Shoot First, Justify Later

Maui Time | November 28, 2012
Our Police State Does What It Wants, Then Writes a Memo

Imagine that you were the president of United States. Now think what you would do if you or one of your advisers proposed an idea—a great idea, one that solved a big problem—that was radical to the point of possibly crossing the legal line into unconstitutionality.

You'd want to lawyer that sucker, right? After all, the last thing you would want to do is break the law. You wouldn't want to be accused of running off half-cocked in violation of your inaugural oath to preserve and protect the Constitution. You wouldn't want to risk a scandal, an investigation, or even impeachment.

Now imagine that you were a chief of police. Again, imagine that you or one of your officers came up with a great new approach for tracking down bad guys, but that the idea was so novel that you couldn't be sure that arrests made using your new tactic would hold up in court. What would you do? I know what I'd do: I'd consult legal counsel. You probably would too. You'd want to know where you stood so that you and your policemen wouldn't get into trouble, and your prosecutions would hold up in court.

Check first, act second. Logical. But that's not how presidents or cops do things in today's might-makes-right, do-what-you-feel-like-and-come-up-with-a-justification-for-it-later era.

Case in point: Since 2009 President Obama has ordered the CIA and the military to launch more than 300 drone strikes against people in Pakistan, Afghanistan, Yemen, Somalia and other countries, killing more than 2500 people–98% of whom were innocent, and the other 2% of which posed no threat whatsoever to Americans. (Obama killed those 2% as a favor to the U.S.-backed dictatorships they were fighting. According to The Times: "For at least two years in Pakistan, partly because of the CIA's success in decimating Al Qaeda's top ranks, most strikes have been directed at militants whose main battle is with the Pakistani authorities or who fight with the Taliban against American troops in Afghanistan.")

All of these bombings and murders were committed minus the thinnest veneer of legal justification. However, now it has come out that during the final months of the 2012 presidential campaign, when polls showed that Mitt Romney had a chance of winning, Obama and his advisers gathered to begin work on a legal framework for the drone program, a set of rules that would determine how targets are picked.

"There was concern that the levers might no longer be in our hands," an Obama official told The New York Times, speaking on condition of anonymity (always a good idea when gossiping about a boss with an itchy drone joystick).

"The effort, which would have been rushed to completion by January had Mr. Romney won, will now be finished at a more leisurely pace," the leaker said.

Obama referenced his retroactive drone legalization project on October 18. "One of the things we've got to do is put a legal architecture in place, and we need Congressional help in order to do that, to make sure that not only am I reined in but any president’s reined in terms of some of the decisions that we’re making," he told Jon Stewart.

Two-thousand five hundred dead men, women and children in, and that's when they start hanging the legal window dressing? Isn't this the sort of thing Obama should have thought about back in January of 2009? For that matter, shouldn't George W. Bush, who originated the drone assassinations after 9/11, been required to put forward some sort of constitutional and legal basis before firing missiles at Afghan wedding parties?

You'd think Congress would take an interest in investigating such a radical expansion of presidential power. But no, in what passes for a democracy that's supposedly protected from extreme behavior by a system of checks and balances and a separation of powers, the legislative branch took no interest whatsoever in a president—make that two presidents—who secretly claimed the right to murder anyone they please, even a U.S. citizen on American soil, without any accountability whatsoever?

This post-9/11 culture of top-down lawlessness has filtered down to local police departments, many of which have begun routinely searching the cellphones of suspects they arrest. During the Occupy Wall Street protests of fall 2011, many activists reported having their smartphones hooked up to police department computers and drained right in front of them, presumably to mine them for contact information and other data.

Phone companies told Congress that they turned over 1.3 million records in 2011 alone to police departments seeking location data, e-mails, text messages, phone records and other data about their customers—i.e., you and me.

It's easy to see why cops would want to collect as much information as they can from those they deem to be criminals—although, under the system of laws we used to have, suspects are legally innocent until proven guilty—but how can they possibly justify enacting such a radical new policy before first obtaining authorization from the courts?

Most people want to think their political leaders and law enforcement authorities mean well and are using their powers wisely. And that's what they want us to believe. In January 2012, for example, President Obama described the drone killings as "a targeted, focused effort at people who are on a list of active terrorists." But, according to The Times, the program has broadened into something far more sinister and cynical that few Americans would support. For example, "the CIA and the military have carried out 'signature strikes' against groups of suspected, unknown militants…for instance, [random] young men toting arms in an area controlled by extremist groups."

Unchecked power runs wild. Cellphones are one example. When New Yorkers file an NYPD police report that their phone has been stolen, the cops routinely subpoena your records beginning from the day of the theft. Cops are supposed to use the records to find the culprit.

In reality, however, New York's Finest aren't exactly pounding the pavement to find your nicked iPhone. What's they're really after, reports The Times, is a building its Enterprise Case Management System database, "a trove of telephone logs, all obtained without a court order, that could conceivably be used for any investigative purpose."

No wonder the Obama Administration's Department of Justice—which is charged with protecting your rights—says cellphone users have "no reasonable expectation of privacy."

Why are these guys getting away with murder—literally? Because we're letting them.

(Ted Rall's is the author of "The Book of Obama: How We Went From Hope and Change to the Age of Revolt." His website is


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