07/24/14 – Peter Van Buren – The Scott Horton Show

Hey, I'm Scott Horton here.
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All right, you guys, welcome back to the show.
I'm Scott Horton.
This is my show, The Scott Horton Show.
We're on the Liberty Radio Network.
And you can follow me on Twitter, at Scott Horton Show.
You can join the chat room at scotthorton.org slash chat, if you like that kind of thing.
Our first guest today is Peter Van Buren.
He is a whistleblower from the U.S. State Department in regards to reconstruction in Iraq.
He was a State Department employee there, wrote a book about it called, We Meant Well, How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People.
He writes at his blog, We Meant Well.
And he's got a new book out, The Ghosts of Tom Joad, A Story of the 99%.
And he writes at tomdispatch.com, and then, therefore, we rerun it at antiwar.com.
Welcome back to the show.
How are you doing, Peter?
It's always a pleasure to be here, Scott.
I'm doing well, thank you.
Good, good.
Very happy to have you back on the show.
And happy to see that you're continuing on this series about the Bill of Rights and, well, what's left of it, or what's gone from it, anyway.
First you wrote about the First Amendment and the Fourth, and we got two good interviews out of you then.
So now here we go.
We're moving on to the Fifth Amendment, the right of the president, the authority of the president to assassinate American citizens.
As ridiculous as that sounds, that's a thing now.
So what you do here, you first of all break it apart into constitutional America and now post-constitutional America and talk about, you know, roughly speaking, how it was before it changed.
So that's probably a good way to start this interview too, don't you think?
The sad thing about writing this series about post-constitutional America is how, I hate to say it, how easy it is.
You know, I mean, when you write every day as I do, there's always this fear in the back of your mind that you're going to run out of material or not have something to say each day.
And quite sadly, unfortunately, with this concept of post-constitutional America, that's not a problem.
The most recent issue to be looked at, and this is the article on the Fifth Amendment, is the murder by the United States of an American citizen in Yemen called Anwar al-Awlaki.
For those who slept through civics class in high school, and I was the guy behind you poking you with a pencil, sorry to say that, the Fifth Amendment to the Constitution is what guarantee, among other things, guarantees Americans due process when the government tries to take away their life, liberty, or property.
And what that means is very simply that when the government feels that they need to deprive you of something very important, such as some of your possessions, such as your liberty by locking you up in jail, or your life by brutally executing you, you have to get a chance to push back on that, to have your day in court, to be able to examine the evidence the government has against you, to refute that evidence, to call witnesses, all the stuff we see on TV when we watch Law and Order or any of the other shows.
That system of due process grew directly out of the abuses that the American colonists faced from the British.
Before the American Revolution, there was no concept of due process here in the United States, or should I say, it was a concept that the British violated at will.
That's particularly grotesque in the sense that this concept of having a chance to speak back to the government dates back certainly to the Greeks, but in the Western world, it goes all the way back to the 13th century Magna Carta, which was created in Britain.
The British certainly knew about the idea, as did the American colonists.
After we fought a revolution to get rid of crap like this in our country, due process served the United States well for 220 some years.
In fact, over that period of time, the Supreme Court went out of its way to define what due process was, to give it particular emphasis, and to make sure that Americans were given that.
It's important for people to understand that the concept of due process is the only imposition on the government, the only order to the government that's repeated twice in the Constitution.
It's in the Fifth Amendment, of course, quite famously, and then it was reiterated in the 14th Amendment, which was passed after the Civil War, which said that the concept also applied to the states.
It wasn't just a federal thing.
So this is very important.
It gets mentioned twice in the Constitution.
Nothing else qualifies for that honor.
Fast forward.
Can you elaborate a little bit about the ruling, I guess it was the Supreme Court ruling in 1938 that expanded and defined substantive due process?
I think you're saying this is the origin of our current concept of how it's supposed to work when you go and you get your day in court and you bring Matlock with you to try to save your ass.
