President Obama’s kill-list memo, detailing the legal rationale for the extrajudicial killing of American citizens, reveals a world of tyrannical political power that used to be the sort of thing Jack Ryan would be dispatched to deal with, but usually to some Baltic republic ruled by an evil tyrant with only one name. The memo is so brazen in its own declaration of universal supremacy I have to wonder if the unnamed authors used a computer for the composition or just let God etch the words on the screen with lightning bolts.
This is what our empire has evolved to: a messianic state with all the fine ornaments of a cult including temples, ministers, and now a prosecutor, judge, and executioner masquerading as an executive branch. Viewing this perversion of a formerly federal system, a citizen of the old republic now stands at a similar vantage point to where Edmund Burke saw the mobs of the French General Assembly. “That assembly, since the destruction of the orders, has no fundamental law, no strict convention, no respected usage to restrain it. Instead of finding themselves obliged to conform to a fixed constitution, they have a power to make a constitution which shall conform to their designs. Nothing in heaven or upon earth can serve as a control on them.”
The kill list’s unofficial title (the actual memo remains classified) tells us all we need to know of its intent: “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force.” The memo’s first page carries this ominous statement of the president’s new “007ish” security clearance, “As detailed in this white paper, in defined circumstances, a targeted killing of a U.S. citizen who has joined al-Qa’ida or its associated forces would be lawful under U.S. and international law.”
Save for Glenn Greenwald, few in the media or the Congress have questioned this new, authoritarian power and few have investigated whether there is any historical and constitutional provision for it. The conclusion will be an inconvenient truth to most of our democracy’s political class and the industrial media complex that derives its existence from imperial hubris.
The operative question is this: If an American citizen is accused of committing treason by making or instigating war against these United States and is doing so while outside her geographical jurisdiction, can the president order an execution? To discover the answer to the query one need look no further than the 1807 treason trial of former vice president and Founding Father Aaron Burr. Burr had committed acts (called “The Burr Conspiracy”) that if they were performed in our modern era, would amount to conspiring with an “associate of Al-Qa’ida.” He organized his army outside of the United States, sought the aid of at least two foreign countries and even planned to anoint himself leader of the newly independent territories of Louisiana and Texas.
After resigning as Jefferson’s Vice President in 1805, Burr began to hatch his conspiracy with his long-time friend and accomplice General James Wilkinson. Burr’s first step was to enlist the aid of a foreign nation and its navy. For this he turned to the British Minister to the United States, Anthony Merry. Merry conveyed the Burr plot to his superior in London, Lord Harrowby in March, 1805. “[T]he inhabitants of Louisiana seem determined to render themselves independent of the United States and that the execution of their design is only delayed by the difficulty of obtaining … an assurance of protection and assistance from some foreign power … It is clear that Mr. Burr means to endeavor to be the instrument for effecting such a connection.”
Burr and Wilkinson proceeded to recruit others including American citizens to their plan, all the while purchasing the arms, supplies, and boats needed. Some of these boats were supplied by future President Andrew Jackson. We must also note that the Jefferson administration was at the time at great odds with the Spanish Empire over Florida and what would become Texas. Americans conspiring to wage military action against Spain’s forces in North America could well have touched off a war with that country. Burr was that conspirator and he knew that Jefferson would respond with naval action at New Orleans and thus made plans to meet it in his pitch to Merry. “In regard to the military aid … two or three frigates and the same number of smaller vessels to be stationed at the mouth of the Mississippi to prevent its being blockaded by such force as the United States could send.”
Burr’s plan begins to unravel like the 2008 McCain campaign it must have inspired. Burr enlisted the sons of Colonel George Morgan in the conspiracy who excitedly tell their famous father of the plan. Morgan, fearing the loss of his sons in more than one way, dashes off a letter to President Jefferson advising him of the plot. It is in Jefferson and the United States’s response to the accusation of treason that the Obama kill-list is demolished.
As I have demonstrated, Burr is a.) a United States citizen, operating outside the United States, b.) in cahoots with foreign entities to make war against a U.S. territory and c.) the U.S. Navy. D.) The “threat” is imminent and e.) The loss of American lives and actual American territory is at stake. Certainly this case merits more severity on the U.S. government’s part than the suspected associations of hostile actors 7,000 miles away. So then, Jefferson should gather some intel, discover Burr’s location and dispatch the 1806 equivalent of a drone to remove him from the kill-list right? Wrong. Jefferson followed the letter of the law, the Constitution.
“Whereas information has been received that sundry persons, citizens of the United States or residents within the same, are conspiring and confederating together to begin and set on foot, provide, and prepare the means for a military expedition or enterprise against the dominions of Spain; I have therefore thought proper to issue this my proclamation warning … all faithful citizens who have been led … to participate in the said unlawful enterprises to withdraw …, and commanding all persons whatsoever engaged … to cease…as they … incur prosecution with all the rigors of the law. And I hereby enjoin …. all officers, civil and military, of the United States, … of the Army or Navy … in searching out and bringing to condign punishment all persons engaged … in the discovery, apprehension, and bringing to justice of all such offenders [emphasis is mine].”
Burr would be captured in the territories of Mississippi, tried by a grand jury and released, then sent to Alabama where he was extradited to Richmond, to stand trial on the charge of treason as defined under Article III, Section 3 of the U.S. Constitution. Burr, unlike those killed by the Obama kill list, would be defended by Founding Fathers Edmund Randolph, the first U.S. Attorney General, and Maryland’s Luther Martin who would famously argue the losing side in McCulloch v. Maryland 10 years on. Burr would be acquitted of all charges in the trial presided over by the Chief Justice John Marshall.
And for those who will say “that was then and this is now,” Jefferson pursued Burr and treason with an energy and vigilance that was so palpable you can feel it seeping from this letter to William Thomson in September of 1807. “The scenes which have been acting at Richmond are sufficient to fill us with alarm. We had supposed we possessed fixed laws to guard us equally against treason & oppression. But it now appears we have no law but the will of the judge. Never will chicanery have a more difficult task than has been now accomplished to warp the text of the law to the will of him who is to construe it.”
Note that Jefferson’s view is that the Constitution, combined with Amendment XI are not sufficient to prosecute treason and therefore another amendment is suggested. Why didn’t Jefferson just secretly gather Secretary of War Henry Dearborn, and Secretary of the Navy Robert Smith, assemble a colonial JSOCs and take the matter into their own hands? Because the rule of law and the oath to defend it were held in high regard, in contrast to our Tyrant King’s dismissals of tawdry impediments to authoritarian power as just another puzzle to be gamed to their advantage.
The Obama kill list is an affront to every citizen who values their liberty with the jealousy Patrick Henry counseled to “suspect everyone who approaches that jewel.” The jewel thieves have won.
Mike Church is a radio host appearing daily on the SiriusXM Patriot Channel. He is an author and editor of “Patrick Henry-American Statesman” and is the writer and director of 7 Docudramas on American history including “The Spirit of ‘76” and the upcoming “Times That try Men’s Souls- Washington’s Crossing.”