The analogy is not as ludicrous as it may appear. Gaza has been compared to a prison. Without disrespect to the forms of social, architectural and community life that go on there (a place I have never visited), some analogies can indeed be drawn between a prison and Gaza under the Israeli/Egyptian blockage, namely: collective punishment, overwhelming (and often irrational) security rationalities, and the cycle of resistance that often takes the form of empowering the most violent criminal gangs (which is my view of Hamas for the record).
But the light shone by the May 31st Israeli assault on the Gaza bound flotilla is more about the fatal problems of governing through fear than the conditions of prison life. The Israeli handling of the whole situation, and even much of the critical reaction inside Israel, reflects the limits, indeed the folly, of trying to resolve a political conflict with a "demonize and punish" strategy. Having convinced itself and its public that the enemy inside the "prison" is an irredeemable, unnegotiable threat to its existence, the Israeli political class has trapped itself in a predictable (to its enemies above all) repertoire of military-penal moves that can only inflame internal resistence and degrade the legitimacy of the on-going blockade itself (if not the Israeli sovereignty project as a whole). Meanwhile, its internal political discourse, shaped by the same security logics, can only cycle around the usual technical concerns: were the right troops chosen, tactics utilized, command channels followed, etc.
The end is clearly near for the Gaza prison experiment as Israel finds itself in an unsustainable position. What will happen once the prison gates are open, is of course, not predictable. (But I for one would bet that its better than what we've seen for the last three years of war and conflict).
Would we were so close to breaking out of the US prison experiment. Sadly, on that score the analogy is quite tight. Having convinced ourselves that the prisons hold massive numbers of existential threats, our political class can only cycle around investing ever more of our treasure and legitimacy in a war on crime (and now terror) that cannot ever reduce the fear on which it is based (even if crime goes down, as it has). Meanwhile our internal debate will continue to cycle through issues like re-entry, and alternatives to prison for some non-violent drug offenders, while the reality, that we hold vast numbers of people who could live in their communities without threat to the rest of us disappears in a thousand fragments.
Sadly, on this score, Obama may be as clueless as Bibi
Hope and Change, Hope and Change, Hope and Change
Tuesday, June 1, 2010
Friday, May 28, 2010
Fear This
The BP catastrophe, following the devastating failures of security infrastructure protecting New Orleans during Katrina, is a warning we cannot ignore. We must pivot from the long forty year obsession with violent crime (now terrorism) to address the real threat that is at our door, catastrophic infrastructure under investment. We need a war on infrastructure failure. Forty years ago Charles Manson might have been the scariest thing menacing suburban homes, but today, the combination of a volatile planet, climate change, and systematic underinvestment in our security infrastructure is what is stalking us. This failure of public infrastructure, combined with the need to seek energy resources in extreme circumstances (like 3000 feet under the Gulf of Mexico) has created a new a very real threat to life and property.
For decades we have been told not to worry about our infrastructure. Committed to spending billions of dollars to incarcerate tens of thousands of our troubled neighbors (regardless of the real threat they pose), we simply don't have the money to invest in water pipes, energy systems, electricity grids and other basic infrastructures we need for survival. The devastation of the Gulf is the final alarm. It is time to take stock of the true cost of the investments we must make to achieve some security against these very real threats of fire, flood, earth quake, and disease. We must rewrite our state sentencing laws and ultimately close prisons to re-deploy our resources to the infrastructure front. We must find ways now to make our communities more resilient in the face of the environment/infrastructural threats that our major metropolitan areas now face.
The farce on the border is exactly the wrong direction to go!
Tuesday, May 25, 2010
The Co-Pander-In-Chief Sends Troops to the Border
Of course I understand the need to compromise. Comprehensive immigration reform will require massive doses of tougher enforcement. Fear of "losing control" of the border must be addressed before the shear inhumanity of hunting down undocumented workers and disappearing them from their children without a word can be ended (at least for a few). Still, there are times when the terms of stroking America's unself consciously racialized victim identity is so odious that one must protest. Randal C. Archibold in the New York Times reports that:
Are you kidding? One rancher is dead and drug smugglers may be involved! By those terms Richmond and Oakland should be occupied by divisions of National Guard troops.
