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5. Charles Krauthammer's false statement about the US Constitution / Glenn Greenwald

http://www.theguardian.com/commentisfree/2013/mar/15/charles-krauthammer-constitutional-ignorance-foreign-soil

To justify the president's War on Terror policies, the Washington Post columnist spreads a demonstrable myth...

Charles Krauthammer's Washington Post column MARCH 14, 2013, which calls on Congress to enact new legislation authorizing and regulating Obama's drone attacks, is actually worth reading. That's because it highlights the central fact about the Obama legacy when it comes to US militarism, war, and civil liberties. Referencing the monumental shift in how Democrats think about such matters now as compared to the Bush years, he writes:

"Such hypocrisy is the homage Democrats pay to Republicans when the former take office, confront national security reality, feel the weight of their duty to protect the nation — and end up doing almost everything they had denounced their predecessors for doing. The beauty of such hypocrisy, however, is that the rotation of power creates a natural bipartisan consensus on the proper conduct of this war . . .

"Necessity having led the Bush and Obama administrations to the use of near-identical weapons and tactics, a national consensus has been forged. Let's make it open."

That Obama has ushered in a "bipartisan consensus" for these policies - transforming them from the divisive symbols of right-wing extremism into the unchallenged framework of both parties' establishments - is indisputable, one of the most consequential aspects of his presidency. But Krauthammer's real purpose with this column is to mock and excoriate Rand Paul's anti-drone filibuster. As the New York Times describes, there is an increasingly acrimonious split in the GOP about the policies of militarism and civil liberties enacted in the 9/11 era, and neocons like Krauthammer are petrified that the (relative) anti-war and pro-due-process stances articulated by Paul will gain traction. Krauthammer notes that, contrary to the claims of many progressives, Paul's opposition was not merely to killing Americans on US soil, but was broader: it was about assassinating citizens without due process anywhere they may be found. Referencing a Washington Post Op-Ed in which Paul declared that "no American should be killed by a drone without first being charged with a crime," Krauthammer writes: "note the absence of the restrictive clause: 'on American soil'". Here's how Krauthammer describes Paul's real purpose in launching the filibuster:

"Paul's unease applies to non-American drone targets as well. His quarrel is with the very notion of the war on terror, though he is normally too smart to say that openly and unequivocally. Unlike his father, who implied that 9/11 was payback for our sins, Paul the Younger more gingerly expresses general skepticism about not just the efficacy but the legality of the entire war."

That Paul became the first US Senator on the Senate floor to utter the name "Abdulrahaman Awlaki" - the 16-year-old US-born citizen killed by a US drone in Yemen - bolsters Krauthammer's claim that the Paul filibuster was about more than just the use of force on US soil, but rather posed a challenge to the War on Terror premises generally. That is precisely why Krauthammer - along with all other neocons and, notably, many Democratic Party Obama-supporters - are desperate to discredit the Paul filibuster and the sentiments it stoked: regardless of Paul's motives, the filibuster called into question both the wisdom and legality of the entire Endless War approach to Terrorism. But to discredit this, Krauthammer makes a claim about the US Constitution that is so patently false as to be retraction-worthy. He writes (emphasis added):

"Now we're talking about a larger, more controversial issue: the killing-by-drone in Yemen of al-Qaeda operative Anwar al-Awlaki. Outside American soil, the Constitution does not rule, no matter how much Paul would like it to."

That italicizied claim from Krauthammer - that "outside American soil, the Constitution does not rule" - is a very common assertion and thus widely believed. But it is factually false. And there can be no reasonable dispute about this. To begin with, think about what it would mean if Krauthammer's claim were true: does anyone think it would be constitutionally permissible under the First Amendment for the US government to wait until an American critic of the Pentagon travels on vacation to London and then kill him, or to bomb a bureau of the New York Times located in Paris in retaliation for a news article it disliked, or to indefinitely detain with no trial an American who travels to Beijing or Lima or Oslo and who is suspected of committing a crime? Anyone who believes what Charles Krauthammer said this morning - "Outside American soil, the Constitution does not rule" - would have to take the patently ludicrous position that such acts would be perfectly constitutional.

But to see how false is Krauthammer's claim, it's unnecessary to engage in that kind of reasoning. The law is crystal clear on this matter. In 1957, the US Supreme Court decided the case of Reid v. Covert in which this exact question was conclusively decided: does the Bill of Rights restrict what the US Government does to US citizens on foreign soil? The Court answered the question as decisively and unambiguously as the English language permits (emphasis added):

"At the beginning, we reject the idea that, when the United States acts against citizens abroad, it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land."

How can any Washington Post editor read what the Supreme Court said and not compel a retraction of Krauthammer's claim?

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