07/27/12 – Ryan Alford – The Scott Horton Show

Alright y'all, welcome back to the show.
I'm Scott Horton, scotthorton.org.
And I lied, we're going to have to talk about the Barack Obama's suicide bomber war in Syria.
America on the side of the Al-Qaeda and Iraq veterans who are now fighting their next big battle.
That'll have to wait.
Because now it's time to go to our first guest.
It's Ryan Alford.
He is a professor of law and a legal historian at the Ave Maria School of Law in Florida.
Welcome to the show, how are you doing?
Very well, Scott, how are you today?
I'm doing great, appreciate you joining us.
Oh, my pleasure.
Okay, so the occasion for your appearance on the show here today is I guess you heard my interview with Nathan Wessler from the ACLU.
They are suing President Barack Obama for murdering Anwar al-Awlaki and his 16 year old son as well.
Both of them American born, American citizens.
And so apparently you heard that interview and you heard me ask Nathan Wessler some kind of question comparing Obama to the King of England.
And you wanted to clarify exactly along the lines of whether for example King George III, the one that the American colonies rebelled against back in the revolution of 76, whether he claimed the power to murder American citizens or Englishmen, I guess, the way that Barack Obama is claiming this power to murder Americans.
Exactly right.
And I think this lawsuit is incredibly important because it's the first time that this has happened in American history that a president has claimed this power.
And I guess the question is what if the relevant precedent would we see a king like George III asserting that power at the time of the revolution?
Someone who was considered by the American patriots to be a tyrant, behaving in ways that are entirely unacceptable and illegal.
Would he have tried to do that?
And the answer is actually no.
Well you know what though?
Wait a minute.
Before we even get back to King George, I'm actually just astounded and fascinated that no American president had ever claimed this power.
Not even Abraham Lincoln?
Not even Franklin Roosevelt?
Or Richard Nixon?
Not even close.
What we're talking about is the power of the executive to say well, we think that this person should be marked out for death.
Completely avoiding any of the protections of the Bill of Rights, and I would say more importantly the Bill of Tainter Clause of the U.S. Constitution.
Completely unprecedented.
We saw the last time that anyone tried to do this in American history was actually prior to the writing of the American Constitution.
In Virginia and New York, bills of tainter were passed naming loyalists, people fighting against the American Patriots.
And it actually happened in Virginia that someone named Josiah Phillips was targeted for death as an outlaw pursuant to an act of the Virginia Colonial Legislature during the Revolutionary War.
And this was incredibly controversial.
All the people we see later going on to write the Constitution, James Madison, Thomas Jefferson, and John Marshall, and then also the first Attorney General of the United States, Edmund Randolph, were appalled by this.
And this was one of the key motivations for the key procedural protection of the Constitution against any targeting of American citizens through what's called the Bill of Tainter Clause.
And for people who haven't read the Constitution lately, that's Article I, Section 9 where they have before the Bill of Rights, some restrictions to clarify and restrict the powers of the government there.
And this is where ex post facto laws are banned as well.
And a Bill of Tainter means the legislature writes a law that applies only to one person or one group of people.
And instead, all laws must apply to everyone equally, at least in theory, right?
Okay, now you're saying that because that's our modern conception of a tainter.
Oh, see, I don't even know what it is then.
All I know is junior college taught by Democrats.
Originally, a Bill of Tainter is you can't kill someone with an act of legislature.
And the reason why we think we can't pick someone up for special treatment is because no one's tried to do this since the Constitution was written, because it was so abhorrent to the Founding Father.
I see, so it really meant assassination in the first place.
Precisely.
And what it's saying is that a legislature can't do this, right?
So it's directly written in the American Constitution that a legislature can't pass a law saying someone should be killed.
Yeah, but it doesn't say you can't sign a presidential decision directive.
This is amazing, right?
That's what they're going to say right now.
Well, that clause protects us against Congress, but doesn't protect us against presidential orders.
You'd have to be completely ignorant about English and American history in the colonial period to say that.
But nevertheless, they will make that argument.
That's funny.
