Hollywood and the Constitution

Last night, my wife and I decided to watch the latest movie delivered by our elf friends at Netflix, Jack Reacher.  Perfectly competent Tom Cruise thriller.  Suspenseful, well put together, lean and mean and pretty exciting.  It’s been interesting to watch how Tom Cruise has taken control of his own career, producing as well as starring in films specifically taylored to his gifts as an actor.  For a man in his early fifties, he looks tremendous, moves with a great economy of motion, and conveys a kind of terse intelligent intensity.  And for my wife and I, it made for an enjoyable evening home alone.

Anyway, the story involves a lone crazy shooter scenario, in which an Army sniper apparently guns down five random people in Pittsburgh.  An opening montage shows, without dialogue, good cops putting together the clues, and arresting a former Army Ranger named Barr (Joseph Sikora).  The evidence is overpowering against him, and instead of a defense, he writes down a name, Jack Reacher (Cruise).  His defense attorney, Helen (Rosamund Pike), her DA father (Richard Jenkins) have no idea who Jack Reacher even is, until he walks into their attorney conference.  He’s a former Ranger himself, a prosecutor of war crimes, and he knows all about Barr, who he had previously prosecuted in Iraq.  Reacher’s immediate thought is that Barr probably did what he’s accused of, and he’s fine with Barr getting the death penalty, but Helen persuades him to take another look at the evidence.  He eventually concludes that Barr’s been framed, and as the film progresses, he goes after the real shooter, who he learns has been hired by a Russian mobster businessman, the Zec, a wonderfully creepy Werner Herzog.  (In fact the film is basically worth watching just to see Werner Herzog act.)

Okay, so, but, Reacher has no evidence for any of this.  All the evidence points to Barr, and nothing in the film changes that.  Yes, he gets the actual shooter to even admit it to him, but Jack Reacher is basically an off-the-grid drifter do-gooder martial arts expert/attorney.  Not somebody whose testimony is going to hold up in any court.  So Reacher knows who-dun-it, also who didn’t do it, and he can’t prove any of it.  So he kills all the bad guys.  Just shoots ’em in cold blood.  (To be fair, they’re busy shooting at him for a lot of it).  Rescues the girl. (Rosamund Pike is terrific, by the way, a performance with emotional resonance far beyond that required by this frankly pretty generic thriller).  And we’re fine with it.  We’re fine with Jack Reacher, (well, Tom Cruise) playing judge, jury and executioner. I certainly was, watching the movie last night.  Because he knows who the bad guys are, obviously–I mean, geez, it’s Werner Herzog, he’s obviously evil to the core–and since our poor pathetic criminal justice system clearly can’t cope with a guy like that, justice has to be done somehow.  So bang bang bang.  Done.

Bear in mind, this is a movie I quite liked. And why not like it?  How different is this from a whole bunch of other thrillers?  How much time gathering evidence and taking depositions and building a case does John McClane spend in the Die-Hard movies?  All (gulp) six of them?  I mean, it’s Bruce Willis–of course he can be trusted to get the bad guys.  How punctilious is Liam Neeson in the Taken movies about chains of evidence and international coordination?  (To be fair, in the first Taken movie, he does try to involve the French police, only to learn that they’re in cahoots with the bad guys.)  How many thrillers, how many cop shows, how many action flicks show cops, uh, not bothering much with due process?  Actually, a TV cop show like, I don’t know, Law and Order, did a pretty job showing police procedures.  Though they did manage to close every frickin’ case.

So, change of subject, back to reality.  On September 30, 2011, an American citizen living in Yemen, Anwar_al-Awlaki was killed by a drone attack.  Two weeks later, his son, sixteen year old Denver-born teenager, Abdulrahman al-Awlaki, also living in Yemen, was similarly killed.  Both were killed as terrorists, without due process, without having been charged with a crime.

And yes, al-Awlaki was a member of Al Qaeda, and a recruiter for terrorism.  There doesn’t seem to be much question about that.  And so you can say, well, he was an enemy to the United States, and a dangerous man devoted to the destruction of our country.  Someone who supported and possibly even planned terrorist attacks against our country.  And we’re in a war on terror and on terrorists.  Of course we have the right to kill him.

But we are a nation of laws.  And we are governed by a constitution. And there is nothing in the constitution that gives the President of the United States the power to kill an American citizen living on foreign soil (living in a country with whom the United States is at peace) without due process.  Was al-Awlaki guilty of treason?  Well, Article 3 Section 3 is quite specific about the grounds for a treason prosecution.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Yes, the President is Commander-in-chief.  Absolutely.  Read Article 2 Section 2.  Nothing in there about ordering the deaths of American citizens without due process.

Our constitutional obligation, if the CIA did in fact have evidence of al-Awlaki’s treason, was to ask Yemen to extradite him to the US for trial.  And then try him.  And yes, I know that’s complicated ten different ways.  And I know we’re at war with Al-Qaeda, whatever ‘at war’ means with an international organization.  I totally get that it’s way way easier to just send a drone strike.