Calls to send troops to the border mounted after the shooting death of a rancher in southern Arizona on March 27; the police suspect the rancher was killed by someone involved in smuggling. Advocates of a new state law in Arizona that gives the police a greater role in immigration enforcement also emphasized what they considered a failure to secure the border as a reason to pass the law.
Are you kidding? One rancher is dead and drug smugglers may be involved! By those terms Richmond and Oakland should be occupied by divisions of National Guard troops.
Shaming the Three Strikes Law
If we are to ever escape the gravitational pull of mass incarceration, we are going to need not just more jeremiads against our current regime, but positive accounts of pathways out. Emily Bazelon in the Sunday Times Magazine provides just such an optimistic account of an emerging challenge to the hegemony of California's toxic "Three-Strikes" law which is rapidly filling its prisons with expensive to manage (because largely hopeless) and permanent prisoners. Her account is especially interesting because it links up two elements generally missing in the discussion of whose responsible for mass incarceration which tends to focus on governors, legislatures, correctional officer unions. Bazelon focuses on the interesting alignment of a Republican District Attorney of Los Angeles (now running for Attorney General), and a law school clinic at Stanford aimed at challenging 3-Strike sentences through collateral appeals.
The 1994 law, enacted by a panicking legislature and then sealed in the Constitution by voters at the high-tide of governing through crime in California and the United States. The law's success was widely attributed to public revulsion over the murder of 12 year old Polly Klaas. But the kidnapping and murder of young girls was a rare event in any community then and now. As Frank Zimring and his coauthors suggested in their 2003 book on Three Strikes, Punishment and Democracy, the law was a really a vote of no-confidence in government itself. Coming, as it did, more than a decade into California's prison boom, 3-Strikes marked the fatal contradiction of governing through crime; that it makes people trust government even less over time.
Unlike most Three-Strikes laws that discharged the pent up populist punitiveness of that politically frustrated year (Clinton's promised national health program crashed and burned) in largely symbolic measures, California's law was designed to maximize the incarceration fall out by applying to non-violent, non-serious crimes (for the 3rd strike) and producing a doubling of the sentence for a second serious or violent crime. According to Bazelon's reporting:
Efforts to reform the law, including a 2004 voter initiative, have been defeated by a coalition of law enforcement organizations and virtually the entire political class of the state.
Bazelon's focus on Los Angeles DA Steve Cooley highlights the enormous power that laws like 3-Strikes have given prosecutors in California and all over the country. In California, where parole release applies to only a handful of life sentence crimes (including 3-Strikers after 25 years), prosecutors have unique authority to decide how many people will go to California prisons and for how long. Any felony can warrant a state prison term, and thanks to the ratcheting up of sentence ranges over the years, relatively few even permit probation as an option. Three-Strikes operates as a kind of individual "nuclear option" that prosecutors can use at will against a very wide range of repeat offenders.