Or Johnny Cochran, your choice of lawyers, and that's another right that's actually enshrined in due process.
You get to decide how you want to defend yourself.
It's important to understand how due process has been expanded by the courts, and you bring up one of the most significant expansions, the idea that there is something called substantive due process.
Procedural due process is the thing I just described, and that's the idea of having your day in court, and there's all these rules that govern that to make it fair.
Substantive due process is an amazing thing, and it says that there are rights that go beyond what are written in the Constitution.
These in fact cross over more directly into what the founders called these inalienable rights.
These are the rights that people talk of when they say they have a right to marriage, they have a right to be able to have children, they have the right to be able to decide who their partner in life is.
Like the Ninth Amendment, right?
Where it says just because this is a list of restrictions to prevent the violation of some of our rights doesn't mean that this is supposed to be some kind of comprehensive list of what our rights are.
We'll tell you what our rights are.
Exactly.
And the court said that even if these rights are not spelled out in the law or in the Constitution, they even rise above that and are so inherent in a democracy, almost in humanity, that they cannot be legally done away with.
You can't legislate away these rights.
A perfect example, had the concept existed at the time, would have been slavery.
We all know that quite shamefully the Founding Fathers ignored slavery in the Constitution, they were imperfect men, no doubt.
Slavery is inherently wrong.
It is inherently not part of democracy and it is inherently inhuman.
And so you can't, according to the Supreme Court, create a law that legalizes slavery.
And you can't create a law that says, well, there's going to be a fair way to have slavery.
Those things are beyond the pale and cannot be legislated.
That's the second part of due process.
And the Obama administration has violated both of those in its current form, which says that if the administration decides that a terrorist, quote-unquote, overseas, needs to be killed because in their opinion he or she can't be easily captured, well then they can do it.
They can send the drone out.
Before we get to the memo here, you mentioned the speech by Eric Holder.
And I think that was where they first kind of really explained or hinted at what was in their legal justifications for killing Anwar al-Awlaki with a drone strike in Yemen.
And it was summed up by Stephen Colbert as saying, yeah, of course, see, due process just means there's a process that you do.
And in this case, that means the president asked himself, you know, do I want to kill this guy?
And he decided that, yeah, he did.
There's your due process.
So you had a beginning and an end and everything.
You know, I should be writing for Colbert, you know, given those lines that he has like that.
I'll have to have to look into that and maybe send off a resume or two.
Eric Holder in 2012 made something at the time where we're seeing this.
See, now we've got to just hold it.
When we get back from this break, I'm the worst at timing these interviews, man.
You got to please forgive me, Peter.
It's Peter Van Buren, everybody.
When we get back, we'll talk about Holder, Obama, the White House, the Department of Justice and their conspiracy to pretend to legalize the president's power to murder American citizens.
Right after this.
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Hey, I'm Scott.
Welcome back to the show.
I'm Scott Horton.
This is my show.
Scott Horton Show.
I'm talking with Peter Van Buren.
We met.
Well, this is the name of his book about the Iraq war.
I'll speak for him and his State Department buddies.
Anyway, I don't know.
You weren't extending that title all the way to Donald Rumsfeld and Dick Cheney, were you?
The title is a little bit snarky and sarcastic.
And in that sense, maybe I will extend it to Cheney and Rumsfeld.
I don't think they believed it any more than I did.
But we'll never really know what they think.
They've been allowed to remain silent, even as their work deteriorates daily in Iraq.
Yeah, actually, Cheney wrote a really great essay all about how right he was all along.
That's completely ridiculous.
That was published in the Weekly Standard back a couple weeks ago.
One of the things that's a lot of fun, he and Liz wrote it.
Yeah, I miss that the same way I miss food poisoning that day.
Sorry about that.
In fact, I'd rather have food poisoning than read anything Cheney's got to say these days.
They all go down the same part of the house anyway, so there you go.
