by Eileen | 9:51 pm, February 6, 2013 | Comments Off
In 1209, at the Massacre at Béziers, the invading force’s commander ordered every inhabitant of the town slaughtered – “Kill them all, God will know his own”. Traditionally, this has not been used as a positive example. Barack Obama, though, is not a traditional president.
Somehow, a 16 page white paper from the Department of Justice addressing the ‘justification’ for extrajudicial killing of Americans suspected of terrorist involvement has been leaked. Characterized as ‘confidential’ not not quite ‘classified’, it reads like a legal brief and was clearly written by purchased men who knew the conclusion long before they penned the first word. However MSNBC got it, they’re playing coy. Fine by me. Anonymity was good enough for the writers of The Federalist, you know.
Still, for a paper never intended for public consumption, the DoJ’s words are exasperatingly vague and offer a look at how lawyers effect a run-around more than anything else. According the people who have seen the full-on classified version, the confidential version features much of the same reasoning.
A few things are going on here. The Executive is asking to be allowed to act unilaterally and even against the express reservations of the Legislative and Judiciary. Citizens are being asked to trust their lives to the discretion of the Executive. The Executive is to be allowed to engage in presumptive self-defense that, were a citizen to mimic, would be immediately labeled ‘vigilantism’. The specific individuals given the kill orders are unnamed and uncountable officials, unelected bureaucrats and appointees. And we’re all being told we must accept that such a policy is necessary without seeing, now or ever, evidence. In fact, even our elected Representatives can’t see whatever the Executive might have.
The crux of it all is that the extrajudicial killings of American citizens who has not actually done anything against the nation is an act of self defense undertaken by the Executive for the sake of the entire U.S. population. The DoJ holds that the Executive is able to rightly determine when this is called for and that the terrorist threat is so potent that we have no choice, but makes no case why.
As is always the problem in mere citizens commenting on the secrecy of the state in anything touching on security and defense, there’s a limit to what one might say without inviting the mantle of ‘conspiratorial loon’. All we know is that the state is either operating outside the bounds of the law and indeed of sanity, or has a massive trove of data they don’t see fit to share.
For the sake of parsimony and with a nod to the state’s prior behavior, let’s assume they’ve discarded the rule of law. Pretending there’s some reliable information that would make extrajudicial a good is invoking one unknown to explain another. At PPC, we obey the rules of logic.
If there is indeed justification for the U.S. Government’s actions in the War on Terror, they aren’t sharing. Nor are they even acknowledging how much they’re asking the citizenry to accept on faith. The overall tone of the Bush and Obama Administrations has been that citizens ought to accept, trust, and move on. At no point since 9/11 have the Feds admitted they are aware of how much they’re asking of citizens or of how it all looks to the bien pensants. That the Executive is now withholding data from Congress and the Judiciary doesn’t auger well.
Obama’s Administration has refused to allow Congress to review that material. Presiding over a FOIA case seeking those documents, a U.S. Judge noted the Judiciary’s helplessness, saying she was caught in a Catch-22, that “effectively allow[s] the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for the conclusion a secret.”
It would seem that whatever reasoning exists, it’s known to none outside the White House, the Justice Department, and the intelligence agencies who would have provided it. We do know the Executive won’t even confirm the existence of such reports to the other two branches of the government. Instead, the paper diverts the reader to a statement of what the President’s authority entitles him to do without telling us why.
“The President has authority to respond to the imminent threat posed by al-Qa’ida and its associated forces, arising from his Constitutional duty to protect the country, the inherent right of the United States to self defense under international law, Congress’s authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict with al-Qa’ida under international law.”
At times, the paper descends into nonsense. Attempting to explain how extradjudicial assassinations don’t actually break any of the laws that specifically ban extrajudicial killings and assassinations, DoJ goes into veritable tap routines. We are told attacks on foreign soil may be carried out “with the consent of the host nation’s government or after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted.” In other words, the U.S. will seek the consent of another sovereign state if it works for them; otherwise, they arrogate to themselves the privilege of deciding a nation is “unable or unwilling” and going ahead regardless of the host nation’s position.