As Bazelon reports, Cooley has set himself apart from other DAs in the state by explicitly stating that three strikes should only be used against a select group of eligible defendants:
Cooley, who would retain much of 3-Strikes prosecutorial power even under his reform proposal, is anathema to fellow DAs who have virtually unanimously rejected his modest reform proposal. Cooley's example suggests that much of the state's problem could be solved by a tacit alliance between the DAs of largest population counties even without a statewide fix but they would have to brave the antagonism of the organized DAs of the state. But it also underscores the difficulty of escaping mass incarceration when elected politicians with a built in incentive to campaign on tough sentences are effectively in charge of how much money we spend on prisons. Bazelon see's Cooley's possible election as Attorney General (he is the leading Republican contender at the moment) as a pathway to a statutory reform of Three-Strikes long the Cooley lines. But if his reform ideas would hardly address the powerful incentives to off-load local offenders into state incapacitative custody (and financial responsibility) that will remain with county level DAs. Indeed, as AG Cooley may well want to mend fences with his fellow DAs (if he ever hopes to be Governor), suggesting that his 3-Strikes proposals are likely to be his closing not his opening
This is why the other side of Bazelon's imagined coalition is so important. It may seem unlikely that a boutique clinic like Stanford Law School's Criminal Defense Clinic, could make much of a difference in this situation. As the founding director, Michael Romano, freely admits, they cherry pick cases to find the most sympathetic possible 3-Strikers, leaving scores of other inmates with little hope of relief. I had a chance to visit with Romano, Clinical Fellow Galit Lipa, and the spirited band of students who staff the nation's only clinic devoted exclusively to three strikes prisoners the Thursday before Bazelon's story appeared to talk about the broad picture of overturning mass incarceration in California.
Nobody believes this can be accomplished one case at a time. But the victories that the clinic has been winning, discussed in Bazelon's story, point to a possibility unlikely to surface this year (or any time soon) in the electoral political field, that is a sense of shame. The clinic's legal arguments are also factual ones. They present judges with the spectacle of individuals cast into a hopeless fate of likely permanent imprisonment based on the premise not that they deserve it for their crimes, but expressly on the grounds that our security requires their total loss of freedom, security, or hope. That is a trade off that has become far more politically visible since 1994 largely because of the war on terror. It is not that judges, let alone the broad public, is unwilling to make that kind of sacrifice (indeed the war on terror may have made us more prepared to do so). But judges and the public appreciate that to make this trade off without some basic guarantees of the quality of the risk assessment on which this individual is going to be cast into hell (not for his sins, but for his future dangerousness) is to deny the basic humanity and dignity of the individual. In the criminal justice system, that guarantee has to come from the adversary process; that reflexive exercise of prosecutorial discretion in the name of public interest and justice, and the vigorous contestation of the prosecutorial case for dangerousness by defense lawyers with resources and skills to assess criminal risk.
In this context three strikes is a disgrace. There is no pretense of an adequately investigated and tested assessment of risk. The entire system should be struck down as "degrading treatment" under Article 5 of the Universal Declaration of Human Rights (to which we are a signatory). The absence of an effective judicial remedy does not doom this human rights based challenge. As we have shown with climate change and with issues like obesity, Americans are capable of being embarrassed by their own excess consumption and supporting change. Three Strikes is to the consumption of security what McDonald's Happy Meals are to obesity and what the Ford Expedition is to climate change. Hopefully the work of the clinic, and possibly Steve Cooley's campaign (if he is forced to defend against attacks on his reform proposals) will begin to make more visible to Californian's just how shameful their consumption choices in criminal justice really are.
The 1994 law, enacted by a panicking legislature and then sealed in the Constitution by voters at the high-tide of governing through crime in California and the United States. The law's success was widely attributed to public revulsion over the murder of 12 year old Polly Klaas. But the kidnapping and murder of young girls was a rare event in any community then and now. As Frank Zimring and his coauthors suggested in their 2003 book on Three Strikes, Punishment and Democracy, the law was a really a vote of no-confidence in government itself. Coming, as it did, more than a decade into California's prison boom, 3-Strikes marked the fatal contradiction of governing through crime; that it makes people trust government even less over time.
Unlike most Three-Strikes laws that discharged the pent up populist punitiveness of that politically frustrated year (Clinton's promised national health program crashed and burned) in largely symbolic measures, California's law was designed to maximize the incarceration fall out by applying to non-violent, non-serious crimes (for the 3rd strike) and producing a doubling of the sentence for a second serious or violent crime. According to Bazelon's reporting:
About 3,700 prisoners in the state are serving life for a third strike that was neither violent nor serious, according to the legal definition. That’s more than 40 percent of the total third-strike population of about 8,500. Technically, these offenders are eligible for parole after 20 years, but at the moment, the state parole board rarely releases any prisoner early.