Well, very well said.
All right.
So where we left off at the break was Eric Holder's theory.
And now the courts have ordered it released, came out a few weeks ago now.
The memo that explains how and why it is.
And all that stuff you said about the Constitution, the charter that created this government, the first law that rules, it's every behavior supposedly is null and void.
And then go ahead and kill us if they feel like it.
And so I was wondering if you could explain what their theory is and maybe even exactly how far it goes.
Does this mean that they could kill me at my house if they want to?
And I don't just mean and get away with it, but I mean, legally, they have the authority to just bomb me.
Or how far does this go?
Technically, yes, Scott.
So I keep the doors locked and stay away from the windows just to be on the safe side.
And that's only partially making a joke out of things.
Let's back it up a couple of steps.
And first of all, remind everyone that our government and our lives are now controlled by secret memos written by people in secret and carried out in secret.
We saw that with the torture memos that were written during the Bush administration that explained and justified, quote, how legally the United States could torture people.
We presume that there are such memos governing the NSA's actions.
And now we know that there is such a memo that justifies, explains, and otherwise makes legal the killing of American citizens by their government.
As you mentioned, Eric Holder alluded to this memo in 2012 where he made clear, following Colbert, that when the president decides someone should be assassinated as a, quote, terrorist, unquote, that constitutes enough due process to make the kill.
This has all been quantified in a memo that was written by a guy named David Barron and only came to public notice when Obama wanted to nominate David Barron to the federal bench as a judge.
A couple of senators said they weren't going to go along with it until they saw this memo.
And so after a whole lot of fuss, and the Obama administration had been denying releasing the memo under a series of FOIA requests by the New York Times and the ACLU, they finally released a redacted version.
And so we get to see about one-third of the legal arguments that justify killing an American citizen.
Basically, there are three criteria that are involved in killing an American.
The first is that the president, that they quote a high government official, and that's never defined.
I mean, is it the Secretary of Agriculture?
Is it somebody at the DMV?
We don't really know.
The high government official has to decide that this person is an imminent threat to the United States.
Number two, that it is impractical, whatever that word means, to capture this person.
And lastly, that the kill is done under the rules of law, which themselves are quite vague, but are generally held to mean that you can kill someone with a rifle, but you can't kill them with poison gas, as if any of that really matters either.
That's it.
There's nothing in the memo that limits the killing to overseas.
There's nothing in the memo that limits the killing to persons who are or are not Americans.
In fact, the memo specifically says, nationality or citizenship does not immunize a target.
Interesting choices of words.
So this is how they killed Awlaki in the desert of Yemen.
The president said he was a bad guy, it was impractical to capture him out there, and they used a drone, which is legal under the rules of law.
But there's nothing in this memo that limits it to actions abroad.
So let's pick on you in your home.
Let's pretend that the government comes to the conclusion, through whatever process they employ, that you might have weapons of mass destruction in your home that you may set off at any moment.
I have been interviewing whistleblowers lately, so that's pretty bad.
Yeah, but let's just say that a source of a source who's paid by the FBI and who's been completely unreliable, yadda yadda yadda, says Scott Horton's got a weapon of mass destruction in his basement and he's going to set it off.
It doesn't really require too much evidence, and there's no standards of evidence defined in these memos.
Well, the government then says, well, great, the president has determined that you are an imminent threat to the United States based on this information.
That's number one.
Number two, the question of can you be captured.
Well, let's say that the president and the people say, well, look, if we send a SWAT team in there against Scott, Scott may pull the trigger on his bomb.
And then we've got the whole city of wherever you live blown up.
So it's impractical to capture him, and the rules of law say, fine, we'll use a drone instead of poison gas, and then bang, an American citizen in the United States has been killed by the government, and that's considered legal because due process under these conditions has been done.
Well, now, if I understand it right, the memo and Rand Paul both say that really this is the same thing as a cop chasing a guy who robbed a store or something like that, and they can kill him if he's a danger, has a gun in his hand.