Elsewhere it becomes precious. The thing is, when the state gets precious, it’s offensive and dangerous. The matter of the Constitutionality of extrajudicial killings of citizens is prefaced thusly: “The Department assumes that the rights afforded by Fifth Amendment’s Due Process Clause, as well as the Fourth Amendment, attach to a U.S. citizen even while he is abroad.” Personally, I bristle that the United States Department of Justice is announcing that the rights of citizens apply to citizens who are outside America’s borders as if this is a radical and new reading, or as if they ought to be praised for such magnanimity. It’s yet another instance of a state that thinks it originates rights and this deserves praise and gratitude for not trampling on them.
Of paramount concern here are an individual’s 5th Amendment right to Due Process and 4th Amendment protection against unreasonable seizure – the unevidenced seizure of a human life being, at least in this girl’s humble opinion, unreasonable. Due Process is the more problematic of the two. You know me. I frickin looooove the 4th. I love the entire Bill of Rights and good many of the other Amendments, but the 4th is really something. Still, I read the 4th as relating to property more than to life; that’s a 5th Amendment matter for me. For one thing, once a guy is dead, he can’t challenge the state over his deprivation of Due Process. Nor can his next of kin when they aren’t told he’s dead, let alone dead at his own government’s hand. The rationale of extrajudicial drone strikes means no one involved has any Due Process at all. DoJ pays lip services, purring, “An individual’s interest in avoiding erroneous deprivation of his life is “uniquely compelling.”
But that is entirely the way unfeeling people acknowledge your humanity as a prelude to violating it.
The reasoning that follows from this is particularly frightening. DoJ acknowledges that individuals have a compelling interest in protecting their own lives and that nothing strikes more at the private interests of a man than threatening his life. Yet they use the paper to set out the case that the Executive is lawfully permitted to kill Americans based on the flimsiest cause. Our government is arguing, and non too artfully, that the single greatest interest any individual can have should be irrevocably annihilated for the sake of a hyperventilating government.
Citing SCOTUS’ plurality opinion on Hamdi v. Rumsfeld, the judicial authority for detaining combatants even when they are U.S. Citizen and the basis of much of the DoJ’s justification, the paper also holds that even considering how to protect the Due Process of citizens in such cases would be an undue burden on the state. What they entirely avoid is that Hamdi specifically held that U.S. Citizens detained as enemy combatants still have a right to Due Process. Obama’s Justice Department can extrapolate that being able to hold an American as a POW of America necessarily means extrajudicial killing is legal, while managing to ignore the court’s finding on Due Process.
At times like these, I must conclude the various Cabinet agencies are advance agents of the AntiChrst, as it’s too depressing to think out vaunted meritocracy has put such people into power. These days, the state is so thoroughly unburdened by any consideration of citizens’ rights that I wonder how they could possibly need any additional exemptions.
Given the American government’s caterwauling when any other nation proposes a law that could conceivably affect the U.S., the complete disregard for the positions and priorities of the rest of the world is alarming. Drone strikes are fine anywhere the U.S. Executive Branch likes and whatever government has sovereignty over the specific land has two choices – consent or be ignored.
What happens if that state shoots down the drone, tries U.S. Officials in absentia, retaliates against ex-pats Americans in the country or against American companies, or takes action against American servicemen stationed in the country? Others pay for the state’s hubris, an unfortunate reality of concentrated power and exemption from the rule of law, one that is not unique to the United States of to the perpetual War on Terror. The reason such hubris is so alarming and ought to provoke massive outcry from citizens is that an unchecked state will continue seizing power until it reaches the point where citizens have no peaceful and lawful means left to protest and challenge the state.
