Let’s assume that an American critic of U.S. foreign policy goes abroad and travels around the Middle East delivering a series of lectures, speeches, and articles attacking the U.S. invasions and occupations of Iraq and Afghanistan. He refuses to support the troops, saying that when people are engaged in wrongdoing, regardless of their particular occupation, they should not be supported by people of conscience. He repeatedly calls for an end to U.S. imperialism and interventionism, including a termination of all U.S. foreign aid to dictatorships, the Israeli government, and every other regime in the world.
The president calls a super-secret meeting of his super-secret assassination commission, which has the authority to conduct super-secret deliberations on the assassination of people, including Americans. The commission determines that the American critic, as a terrorist sympathizer and a critic of the troops, hates his country and, even worse, is a grave threat to national security and therefore needs to be either captured and tortured to death or assassinated as an illegal enemy combatant in the war on terrorism.
One person on the president’s staff, however, says, “Mr. President, I think such an assassination might be illegal. Americans have the right to criticize their government anywhere in the world. If that American is killed by torture or assassination, you, the military, and the CIA might well be guilty of illegal acts for which all of you could be criminally prosecuted.”
So, what does the president do to protect himself and his troops?
He asks for a legal opinion from the Justice Department’s Office of Professional Responsibility. The OPR delivers an opinion to him saying that since we’re at war against the terrorists, a war that is perpetual in nature, the president can put on his commander-in-chief helmet anytime he wants. When he puts on that helmet, the OPR attorneys tell him, he has all the powers of a military dictator, just like, say, Gen. Augusto Pinochet had in Chile. As such, he wields the power to kill anyone he deems is a threat to national security.
So, the president orders the military and the CIA to kill the American critic either through torture or assassination. His military and his CIA loyally carry out his orders and report back that they have removed the threat to national security.
When the wife and children of the victim sue the president for the wrongful death of their husband and father, the courts will dismiss the suit, holding that the president is immune from liability. The courts will hold that the president has the authority to wage war against the terrorists and that the courts will not second-guess his actions to eliminate threats to national security. Moreover, the courts will hold that the victim was provided plenty of due process during the several hours of secret deliberations by the president’s assassination commission. The courts will also hold that the president acted in good faith by seeking and securing a legal opinion from the OPR authorizing him to terminate threats to national security. Finally, the courts will say that to allow such a suit to continue might result in the disclosure of the standards by which the assassination commission makes its decisions, which would obviously threaten national security.
So, the family sues the military and the CIA for the wrongful killing of their son.
But the courts, again, will immediately dismiss the lawsuit, holding that the troops and the CIA cannot be held liable for doing their job and following the orders of their commander-in-chief. The military and the CIA are immune from all such lawsuits, the courts will hold.
So, the family sues the lawyers at the Office of Professional Responsibility, especially the ones who prepared the legal opinion stating that the killing would be legal. The courts will say, “Oh, no, the lawyers can’t be held liable because they just wrote an opinion. They didn’t kill anyone. Even if their opinion was wrong, it was nonetheless just an opinion, one that the president, the military, and the CIA were free to reject. Immunity for the lawyers too!”
Not at all. The scenario actually describes the type of society under which Americans now live. In fact, it’s not much different, in principle, from the society in which the Chilean people lived under Augusto Pinochet.
Under Pinochet, the military and DINA (Chile’s counterpart to the CIA) were taking people into custody, torturing them to death, and assassinating them. It was all done as part of the war on terrorism and the war on communism. The Chilean courts took the same position that the U.S. courts now take — that since the president, the military, and the CIA were involved in wartime operations, the courts would not second-guess or interfere with their operations.
Thousands of Chilean people were arrested, tortured, and executed, all without trials. The president, the military, and DINA had determined that they were terrorists and communists. The courts declined to interfere with their wartime operations and held that they were immune from lawsuits brought by the families of the victims.
In fact, it was during that time that the CIA worked with the Chilean authorities to execute a young American journalist named Charles Horman, who opposed the Pinochet regime and who apparently was considered a threat to the national security of both Chile and the United States.
Just like President Bush and President Obama, Pinochet sent his forces into other countries to assassinate people, including Chileans living abroad, who were determined to be threats to national security, i.e., terrorists or communists or both. One of these was a former Chilean diplomat named Orlando Letelier, who was living here in the United States and publicly criticizing Pinochet’s policies.
Pinochet’s forces assassinated Letelier and his young assistant Ronni Moffitt on the streets of Washington, D.C. Surprisingly, the Justice Department considered it to be murder, but Pinochet considered as a wartime assassination. Needless to say, the Chilean courts during the Pinochet regime took the same position that U.S. courts take today — that the president, the military, and DINA were immune from liability.
Obviously, there has been a fundamental reordering of American society since 9/11, one that now strongly resembles the military dictatorship of Augusto Pinochet. Like Pinochet, the president now has the omnipotent power to torture Americans to death, or incarcerate indefinitely without trial, or assassinate them. All he has to do is get a favorable opinion from the lawyers and have the military or the CIA do the dirty work and everyone will then be held immune from liability by the courts.
Heck, the least they could have done after 9/11 is secure a constitutional amendment that stated: “The president, the military, and the CIA will now have all the omnipotent powers to wage the war on terrorism (and the war on communism, if necessary) that Chilean military strongman Augusto Pinochet had during his military dictatorship in Chile.”