Efforts to reform the law, including a 2004 voter initiative, have been defeated by a coalition of law enforcement organizations and virtually the entire political class of the state.
Bazelon's focus on Los Angeles DA Steve Cooley highlights the enormous power that laws like 3-Strikes have given prosecutors in California and all over the country. In California, where parole release applies to only a handful of life sentence crimes (including 3-Strikers after 25 years), prosecutors have unique authority to decide how many people will go to California prisons and for how long. Any felony can warrant a state prison term, and thanks to the ratcheting up of sentence ranges over the years, relatively few even permit probation as an option. Three-Strikes operates as a kind of individual "nuclear option" that prosecutors can use at will against a very wide range of repeat offenders.
As Bazelon reports, Cooley has set himself apart from other DAs in the state by explicitly stating that three strikes should only be used against a select group of eligible defendants:
Cooley ran for D.A. on a platform of restrained three-strikes enforcement, calling the law “a necessary weapon, one that must be used with precision and not in a scatter-gun fashion.” In office, he turned his critique into policy. The L.A. district attorney’s office no longer seeks life sentences for offenders like Norman Williams or Gregory Taylor. The presumption is that prosecutors ask for a life sentence only if a third-strike crime is violent or serious. Petty thieves and most drug offenders are presumed to merit a double sentence, the penalty for a second strike, unless their previous record includes a hard-core crime like murder, armed robbery, sexual assault or possession of large quantities of drugs. During Cooley’s first year in office, three-strikes convictions in Los Angeles County triggering life sentences dropped 39 percent
Cooley, who would retain much of 3-Strikes prosecutorial power even under his reform proposal, is anathema to fellow DAs who have virtually unanimously rejected his modest reform proposal. Cooley's example suggests that much of the state's problem could be solved by a tacit alliance between the DAs of largest population counties even without a statewide fix but they would have to brave the antagonism of the organized DAs of the state. But it also underscores the difficulty of escaping mass incarceration when elected politicians with a built in incentive to campaign on tough sentences are effectively in charge of how much money we spend on prisons. Bazelon see's Cooley's possible election as Attorney General (he is the leading Republican contender at the moment) as a pathway to a statutory reform of Three-Strikes long the Cooley lines. But if his reform ideas would hardly address the powerful incentives to off-load local offenders into state incapacitative custody (and financial responsibility) that will remain with county level DAs. Indeed, as AG Cooley may well want to mend fences with his fellow DAs (if he ever hopes to be Governor), suggesting that his 3-Strikes proposals are likely to be his closing not his opening
This is why the other side of Bazelon's imagined coalition is so important. It may seem unlikely that a boutique clinic like Stanford Law School's Criminal Defense Clinic, could make much of a difference in this situation. As the founding director, Michael Romano, freely admits, they cherry pick cases to find the most sympathetic possible 3-Strikers, leaving scores of other inmates with little hope of relief. I had a chance to visit with Romano, Clinical Fellow Galit Lipa, and the spirited band of students who staff the nation's only clinic devoted exclusively to three strikes prisoners the Thursday before Bazelon's story appeared to talk about the broad picture of overturning mass incarceration in California.
Nobody believes this can be accomplished one case at a time. But the victories that the clinic has been winning, discussed in Bazelon's story, point to a possibility unlikely to surface this year (or any time soon) in the electoral political field, that is a sense of shame. The clinic's legal arguments are also factual ones. They present judges with the spectacle of individuals cast into a hopeless fate of likely permanent imprisonment based on the premise not that they deserve it for their crimes, but expressly on the grounds that our security requires their total loss of freedom, security, or hope. That is a trade off that has become far more politically visible since 1994 largely because of the war on terror. It is not that judges, let alone the broad public, is unwilling to make that kind of sacrifice (indeed the war on terror may have made us more prepared to do so). But judges and the public appreciate that to make this trade off without some basic guarantees of the quality of the risk assessment on which this individual is going to be cast into hell (not for his sins, but for his future dangerousness) is to deny the basic humanity and dignity of the individual. In the criminal justice system, that guarantee has to come from the adversary process; that reflexive exercise of prosecutorial discretion in the name of public interest and justice, and the vigorous contestation of the prosecutorial case for dangerousness by defense lawyers with resources and skills to assess criminal risk.
