Senatus Consultum Ultimum

In 121 B.C., the Roman senate passed the senatus consultum ultimum, its so-called ultimate decree. Thousands of rioters under the leadership of Gaius Gracchus were threatening the state, and the consul Opimius used the powers of this decree to attack them with military force. Many died, and in the aftermath, some called into question the legality of the consul's use of deadly force against citizens. His defense was simply that the senate had given him the authority, and he was acquitted.

Approximately sixty years later, Lucius Sergius Catilina (Catiline) hatched a conspiracy to overthrow the state. On October 21 of that year, the senate voted the powers of the S.C.U. to consuls Cicero and Gaius Antonius Hybrida. Cicero, aware of the shaking legality of the S.C.U., delivered four speeches against Catiline, the famous Catilinarian Orations, November and early December. In the final month of 63, five of the conspirators were executed by strangulation in the dread prison called the Tullianum.

Five years after this, in 58 B.C., Cicero's political and personal enemy, Publius Clodius Pulcher, used his actions against him by pushing through a bill that exiled anyone who had put a Roman citizen to death without a trial. Given the tumultuous climate of the time, Cicero did not wait for a legitimate trial and fled into voluntary exile, from which he was recalled by the senate the following year.

So what was this ultimate decree of the senate that caused such confusion and judicial hullabaloo? It was a vaguely worded decree that seemed to give the consuls, the chief executives of the Roman state, unlimited power. It stated, "Consules videant ne quid res publica detrimenti capiat." "Let the consuls see to it that the republic suffer no harm." The problem with this was that, if interpreted to mean the consuls could order the summary execution of citizens, then it seemed to violate a series of laws dating back to the end of the monarchy and the beginning of the republic in 509 B.C., all of which guaranteed a citizen's right to a trial in a capital case.

In the events of 63 and the Catilinarian conspiracy, Cicero tried to get around this by maneuvering the senate into a position to judge Catiline and his followers hostes, or public enemies. A hostis was an enemy outside of Rome who had taken up arms against her. Cicero argued that this was precisely Catiline's state. He had, in fact, stockpiled arms and men in the passes around Etruria and was planning a military strike on Rome. As historians have observed, however, included one Classics graduate student in his Master's thesis, that while it was perfectly legal to kill an enemy combatant, such as Hannibal, the questions still remained as to whether the senate had any judicial authority to pronounce someone as hostis, and even if it did under certain circumstances, whether it could summarily strip a citizen of his rights as a citizen. Could the senate point its finger at a citizen and proclaim, "You are a hostis and as such we can kill you with impunity.

So why the history lesson? A white paper has just been released from the Obama Department of Justice arguing for precisely the same power to be given to the President. Precisely. The difference between President Obama and Cicero (okay, there are vast differences between the two) is that Cicero tried to work within the law. His efforts may be seen as questionable, but he did at least keep up some pretense of democratic process. This is not the case with our President, as Glenn Greenwald's article in The Guardian makes clear. Let's face it. If the ACLU is against President Obama on this one, then you know something is up. The President's efforts to secure this power to himself have been wrapped in secrecy. There is nothing of Cicero's open-floor speeches making the case.

The historian Sallust reports that Julius Caesar was against the summary execution of citizens, even in the case of the Catilinarian conspirators. He observed, "Omnia mala exempla ex rebus bonis orta sunt. Sed ubi imperium ad ignaros eius aut minus bonos pervenit, novum illud exemplum ab dignis et idoneis ad indignos et non idoneos transfertur." "All bad examples have arisen from good ideas. But when the power has passed to those ignorant of those good ideas, or to those who are less good themselves, that new example passes from those who are worthy and suitable to those who are unworthy and ill suited." Caesar's concern is that a good idea at the time, for example giving the power of executing a citizen without a trial to the chief executive, may become something horrible when it passes into the hands of those who are not such good people.

President Obama's desire to kill American citizens without a trial is rooted in his desire to kill terrorist operatives, those who present an imminent threat to our nation. Most hearing this would likely think it a good idea. To see why it is not, read Greenwald's article.

So, once again, history is repeating itself. In what some students of history may find an odd twist, President Obama is our Cicero, if only in this, and those who are ill at ease thinking of such power in the hands of the executive find Caesar their spokesman.