That way lies totalitarian hell and then Revolution; regardless of the weirdness of the relatively short, bloodless, and civil American Revolution, uprisings of angry citizens against a hopelessly corrupt state tend to the hideous. Think Reign of Terror, not Ride of Paul Revere.
The paper argues that such an approach still respects sovereignty because any country has the technical option to allow U.S. Drone strikes. The reality is that any country knows the Obama Administration will do whatever it wants and that the request for consent to launch a strike is window dressing, if it is made at all. When those who aren’t going to consider your will, your wishes, and your interests make a sarcastic and patently insincere show of solicitously asking after them, it’s insult piled on injury.
The initial criteria for justifying extrajudicial killings are vague and even those don’t truly hold. The introduction explicitly avers, ‘The paper does not determine the minimum requirements necessary to render such an operation lawful.” Who, then, does? What we are given is a vague idea of a lawful unlawful political killing that is somehow not an assassination:
The United States would be able to use lethal force against a U.S. citizen…in at least the following circumstances [emphasis added]:
(1) where an informed, high-level official of the U.S. government has determined that a targeted individual poses an imminent threat of violent attack against the United States
(2) where a capture operation would be infeasible-and where those conducting the operation continue to monitor whether capture becomes feasible; and
(3) where such an operation would be conducted consistent with applicable law of war principles.
In these circumstances, the “realities” of the conflict and the weight of the government’s interest in protecting its citizens from an imminent attack are such that the Constitution would not require the government to provide further process to such a U.S. citizen before using lethal force.
Logically, there are a lot of words that call for an articulatable definition: ‘informed high-level’, ‘imminent’, ‘infeasible’. Of course they aren’t doing to be defined. That’s the point. This isn’t really a concrete justification of the need for extrajudicial killing. It’s pure CYA, something DoJ grudgingly produced because those damn civil liberty types exist.
Oh, and that part about no need to “provide further process” – fallacious on its face. You can’t provide “further process” until you have already provided some process. Barry being able to order that you be iced because it strikes him as the thing to do is not a process, so don’t even start. I put more thought, moral reasoning, and consideration of others into my brushing my teeth than this document is proposing ought to go into killing citizens.
In setting out exceptions to the criteria delineated only sentences earlier, the paper announces, “First, the condition that an operational leader present an “imminent” threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”
At this point, ‘imminent’ has been so preposterously redefined as to have no meaning remotely close to its ordinary use. By DoJ definitions, which require neither plausibility nor a short time frame for an act to be ‘imminent’, my first novel, the day I get serious about learning Mandarin, and my discovery of viable cold fusion are all ‘imminent’.
Not that our intelligence communities excels in gathering evidence as it is, but that’s all the more reason to pause at sanctioning anything that further reduce the expectation the state know what it’s doing and have some case. I will also add that until the Obama Administration agrees citizens have no duty to retreat, I am not going to give them this one. If I don’t get to effect Talmudic justice on the means streets of Denver, my tax dollars should not be taking out anyone who might possibly potentially be some sort of problem in the future under certain conditions in Kandahar.
There is a case to be made for taking someone out before he acts, but it assumes a preponderance of evidence setting out intent and the punishment is less severe that what would be the case is that individual had acted (murder as opposed to attempted murder, solicitation of a bribe compared to accepting a bribe). The justification for operating differently in war is there is no time to verify existing evidence or gather corroboration, that targets can relocate, speed up attack plans, and pass on information to others so quickly that you simply must take them out whenever you have the chance. Itself, that presumes that whatever they know is so damaging, whatever they’re planning is so disastrous, that a killing is moral in light of the carnage it would prevent. Pure utilitarianism.
I don’t have a problem with stopping a murderer before he murders again; I have a problem with the Justice Department’s low standard for deciding someone is a threat. Al Qaeda isn’t the all powerful bogeyman, a Bond villain with a Koran, so much as a ragtag band of twerps who blew their entire wad more than a decade ago and haven’t been able to pull off anything since. The target does not present a threat that justifies chucking in everything we say we believe about human rights and how we ought to treat others.