In this context three strikes is a disgrace. There is no pretense of an adequately investigated and tested assessment of risk. The entire system should be struck down as "degrading treatment" under Article 5 of the Universal Declaration of Human Rights (to which we are a signatory). The absence of an effective judicial remedy does not doom this human rights based challenge. As we have shown with climate change and with issues like obesity, Americans are capable of being embarrassed by their own excess consumption and supporting change. Three Strikes is to the consumption of security what McDonald's Happy Meals are to obesity and what the Ford Expedition is to climate change. Hopefully the work of the clinic, and possibly Steve Cooley's campaign (if he is forced to defend against attacks on his reform proposals) will begin to make more visible to Californian's just how shameful their consumption choices in criminal justice really are.
Saturday, May 22, 2010
"The unneccessary cruelty of the law"
The words of the Honorable Jack B. Weinstein, one of the last great lions of the federal judiciary; a living example of what judges were like before governing through crime (see chapter 4) made the very nature of the judicial role (equity, rationality, deliberation) appear subversive in our "war on crime." Weinstein is not, apparently, the first judge to be quesy about mandatory federal sentences for child pornography of at least five years in jail to a person whose only misconduct is having a sexual attraction to children and addressing that attraction by possessing child pornography. He is, however, one of the very few to criticize the law, which suggests that life-tenure is not enough to assure a robust defense of legality, the imagination itself can be crushed by the politics of crime fear.
Reporting in the NYTimes, A.G. Sulzberger quotes Judge Weinstein explaining what not even the most liberal elected politician today is likely to acknowledge.
No doubt, a market for child pornography may in fact create economic incentives to further exploit children to produce it; a risk that government may address. What the judge is suggesting is that a willingness to address that problem with inflexible and punitive criminal laws aimed at the consumer shows a remarkable indifference to notion of individual guilt (or culpability in the language of jurisprudence).
As Sulzberger's reporting suggests, this is not a rare occurrence.
We can defend our children without this kind of unnecessary destruction of life. Cruelty of the law indeed.
Reporting in the NYTimes, A.G. Sulzberger quotes Judge Weinstein explaining what not even the most liberal elected politician today is likely to acknowledge.
“I don’t approve of child pornography, obviously,” he said in an interview this week. But, he also said, he does not believe that those who view the images, as opposed to producing or selling them, present a threat to children.
“We’re destroying lives unnecessarily,” he said. “At the most, they should be receiving treatment and supervision.”
No doubt, a market for child pornography may in fact create economic incentives to further exploit children to produce it; a risk that government may address. What the judge is suggesting is that a willingness to address that problem with inflexible and punitive criminal laws aimed at the consumer shows a remarkable indifference to notion of individual guilt (or culpability in the language of jurisprudence).
As Sulzberger's reporting suggests, this is not a rare occurrence.
The child pornography industry has flourished through the Internet; the number of federal cases grew from fewer than 100 annually to more than 1,600 last year. As the number grew, Congress increased the recommended prison terms and established a mandatory minimum sentence of five years for anyone convicted of receiving child pornography. According to the federal defenders’ office, the average sentence was 91 months in 2007, up from 21 months a decade before.
We can defend our children without this kind of unnecessary destruction of life. Cruelty of the law indeed.
Friday, May 21, 2010
Gov. Schwarzenegger and the "Devolution Solution"
Readers of this blog will know that I've argued for a long time that county government, with its more realistic view of crime and local knowledge, can hold the key to resolving our endless prison crisis if they can take back their prisoners and the resources locked up in state prisons. Hidden in the depths of his "May Budget Revisions" (the adjustments to the annual January budge proposal that is based on actual revenue returns during April tax season and thus considered far more realistic) Governor Schwarzenegger has included a proposal to have some state prisoners serve their time at the county level.