I wonder if anyone's going to ask Mitt Romney if when he was referring to Barack Obama's ignorance of Anglo-American heritage, whether he was talking about the Magna Carta and the rule of law that protects American civilians from unreasonable searches and murders, etc.?
This is just the forgotten clause.
No one ever refers to it or has much knowledge of it, because we've never seen power being pushed quite this far in the United States, because we had such a strong tradition of substantive due process rights and procedural due process to the Fifth Amendment that we haven't really needed the protections of the Bill of Attainment Clause, except in these penumbras where it's, well, someone's taking away your economic rights, someone's taking away your livelihood with a special law that perhaps marked you out particularly.
But nothing even close to this.
Coming back to your original question about whether or not a king would have claimed this power, this is the issue that we have now, because does Congress have a clear ban, and the President is not subject to that ban under the Bill of Attainment Clause?
The argument that someone like John, you would make is that, well, we have certain restrictions on legislature, but we need the executive to have this power, right?
So what that's ignoring is the fact that the Bill of Attainment Clause, it builds on Magna Carta.
It's not creating a special restriction on Congress.
It's broadening out the restrictions of Magna Carta, which prohibit the executive from doing this, which had been in place and had been observed without any exception for 500 years previous to the American Revolution.
It's extending that to the legislative process.
Because in England, it was still going on.
They were still passing laws marking out people for death.
I mean, George Washington, James Madison, they all were worried that they would be targeted via that kind of legislation being passed in London, right, during the Revolutionary War.
So that was still going on.
Congress then said, well, the framers say, we can't have it, right?
But the argument that they were saying, well, in prohibiting Congress from doing this, we're essentially Magna Carta, letting the executive do it.
That's just preposterous.
Now, the deal is with the Magna Carta, too, though, is even though King John was really forced to do it, it's still written in the form of, I, the King, grant you all these rights.
And the way I remember it, anyway, was that Alexander Hamilton, probably cynically, I don't know, said that we shouldn't have a Bill of Rights to the U.S. Constitution at all.
Because that would be like the King granting subjects rights, when the whole theory here is that we all have the right, and that the government only has the powers that the born free people give it, in the first place.
So we will get the entire premise of our government off on the wrong foot.
And then, I guess, that's partially why they wrote in the preamble to the Bill of Rights that this is a list of restrictive clauses against the government.
It is not a list of granted rights to the people.
It shouldn't even be called the Bill of Rights at all.
It should be called the Bill of Things that the people say the government is not allowed to do.
That's exactly right.
And I think if you would have asked any of the framers if the 9th Amendment was referring specifically to Magna Carta, in saying that, well, we're not excluding any previously existing rights, they would have said, well, of course.
I mean, what kind of a person would say otherwise?
But what's really remarkable is, even before the argument about the Bill of Rights, the framers decided to mention the Bill of the Danger, the practice of picking people for death through legislative acts, in the text of the Constitution itself.
So even though they were kind of worried about, well, are we kind of, you know, making it evident here that it's emanating from the government and are we, you know, perhaps saying implicitly that certain other rights we don't mention and not carrying over, even before they had that discussion, they really felt the need to say no person should be killed by the government without jury trial by placing that in the Bill of the Danger clause of the United States, the unamended United States Constitution.
Well, you know, I was going to say I was going to complain that it's not even a big deal, this huge revolution that Americans don't even really care, but then again, Americans probably don't even really know, because they just won't talk about it on TV, unless Mitt Romney's criticizing Obama for doing it, it's not news.
So, I don't know.
But anyway, we'll be right back more with Ryan Alford, Professor Ryan Alford, after this.
Alright, y'all, welcome back.
I'm Scott Horton.
ScottHorton.org is the website, keep all the archives of the interviews there for you.
Check out the blog, ScottHorton.org/stress.
Alright, we're talking with Ryan Alford.
He is a Professor of Law and a Legal Historian at the Ave Maria School of Law in Florida, and we're talking about this unprecedented claim of power by Barack Obama that he, as the President, can order American citizens put to death, a power that not even the great dictator Woodrow Wilson claimed.
And not George Bush, I guess, you know, if somebody had asked Dick Cheney, he would have said that, of course, George Bush has the plenary authority to do anything or something, no?
Is this really not a power that even the Republicans claim?