If Barack and his pals disagree, they may send me their evidence. But I’ll be damned if I’m going to be told it’s my patriotic duty to support Gestapo tactics on blind faith.
The DoJ again neatly disposes of any real restriction on the second criteria, that extrajudicial killings are only legitimate when no other option is feasible, by declaring, tautologically, that feasibility is “highly fact-specific and potentially time-sensitive inquiry.” It’s a consideration, obviously, but not one that can ever be binding as it’s too dependent on the specifics of a case. Only engaging in extrajudicial strikes when nothing else makes better sense is a general guideline. It can’t be considered a hard-and-fast operating requirement when there’s not actually anything restricting or limiting about it.
On the last point, the pledge to follow the laws of war, the paper lists four specific goals: necessity, distinction, proportionality, and humanity. Each has its own exceptions, making it ‘suggested best practices of war’ more than true laws.
One telling item goes like this. We read, “For example, it would not be consistent with those principles to continue an operation if anticipated civilian casualties would be excessive in relation to the anticipated military advantage.” Alright, is the DoJ at all considering the collateral civilian deaths abroad – drone strikes are not nearly so surgical as Washington would like us to believe – and the loss of liberty at home?
The DoJ admits as much, referencing Haig v. Agee, which found “[m]atters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention,” and Baker v. Carr, which touted, “the exercise of a discretion demonstrably committed to the executive or legislature.” The logic explicitly referenced here is that because a one point a Congress – authorized the use of force, anything related to that is always and ever the sole prerogative of the Executive – a refutation of checks and balances.
(For those who are interested, Haig overruled the lower courts and held that the Executive may revoke a passport without involving Congress when the former acts in the interests of national security. Baker broadly relates to deciding what matters are political and which are justiciable. However, SCOTUS doesn’t take Baker seriously – after all, they heard Bush v. Gore – so why should anyone else?)
Much is made of the need for government officials to be exempt from criminal statute when working under appropriate “public authority” – but the references and examples all rely on instances where the need for public officials to have laxity not enjoyed by civilians is so obvious as to make not offering an exemption absurd on its face. Cops should be able to legally speed when pursuing a subject, but police departments still expects officers engaging in a chase to weigh the gravity of what the suspect is alleged to have done against the disruption to traffic and the risk posed to other drivers. More centrally, the DoJ cites instances where the case for giving some people permission to break a law that binds everyone else is made publicly. No one is saying police should be to do as they like for reasons that citizens aren’t allowed to know.
What’s going on here is partially a power grab, partially an attempt to do something and in a highly visible way, partially yet another symptom of the fact that Obama’s foreign policy is a nearly reflexive continuation of the Bush Doctrine, and partially the result of politicians terrified of facing voters if another serious attack does happen.
I don’t believe for an instant that any “senior operational leaders” will ever be taken out. Those are the people the state wants alive. Extrajudicial strikes are for foot soldiers who can’t provide any benefit as a captive and for terrifying recalcitrant rural Pakistanis. In the paper, the DoJ admits, over and over, they aren’t planning to put any effort in making the evidentiary case that any target is a real threat. The entire thing sidesteps the entire matter than terrorism isn’t, strictly speaking, a non-state thing. Speaking to the public, Washington pretends certain governments aren’t willing and enthusiastic backers of anti-Western terrorism, often while funding and propping up those same regimes. The rhetoric of the War of Terror isn’t fine speaking in service of noble ends; it’s doublespeak in service of the unspeakable.
But then, there never was any logic to any of the War of Terror. Cynical power grabbing by the worst people imaginable has met the self-enforcing paranoia of isolated VIPs. In American, ‘legal’ has ceased to indicate a reasoned and ruminated-upon assessment, arriving at a decision that binds all equally. These days, ‘legal’ is just the word stamped on things the state has decided to do. Like kill her own citizens.
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