Not as splashy or as publicized as the Governators' January proposal to link prison and higher education funding, this idea reflects some of the best ideas in correctional reform including devolution from state to county and an emphasis on funding programs that can prove success based on empirical evidence (had we followed that model during the 1980s and 1990s, we would have stopped sending more people to prison long ago). As is typical in California in the era of Governing through Crime, the program comes wrapped in promises that it won't apply to prisoners the public really fears "sex offenders", "serious offenders," "violent offenders." These broad categories likely hold many individuals who could be managed more effectively (and more efficiently) at the county level.
If he gives the devolution (from state to county) solution more of his public attention and charisma, it could turn out to be the most important legacy of the Governator. Schwarzenegger deserves huge credit for, in effect, declaring the era of "Big Incarceration Government" over, but until now his forward proposals have lacked seriousness and vision. Perhaps the action hero knows that many failures can be forgiven in a strong ending.
The May Revise (as it is often called) also includes an intriguing note that the state is shifting its policies toward committing sex offenders serving state prison sentences to the state's violent sexual predator program of indeterminate confinement following prison with the result of fewer expected inmates in the program (which has become an expensive new death row with little prospect of release for its residents). As an adjustment to the mental health portion of the budget, the May Revise includes the following:
If anyone has the details behind this shift, please comment.
To improve the success of felony probationers, and other offenders supervised or programmed at the local level, and reduce jail and prison incarceration,
the Administration proposes a system of block grants to provide evidence‑based
programming and other probation and jail services at the local level. The block grants
will be funded from a portion of state savings generated by having non‑sex offender,
non‑serious, non‑violent offenders convicted with sentences of three years or less
to serve their felony sentence in local jails. The state will provide the counties with approximately $11,500 per offender, to be allocated at the local level, for programs and services such as probation programming, drug courts, and alternative custody. A decrease of $243.8 million in 2010‑11 is associated with this proposal.
Not as splashy or as publicized as the Governators' January proposal to link prison and higher education funding, this idea reflects some of the best ideas in correctional reform including devolution from state to county and an emphasis on funding programs that can prove success based on empirical evidence (had we followed that model during the 1980s and 1990s, we would have stopped sending more people to prison long ago). As is typical in California in the era of Governing through Crime, the program comes wrapped in promises that it won't apply to prisoners the public really fears "sex offenders", "serious offenders," "violent offenders." These broad categories likely hold many individuals who could be managed more effectively (and more efficiently) at the county level.
If he gives the devolution (from state to county) solution more of his public attention and charisma, it could turn out to be the most important legacy of the Governator. Schwarzenegger deserves huge credit for, in effect, declaring the era of "Big Incarceration Government" over, but until now his forward proposals have lacked seriousness and vision. Perhaps the action hero knows that many failures can be forgiven in a strong ending.
The May Revise (as it is often called) also includes an intriguing note that the state is shifting its policies toward committing sex offenders serving state prison sentences to the state's violent sexual predator program of indeterminate confinement following prison with the result of fewer expected inmates in the program (which has become an expensive new death row with little prospect of release for its residents). As an adjustment to the mental health portion of the budget, the May Revise includes the following:
A decrease of $7.2 million in the Sex Offender Commitment Program to reflect anticipated savings in the Sexually Violent Predator Program primarily due to a shift in the type of referrals from the California Department of Corrections and Rehabilitation.
If anyone has the details behind this shift, please comment.
Monday, May 17, 2010
Extrajudicial Killing of American Citizens: What Are the Limits?
