unlimited presidential powers.” It did acknowledge that the entire “process” of condemning Awlaki took place exclusively within the executive branch and was not shared with or reviewed by Congress or the judiciary.
There’s a name for this kind of proceeding; it’s called Star Chamber, after the infamous secret court of the Tudor-Stuart era, which was rightly dismantled during the English Revolution. Its work was one of the grounds for executing King Charles I in 1649 on charges of treason. But even the Court of Star Chamber was never part of a process that could result in a secret decree of death. That is now the honor of the Office of Legal Counsel.
The Times may think it better that there is some ad hoc review of targeted killings of Americans rather than none, although improvements, it suggests, could be made. I think it is worse to dress up killing with some rags of procedure and say we still live under the rule of law. We do not. Whatever the Bush administration may have done in practice, it never publicly claimed the right to kill an American citizen without trial. For that, we have to thank the former editor of the Harvard Law Review.
Robert Zaller is a professor of history & politics. He can be reached at [email protected].