So as Rand Paul said, you can kill him with a drone.
I just don't want CIA and military strikes on Americans.
But if they're in the middle of a crime where a cop could shoot him with his pistol, then why not kill him with a drone?
And in fact, the memo does specifically include that.
It's called the public authorities exception, and it in fact is used in that circumstance.
A police officer who's chasing a bad guy down the street, the bad guy stops, turns, points the gun at the cop, well, the cop is allowed to shoot to kill under those circumstances.
The differences, of course, are many.
The most significant difference is that the law explaining those public authorities exception is public.
It's not secret.
More importantly, the cop can be, and we'll leave the argument about whether this happens as much in real life as it should, but the cop can be held accountable for his or her actions.
The cop can be brought to justice and can be punished for this.
And cops are trained in when these public exceptions can legally apply.
The trial of the cop is done in an open and public way, and all those things in fact account for, albeit after the fact, for some sense of due process.
In the drone killing, none of these rules apply, and so the two things are not in any way comparable.
It's Rand Paul and the memo's author really are full of shoot, if you'll pardon the pun on that.
The other thing the memo brings up is something called the balancing test, and this is another established legal concept, like with public authority exception, that is totally bastardized in creating this memo, and the short version of the balancing test, which is passed through the Supreme Court, is that in some instances, particularly administrative ones, full due process may not apply, and the balancing test was derived out of a case where some guy felt he was cheated out of some social security money he was owed, and the Supreme Court said for things like that, due process can include an internal thing at social security.
You may not have the right to take that case all the way to the Supreme Court, and we'll still call it due process under some circumstances.
The reason why that's complete garbage when you apply it to drone killings is that the balancing test says that there's a couple of things going on here.
Most importantly, that the issue is not quite as important as life, liberty, and possessions, and most importantly, that if the government makes a mistake by not giving you full due process, that mistake can be corrected.
So in other words, if they don't give you due process and you get cheated on your social security, at the worst, the government can give you the stuff that you were owed a little bit later.
It's not perfect, but the mistake can be corrected.
When you're blowing someone up, well, there's no going back.
Dead is dead.
Hey, by the way, and we're already over time, and this is just sort of a footnote besides the point, but I gotta ask you what you think of this.
Why do you think that they killed his son?
You know, that's never been explained.
There's never been any discussion of that anywhere that I've seen, and I've not been able to find out.
I mean, when Brennan says he suspects something's going on there, but he certainly, it was an accident as far as he's concerned or something, that kind of thing, that makes me think it was quite deliberate, maybe just because he knew too much about his father's relationship with the U.S. government prior to his current predicament, that kind of thing.
Bad for a magazine article?
You know, I can only speculate, but leaving aside the question of accident and leaving aside the possibility that the son was in the wrong place at the wrong time, that they were actually blowing up somebody else, you know, you can't help but thinking about the way that many Arab people think, which is that you don't just, the concept of revenge in many Arab cultures is that you're basically allowed to kill three relatives in return for each of your relatives that was killed unjustly.
And so the idea that the United States said, we're gonna send a message here, we're gonna kill the guy, then we're gonna kill his son, and maybe there was a third person that wasn't directly related that got killed, too, as a way of sending a message in a way that was culturally quite obvious to Arab people, that, you know, if you mess with the bear, you're gonna get the claw.
Right, but at the expense of all of our rights here forever, precedence.
Yeah, yeah, whatever.
And solidified, exactly.
Yeah, yeah, whatever.
I'm sorry, we're way over time, but thank you so much for your time, Peter.
It's always a pleasure, Scott, and I look forward to talking with you again soon.
Thanks again.
That's Peter Van Buren, everybody, he's at tomdispatch.com, writing about the death of the Fifth Amendment here, and we'll be right back with Mitchell Prothero in just a sec, y'all.
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