The Obama administration's desire to suspend Miranda warnings for terrorism suspects seems pretty minor today, as the administration has now announced that it is willing to order extrajudicial killings of American citizens. (This is somewhat old news, but it's difficult to keep up with all of these presidential innovations.) Anwar Al-Awlaki is an American citizen living in Yemen (and American-born as well, which matters politically, though it shouldn't).
The argument for this decision basically comes down to: “American citizenship doesn’t give you carte blanche to wage war against your own country. If you cast your lot with its enemies, you may well share their fate.”
The problem, again, is that apparently the executive also gets to decide what counts as "waging war" and what does not, without much input from the other two branches (which, in days of yore, were also considered to have a role in the wartime decision-making apparatus). There is no judicial oversight whatsoever here, nor any set procedure to be sure that the citizen is actually waging war against the U.S. From the NYT article: “Congress has protected Awlaki’s cellphone calls,” said Vicki Divoll, a former C.I.A. lawyer who now teaches at the United States Naval Academy. “But it has not provided any protections for his life. That makes no sense.” And who can say if administrative oversight in the CIA, not an organization known for public transparency or accountability, is adequate?
Awlaki's seems like an easy case as far as guilt goes (though those of many suspects do) -- he has clearly "cast his lot with America's enemies." Future cases might not be so easy, and judicial oversight or mandated congressional procedures based on constitutional rights will be sorely missed. The erosion of civil liberties (although, really, it seems parochial to use that term to refer to such a severe "deprivation" thereof) takes place piecemeal, via cases likely to garnish a good amount of public support, like this one. But it is precisely at these times that we should certify the limits of executive power.
The administration's arguments here do not foreclose the possibility of ordering the CIA to kill an American suspected of "waging war" while he's in Dallas or Chicago. They also don't foreclose allowing the CIA to delegate responsibilities to other law enforcement agencies (and who knows how the factfinding process even worked). And after all, the War on Terror is no traditional war, and we all know that that has led to major "innovations" in the government's prosecution of it. As the government turns wartime tactics, whether surveillance or actual killing, onto American citizens, the War on Terror becomes increasingly indistinguishable from the War on Crime. But it's now far less assailed by the kinds of criticisms from the mainstream American left than it was during the Bush era.
The argument for this decision basically comes down to: “American citizenship doesn’t give you carte blanche to wage war against your own country. If you cast your lot with its enemies, you may well share their fate.”
The problem, again, is that apparently the executive also gets to decide what counts as "waging war" and what does not, without much input from the other two branches (which, in days of yore, were also considered to have a role in the wartime decision-making apparatus). There is no judicial oversight whatsoever here, nor any set procedure to be sure that the citizen is actually waging war against the U.S. From the NYT article: “Congress has protected Awlaki’s cellphone calls,” said Vicki Divoll, a former C.I.A. lawyer who now teaches at the United States Naval Academy. “But it has not provided any protections for his life. That makes no sense.” And who can say if administrative oversight in the CIA, not an organization known for public transparency or accountability, is adequate?
Awlaki's seems like an easy case as far as guilt goes (though those of many suspects do) -- he has clearly "cast his lot with America's enemies." Future cases might not be so easy, and judicial oversight or mandated congressional procedures based on constitutional rights will be sorely missed. The erosion of civil liberties (although, really, it seems parochial to use that term to refer to such a severe "deprivation" thereof) takes place piecemeal, via cases likely to garnish a good amount of public support, like this one. But it is precisely at these times that we should certify the limits of executive power.
The administration's arguments here do not foreclose the possibility of ordering the CIA to kill an American suspected of "waging war" while he's in Dallas or Chicago. They also don't foreclose allowing the CIA to delegate responsibilities to other law enforcement agencies (and who knows how the factfinding process even worked). And after all, the War on Terror is no traditional war, and we all know that that has led to major "innovations" in the government's prosecution of it. As the government turns wartime tactics, whether surveillance or actual killing, onto American citizens, the War on Terror becomes increasingly indistinguishable from the War on Crime. But it's now far less assailed by the kinds of criticisms from the mainstream American left than it was during the Bush era.
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