In John Hugues’ National Lampoon story “Vacation ’58” (not the crappy movie based on it), a wrecker operator responds to Clark Griswold’s query on the price of towing his car in from the desert, asking “How much ya got?” He helpfully explains to Clark that what he’s doing isn’t robbery: “I should know — I’m the Sheriff!”
I think of that line as I read the news these days. A good example is US President Barack Obama’s claim of plenary executive authority to target people (including American citizens abroad, uncharged with any crime) for killing by drones. Attorney General Eric Holder defends this as an administrative “due process” of sorts (or as Stephen Colbert elaborates, “Due process — it’s a process that you do”).
From what I gather, the “process” for adding names to the list resmbles Antony’s victorious triumvirate in Julius Caesar, negotiating their list of enemies to proscribe: “These many, then, shall die; their names are prick’d. … He shall not live; look, with a spot I damn him.”
The real reason killing people extrajudicially with drones is (in the words of Obama’s CIA pick John Brennan) “legal, ethical and wise” is that constitutional restraints on executive power are qualified by the clause “all guarantees void in wartime.” In practical terms, Obama’s claims of plenary executive authority are indistinguishable from the most bravado-laden “Unitary Executive” legal briefs of his predecessor’s pet scholars.
And it’s not like even supposedly liberal “due process” hawks on the Supreme Court are prone to overrule such executive claims. Whether or not it should fall under Congressional oversight is, in Supreme Court parlance, a “political question.” When such authority is challenged by a citizen not actually targeted by it, there state claims lack of “legal standing.” But if you’re actually on the list, well, let’s just say it’s pretty hard to make a legal case after you find out.
So even when the courts admit to theoretical limits to presidential authority, the difficulties associated with finding an actual circumstance under which that authority might be practically challenged would tie Godel’s hair in knots.
US Senator Dianne Feinstein proposes a special judicial body analogous to the Federal Intelligence Surveillance Court (FISC), whose sole purpose is to issue warrants for federal wiretaps. Well, that really oughtta help: In its entire history, FISC has only once denied a wiretap request. Congress immediately responded by creating the FISC Court of Appeals to overrule FISC.
Meanwhile, can anyone tell me what the Los Angeles Police Department would do in their hunt for John Dorner, if the Fourth Amendment didn’t exist, that they’re not doing right now?
Paper restrictions on state power are laughable when the state’s own courts and other officials get to interpret and enforce them. The only real constraint on state power is popular resistance. To the extent that paper guarantees and bills of rights are effective, it’s only because they’re backed up by the same fear of the public that compelled the state to offer those guarantees in the first place. As anarchist Rudolf Rocker pointed out, civil liberties aren’t granted by governments; where governments recognize them, they do so because the people forced them to.
Dorner’s becoming a folk hero among many people of color in Los Angeles for a reason: They’ve never seen Dorner nor do they expect to, but they see the uniformed thugs of the LAPD every day. They know that while Dorner will never represent a real threat to them, the LAPD does. The cops, as states almost universally do in practice, violate all the precepts (“winning the hearts and minds”) of counter-insurgency warfare. It’s not much of a stretch for the average Angeleno think that if Dorner is the enemy of these scum, he must be my friend.
If there’s any restraint on the LAPD’s current police riot, it won’t come from a court. It will come from their own abject fear of the people they’re currently alienating.
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