But we can’t. Or rather, yes, obviously we can, but we shouldn’t, and we can’t do it legally.  Anymore than Jack Reacher can just shoot the bad guy in a movie.  It was interesting to me to see the reaction of the Rosamund Pike character to Reacher killing the Zec.  She’s an attorney, a member of the Pennsylvania bar. She’s just watched her paid consultant (I guess that would basically be Reacher’s relationship to her) kill a suspect in cold blood.  She’s an officer of the court.  She has a professional obligation to arrest Reacher, to testify against him, to cooperate with a police investigation into murder and the subsequent capture and arrest of the killer.  She didn’t do any of that in the movie, obviously, because it’s a movie, and as such, a fantasy.  But due process means something.  The law means something.  Ignoring it, pretending that this or that situation is somehow beyond a legal remedy, that’s a terrible indictment of us and our society.

I love this exchange, from Robert Bolt’s A Man for All Seasons.  It’s a conversation between Sir Thomas More and his son-in-law William Roper.

Roper: So, now you give the Devil the benefit of law!

More: Yes! What would you do? Cut a great road through the law to get after the Devil?

Roper: Yes, I’d cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

I’d give the Devil benefit of law.  Yes.  And, okay, maybe Al Qaeda is the Devil, and maybe the plans of al-Awlaki are indeed devilish, Satanic, just as Werner Herzog is pure evil in Jack Reacher.  Pure evil, a murderer, a man who orders the deaths of four innocents so he can kill the one person he wants dead, someone holding up a business acquisition he wants to have happen.  We still have to take him to court.  For our own protection, to live in a nation ruled by laws.

Two final points. Robert Duvall is in Jack Reacher, playing an elderly rifle range owner. A crusty conservative, he agrees to help Reacher kill the baddies, and provides covering sniper fire as Reacher moves in on them.  I am on record on being in favor of gun control. But I have family members who are gun owners, and who fiercely defend their Second Amendment freedoms.  Those same family members love the Constitution.  They would not, under any circumstances, join a vigilante in a frontal attack on possibly bad guys, an attack of at best dubious legality. I found the whole movie, and especially the portrayal of the Robert Duvall character, an insult to my gun-loving friends and their principled support for the Second Amendment.

And finally this: Anwar al-Awlaki and his son (and I haven’t even talked about the killing of his son) were men who held certain beliefs, men, apparently, of strong views.  If we can believe the news reports on al-Awlaki’s beliefs, they seem to have believed that the United States of America is evil, is an insult to the God they worship.  They believe that the United States is an affront to their religion, and that America should be therefore brought to its knees.  According to my reading of the Constitution, those are opinions they are allowed to hold.  Americans are allowed, constitutionally, to not believe in America. American citizens are protected in their right to believe that the United States of America is evil, and should be destroyed.

They are not allowed to do anything about it.  They are not allowed to actively work to murder, or to attack US possessions or institutions.  Americans are not, in short, allowed to perform acts of treason. But we are allowed to hold treasonous opinions.  That’s how confident our Framers were about the nation they created.

Recently, Michele Bachman has made some silly noise about impeaching President Obama for this IRS nonsense.  She’s also welcome to her opinion, as I am welcome to consider her a dimwit.  At the same time, I think there do exist grounds to impeach President Obama.  For ordering the murder of American citizens without due process.  I consider those actions high crimes and misdemeanors.  We elected a President, a chief executive, a commander-in-chief.  We did not elect Jack Reacher.  Hollywood fantasies have their place in American culture.  They have no legitimate place in American jurisprudence.


2 thoughts on “Hollywood and the Constitution

  1. Anonymous

    Killing American citizens who pose a threat to the country, without due process has been going on for a long time.

    I came across a story of man who was involved in the development of the nuclear bomb during World War II, who was shot down and captured by the Germans. The Germans didn’t know who was, but still, the man was ordered to be killed and was. There was no trial or Congressional decission. The order was kept secret by the army until long after the war ended. It is likely the President was informed and consented to that decision.

    I suspect every president has been involved in similiar killings. Does that make it right? No.

    Should Obama be impeached for killing an enemy of the state. Good question? Does that mean every president involved in the killing of an American who was considered a threat should be prosecuted?

    The wire tap issue is a similiar question. If something saves lives, is it a valid reason to circumvent law. I don’t believe it is but understand why it’s done. I also understand the danger of circumventing the law. I love the Bolt quote and think he’s on target in this. Maybe there should be a process in which someone who posses a threat can be declared an enemy combatant.

    What about the men who made the decision to endanger the lives of those living down wind from the nuclear testing. “There’s no one out there but Mormons and indians,” was actually stated in one of the meeting discussing the danger the people down wind from the blasts would face. Thousands died as a result of the testing. It was well known at the time radiation caused cancer and that death would occur. No charges against those involved in that decision were ever even considered.

    Love your post – very though provocking.

  2. N Wilson

    I think you have, in this post, laid out fairly closely my own position on the matter. From a personal, theological/philosophical stand point, what really matters at the end of the day is who we are – not the outcome, as such, but what we are: a nation subject to rule of law, or otherwise?


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