Our Amorphous Constitutional Protections

The image to the left is not a weapon currently employed by the U.S. military; it is a drone conjured up by the creators of the "Terminator" films. As is frequently the case with science-fiction, that film turned out to be far more prophetic than most viewers could have imagined at the time. Brian Lehrer, on his NPR show here in New York, has hosted a discussion of the constitutionality of using drones to "take out" U.S. citizens said to be enemies of the state without any formal charges being brought against them or being given the benefits of a trial. In the course of this morning's program, Jack Goldsmith, a former member of the Bush administration argued that citizens who are victims of such attacks are being given due process; it's just a question of how one defines what a citizen is due. (It depends on what the meaning of the word "is" is?) The argument is further made that these executions have been given the approval of the U.S. congress.


What we are witnessing is a classic example of the paradox of "Locke's Socks," a mind experiment in which one begins with, let us say, a white sock and, then, by a series of seemingly modest alterations, perhaps a red thread here, a green thread there, we go through enough of these iterations of the sock to entitle us to ask the question, "is it still the same sock?" It is interesting that members of the right wing, who usually pride themselves on being "strict constructionists" when it comes to our constitution are unphased by the liberties presently being taken with the venerated document.


Flawed as the American constitution may be, citizens of just about every political persuasion have, for the most part, taken for granted its protections. The most egregious devaluation of those protections clearly took place during the Bush regime, but there have, of course, been precedents in our history. One need not go as far back as Lincoln during the Civil War or FDR during World War II to find that the U.S. government is capable of using war-time conditions to suspend constitutional rights. On the other hand, most Americans reeled back in horror as Bill Clinton's attorney general, Janet Reno, found it was permissible to have U.S. Army tanks blast their way into an encampment of trouble-makers occupied by women and children in Waco, Texas.


What has made the recent use of drone attacks so chilling is that they are being utilized by a president who, as a candidate, appeared opposed to the use of terror, suspension of the right of habeus corpus and summary execution. President Obama's falling into line with Bush administration protocols could be written off as just one more disappointment in his actual as opposed to promised performance were it not for the fact that it seems to conjure up the unmistakable impression that there are forces determined not only to bring us back to nineteenth century economic conditions, but political conditions as they existed before the signing of the Magna Carta in the thirteenth century.


For this citizen, there is little comfort in being told that Congress has given its approval to a particular course of action, or, given its present cast of characters, the approval of the Supreme Court. And, although there were a handful of government lawyers who had the integrity to resign rather than compromise what they saw as the actual mandate of the constitution, the Bush administration made clear that it is far from impossible to find lawyers in Washington who will sign off on just about anything a president requests. (There was slight solace indeed for German Jews who were told that good, stolid German judges had found no basis for objecting to their treatment at the hands of the Third Reich.)



What does not often get expressed is the fear that the slippery slope we are presently on will one day have drones flying over Mid-Western plains or the corridors between skyscrapers in our big cities searching out pronounced enemies of the state. Once inured to overseas assassinations, will some Americans be desensitized to the prospect of taking out dangerous rabble rousers protesting some future "austerity program" designed to protect the prerogatives of the one percent?