They certainly weren't.
I mean, I think that if President Bush would have asserted during his administration, there would have been a lot more uproar about this.
Well, that part is certainly true, yeah.
Well, you know, okay, for example, John, you said that there's no law.
Basically, the President is the commander in chief.
Those are the only words in the Constitution that mean anything, and they mean that his will can override any other part of the Constitution, including, and they specifically said, the Fourth Amendment and the First Amendment.
Like, in other words, they can come and do an unreasonable search review because of the things you say, or the religious beliefs that you hold.
And they could use the military.
Cheney wanted to go ahead and disregard Amendment 5 and 6 and use the military to arrest the Lackawanna 6.
And, of course, they had the military and the CIA kidnap and torture Jose Padilla and Abu Almarri, and so they went ahead and disregarded the Bill of Rights here on American soil plenty, but not up to and including murder?
The one line they didn't cross was that, remember when they first killed an American citizen in a drone strike in Yemen, someone named Kamel Darwish, they claimed that he was collateral damage and he wasn't targeted.
So, the first legal authority that we have for the assassination of American citizens is the OLC memo written by Letterman and Barron for the Obama administration, saying that it's entirely above board as long as there's sort of what they call process within the executive branch, because as the Attorney General has said, due process is not necessarily judicial process.
So, I would say that was the one line the Bush administration wasn't willing to cross, was straight up assassination of American citizens.
Right.
Now, in fact, that was the Lackawanna 7th right there, was that guy Darwish, or at least they claimed.
But, as you said, they were targeting someone else, or at least they said they were targeting someone else, and he happened to be there, and so he shouldn't have been, but they did not make the case.
Well, I don't know, did anybody try to sue them over that or anything back then?
I don't think so, no.
I think the first suits were coming out of...
It would have been a standing issue, so no, I don't think it happened until the ACLU filed suit last year with Al-Awlaki.
And I don't know whether his friends were guilty or not, but they were told that if you don't plead guilty, we'll turn you over to Donald Rumsfeld and George Tenet to be tortured.
That's your plea bargain.
So they said, okay, give us the maximum.
Just keep us in the civilian system.
But anyway, that's kind of a side issue.
But so, now I guess, back to that point about the outrage, obviously George Bush, as you said, there would have been a lot more outrage about this, but because right-wingers typically support this kind of thing, or at least they know how ridiculous it would sound if they opposed this kind of thing, just because it's a Democrat in power, since they just spent eight years defending, torturing people to death, not American citizens, but still, they don't really have a leg to stand on to criticize this kind of thing.
And many of the people leaning left in this country have reason to remain silent about it, because it's their dear leader who's the one doing it.
And so it's only people, I guess, libertarians like myself, people obsessed with the law, like yourself, who even care.
Otherwise, this is really not a big deal in America right now.
It's this absolute worst and most unprecedented claim of executive authority.
I think you're exactly right, and I think it would shock people, though.
I mean, there are some people who really expected there to be a lot of change with the new administration, and they desperately wanted to believe that to be the case, to the point where they're sort of willfully ignorant about what's still going on.
Especially with the Supreme Court and the cases that came down a couple months ago with Guantanamo Bay, with Keith, etc.
But the message we have to send out now is that this is effectively the repeal of Magna Carta.
We're talking about a break from 700 years of Anglo-American legal tradition at this point.
And there are a lot of law professors who wouldn't cry any tears about that, being pragmatists or legal realists.
But I think it's quite shocking that the one red line that no king essentially violated since Edward I has now been crossed and now being justified.
Well, I'm sure this is oversimplification, but, hey, you're the historian.
Tell me what you think.
Carol Quigley in his book Tragedy and Hope develops this theory that the history of liberty in the West is the history of weapons.
And that when pretty much everybody was equally armed with hand-to-hand combat type implements, there was relative liberty in the West.
And then when the professional knights on horseback came, the saddle was invented.
That was the new technology, the saddle.
So now you had specialized guys on horses who had that much more of an advantage over the regular folks.
So that really was the dawn of a new age of tyranny by those with the specialized weapons.
But then came the musket.
