The Star Chamber
Reuters describes a panel of officials who can mete out a death sentence:
(Reuters) - American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.
There is no public record of the operations or decisions of the panel, which is a subset of the White House's National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.
Extreme? But al-Awlaki was a threat; and extraordinary times call for extraordinary measures. That was also the argument of English officials who set up the Star Chamber, in which persons who could not be tried under the ordinary courts could still be pursued within its secret precincts. It was aimed at the first instance, against villains who were 'above the law'.
The Star Chamber (Latin: Camera stellata) was an English court of law that sat at the royal Palace of Westminster until 1641. ... the court was set up to ensure the fair enforcement of laws against prominent people, those so powerful that ordinary courts could never convict them of their crimes. Court sessions were held in secret, with no indictments, no right of appeal, no juries, and no witnesses. Evidence was presented in writing. Over time it evolved into a political weapon, a symbol of the misuse and abuse of power by the English monarchy and courts.
Over time, the Star Chamber something else: an instrument of political retribution for the powers-that-be. Its evils were remembered in the US Constitution which was determined not to repeat them.
The historical abuses of the Star Chamber are considered a primary motivating force behind the protections against compelled self-incrimination embodied in the Fifth Amendment to the United States Constitution. The meaning of "compelled testimony" under the Fifth Amendment—i.e., the conditions under which a defendant is allowed to "take the Fifth"—is thus often interpreted via reference to the inquisitorial methods of the Star Chamber.
As the U.S. Supreme Court described it, "the Star Chamber has, for centuries, symbolized disregard of basic individual rights.
Christopher Hitchens, writing for Slate argues that states must find some way to thread the fine balance between "those who orchestrate this little carnival of mayhem and social corrosion [and] are able to do so from areas that are beyond our legal jurisdiction but within our military reach, and to taunt us while doing so" and the justifiable concern over processes which "add its own citizens to a death list that is compiled by methods and standards unknown". Because of the difficulty of achieving that balance, Hitchens says that those who would criticize President Obama "are under a heavy obligation to say what they would do instead".
Governments through time have attempted to do exactly that. The need to wage World War 2 and the Cold War -- and even the more recent War on Terror -- has already created a number of institutions within Washington. For example, the United States Foreign Intelligence Surveillance Court (FISA) established in 1978 during the Carter Administration, has the power to approve surveillance warrants.
Each application for one of these surveillance warrants (called a FISA warrant) is made before an individual judge of the court.Like a grand jury, FISC is not an adversarial court: the federal government is the only party to its proceedings. However, the court may allow third parties to submit briefs as amici curiae. When the Attorney General determines that an emergency exists he may authorize the emergency employment of electronic surveillance before obtaining the necessary authorization from the FISA court, after which the Attorney General or his designee must notify a judge of the court not more than 72 hours after the Attorney General authorizes such surveillance.
There is also the Patriot Act, where surveillance powers were extended. Then of course there are the 3-letter agencies. What distinguishes the most recent "secret panels" is that unlike those older mechanisms, whose work is classified but whose institutional mechanics are specified, the panels are themselves shrouded by a veil. Nobody actually knows how the administration's panels work. Reuters notes that that even the Justice Department memorandum justifying the legality of the procedure has not been released.
Conservatives criticized Obama for refusing to release a Justice Department legal opinion that reportedly justified killing Awlaki. They accuse Obama of hypocrisy, noting his administration insisted on publishing Bush-era administration legal memos justifying the use of interrogation techniques many equate with torture, but refused to make public its rationale for killing a citizen without due process.
Some details about how the administration went about targeting Awlaki emerged on Tuesday when the top Democrat on the House Intelligence Committee, Representative Dutch Ruppersberger, was asked by reporters about the killing.
The process involves "going through the National Security Council, then it eventually goes to the president, but the National Security Council does the investigation, they have lawyers, they review, they look at the situation, you have input from the military, and also, we make sure that we follow international law," Ruppersberger said.
Harvey Silvergate, blogging for Forbes, reemphasizes this point. He reproduces an exchange between Jake Tapper and Jay Carney in which Tapper unsuccessfully presses Carney to reveal some of the thinking or process behind the the deicsion to hit Anwar al-Awlaki, an al-Qaeda operative who was an American citizen. Carney basically says that he can't discuss the either the process or the criteria by which a person might be sentenced to death.
Jake Tapper: You said that Awlaki was demonstrably and provably involved in operations. Do you plan on demonstrating or proving that?
Jay Carney: He is clearly, I mean provably might be a legal term, but I…think it has been well established, and it has certainly been the position of this administration and the previous administration, that he is, uh, was a leader in AQAP [Al Qaeda in the Arabian Peninsula], that AQAP was a definite threat, was operational, planned and carried out terrorist attacks that fortunately did not succeed but were extremely serious…including the would-be Christmas day bombing 2009…I wouldn’t know of any credible terrorist expert who would dispute the fact that he was a leader in Al Qaeda in the Arabian peninsula and that he was operationally involved in terrorist attacks against American interests and citizens.
Jake Tapper: Do you plan on bringing before the public any proof of these charges?
Jay Carney: Again, the question makes us, it has embedded within it assumptions about the circumstances of his death that I’m just not going to address.
Jake Tapper: How on earth, I really don’t understand, he’s dead, you were asserting that he had operational control, of the cargo plot, and the Abdulmutallab plot, he’s now dead. Can you show us, or the American people, or has a judge been shown…
Jay Carney: I, I’m not going to go any further than what I’ve said about the circumstances of his death, and the case against them, which you’re linking, and, and uh, I think that…
Jake Tapper: No, you, you said that he was responsible for these things
Jay Carney: Yes, but again…
Jake Tapper: Is there going to be any evidence presented?
Jay Carney: Uh, you know, I don’t have anything for you on that.
Silvergate is uneasy because nobody seems eager to tell the public how the process works. Secondly, nobody has explained why the existing procedures and systems are inadequate to the task. Until more information is forthcoming, the whole process really comes down -- as Hitchens said -- to an unknown set of officials, acting according to an unknown set of criteria using secret evidence to order the execution of an unpublished list of people.
While secrecy is important in wartime, there must exist some proportionality between the means and the ends. And it is this disproportion that makes the Tapper-Carney exchange so intriguing. The dense shroud around it suggests the "secret panels" are either about much more than taking out Anwar al-Awlaki and his wannabees or a paranoid excess. As Tapper himself suggested, but did not pursue, the entire process and the secrecy around it would be absurd in the context presented; it would be like shooting a squirrel with an institutional elephant gun. But an elephant gun, once glimpsed, implies an elephant or bigger game than squirrels. If that is speculative, it is only because so little information about what the program actually consists of exists and hence the temptation to put on a tinfoil hat. Speculation on the panels will end, of course, when hard information about it begins.
What ended the Star Chamber system was the metamorphosis of the Star Chamber system itself. It eventually evolved away from a special way to get at "untouchables" to become a system of political vendetta and corruption. At that point, it destroyed its master's political support and was abolished by the Long Parliament in 1641.
A secret system retains its legitimacy only for as long as "the Crown" retains the confidence of the public. Once that confidence is lost, then every Star Chamber system becomes suspect. With the administration's popularity at a nadir -- the Washington Post cites polls saying 40% of Americans strongly disapprove of it -- and racked by scandals like Fast and Furious, can they long get away with simply saying: trust me?