And so now a regular guy can blow a knight on horseback right off of his horse and butcher him on the ground.
So how do you like that?
And so now that just happened to be the same time that ships were getting good enough to sail across the Atlantic and the American colonies were being founded.
And that was around the time of the American Revolution.
And this law was written when the average guy with a musket, really if they all wanted to, they could have had another revolution and overthrown George Washington.
He wouldn't have been able to stop the balance of power between the civilians and the state was such.
But now those days are long gone.
And now the governments of the West, and particularly ours, have such specialized weaponry that civilians are, you know, we could have all the AR-15s and the world isn't going to do a thing about their Apache helicopters.
I mean, ask the people of Fallujah, they'll tell you.
So, you know, A-10 Warthogs and all these kinds of things.
We can't all have that.
So now, wrote Quigley, the only thing protecting us is the old law that was written back when the civilians had a gun to the politician's head about it.
And so now if we ditch our old law and we don't, we ban in the tradition and just the insistence and the jealousy of our liberty and our rights under that old law, we are going to live in a technological totalitarian state out of Aldous Huxley or George Orwell or whatever.
It's just the nature of the equipment available to implement it.
That's a really excellent argument and I think that it clearly becomes supported by the argument of this administration where they say that, well, they turn it around on you and they say, well, now we're in phase with drone warfare.
It isn't really warfare at all and it isn't really a fascination at all.
Using very specious arguments about the fact that there's no one piloting a drone within it.
It's being remotely controlled.
And it's amazing that this is when we need the law the most, is when these technological breakthroughs happen.
But they use that as an excuse to say that the law shouldn't apply at all because this is not really, you know, the commitment of troops to hostilities as the War Powers Revolution of 1973 but rather just kinetic operations or whatever you can use it as an event to describe it.
Right.
Yeah, the Fourth Amendment doesn't protect phone calls or GPS tracking or anything.
Thomas Jefferson and James Madison never heard of such a thing.
Right?
But they did understand their power very, very well and they understood the power of a government and the backlash that could ensue in that period when there was relative equality on the level of technology and warfare.
So they tried to create these protections which unfortunately being eroded at, I would say an accelerating rate to the point where we now have the most basic protections with the Bill of the Tender Clause being routinely ignored.
Yeah.
Well, I think it's just almost like a biblical level irony that we've had two chances in a row now to put Mr.
Constitution in power as the President of the United States.
And you look at Barack Obama and how bad he's disappointed everybody and all that.
The counterfactual is so obvious.
If Ron Paul had been elected in 2008 and took power in 2009, we would not be pushing a regime change in Syria right now.
We would not be having FBI agents writing themselves search warrants under the Patriot Act right now.
We would not have an assassinated 16-year-old son of both of them American citizens in Yemen.
None of this would be going on at all.
Every bit of it would be repealed as fast as he possibly could.
There's just no doubt about it.
We all know that he would have said, you know what, political-wise and TV-wise and the intelligence community's complaints and whatever, I don't care.
These executive orders are hereby repealed, etc.
We all know it would have been like that.
The American people had two perfect chances on a silver platter to save some semblance of the rule of law as it governs the state in this country and they told him no.
So screw them, kind of, you know?
I find it really remarkable that still in American public life there's so much genuflection towards the Constitution.
It will be invoked by Mitt Romney or whomever, but then when someone speaks seriously about the protections of the Constitution, the result is inevitably ridicule.
So it's a very schizophrenic attitude, I would say, where the Constitution is held to be the most sacred important thing, except when it actually would do what it's intended to do and restrain the government.
But when someone says, this is what the Constitution is for and what it's fighting for, rather than engaging with their arguments, we see very strange, backhanded ridicule and a failure to engage.
But as people say, sometimes they first ignore you and then they ridicule you and then you win.
We can only hope that that's the case here.
Right, yeah.
Yeah, that it won't be too little too late by then.
Indeed.
Alright, well, thanks very much for your time.
I sure appreciate it.
It's been very interesting and I hope people learned a lot, too.
Entirely my pleasure, Scott.
Okay, everybody, that is Ryan Alford.
He is a professor of law and a legal historian working at Ave Maria School of Law in Florida.
We'll be right back.