DOJ targeted killing white paper makes chilling mockery of sense, english

As is well known, American citizen Anwar al-Awlaki was killed by a drone attack in Yemen on 30 September 2011. He was alleged by the government to have been a “senior talent recruiter” for al-Qaeda, primarily by creating “radicalising” YouTube videos. The administration never charged or indicted him of him with any crime, much less tried him before an impartial tribunal, so his killing should offend the Fifth Amendment to the Constitution. The Obama Administration doesn’t agree with that straightforward analysis, but was unwilling to reveal the legal basis for their assumption of the power to execute American citizens in secret with no charge, trial, or congressional or judicial oversight. Members of Congress begged the Administration for months following al-Awlaki’s killing for memos explaining the Administration’s position, and finally the Administration deigned earlier this month to yield a draft white paper dated fifteen months ago — not to Congress proper, mind you, but to two of its subcommittees.

That white paper has now been leaked publicly. While it is unclear whether it completely details the Administration’s thinking, the paper is sufficiently devastating that Democratic California Representative Barbara Lee said in an open letter to the Los Angeles Times that it “should shake the American people to the core.” But Obama’s a nice guy, right, so how bad can it really be?

The paper, a mere 16 pages, begins by making a serious effort to limit its scope. It explicitly addresses only when “the U.S. could use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force of al-Qa’ida.” Explicitly off the table: determining minimum requirements to legalize such use of force, and considering other circumstances such as an active battlefield or a citizen who is not a “senior operational leader”.  That phrase is bandied about again and again without any indication of how “senior” or how “operational” a leader would need to be; but once the President has found such a person, the white paper finds that lethal force is legal if the following three conditions, quoted below in their entirety, hold:

  1. An informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States;
  2. Capture is infeasible, and the United States continues to monitor whether capture becomes feasible;
  3. The operation would be conducted in a manner consistent with the applicable law of war principles.

This view is absurd. For example, were I a government targeted by the U.S. drone attack campaign, adopting these criteria would clearly legalize assassinating the American President. (The white paper did explicitly address U.S. citizens, but it is safe to assume the sufficient conditions for assassinating belligerent foreigners can only be looser.) Unsurprisingly, some pretty remarkable sleight of hand and transparently ridiculous equivocation were trotted out to attempt to justify the assumption of such a power. Let’s consider them in turn. [Editor’s Note: There’s a lot to talk about from these 16 pages. If your attention span is better served by YouTube than by Wikipedia, skip to the last couple paragraphs. I promise Anwar al-Awlaki won’t mind, and there’s a good bit with Barbara Lee in it.]

How were those three conditions, hereinafter the CIRCUMSTANCES, arrived upon as sufficient for legality of assassination of US citizens? First, the administration tries to disparage the notion that international law recognizes only regional or geographically bound armed conflicts, trotting out this number from a private 2008 proposal from exonerating counterterrorism from the rules of war:

If… the ultimate purpose of the drafters of the Geneva Conventions was to prevent ‘law avoidance’ by developing de facto law triggers — a purpose consistent with the humanitarian foundation of the treaties — then the myopic focus on the geographic nature of an armed conflict in the context of transnational counterterrorist combat operations serves to frustrate that purpose.

Secretly bombing Cambodia (indirectly referenced once in the paper) shocked the nation during the Vietnam War, but now a respect for historical “de facto law triggers” surrounding nation-state boundaries otherwise respected under international law is “myopic.”

Next we move to the balancing of an individual’s interest in remaining alive with the interest of the government in guarding that right for its citizens. Citing Hamdi v. Rumsfeld, a flawed 2004 Supreme Court case with no majority opinion, the Administration equivocates:

“The realities of combat” render certain uses of force “necessary and appropriate,” including… activities [which] pose an imminent threat of violent attack against the United States — and “due process need not blink at those realities.”

Hamdi was captured in Afghanistan by U.S. soldiers in 2001, presumably during actual “combat”. But this doesn’t prevent the Administration from purloining the word “realities”:

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.

An imminent attack, even if inevitable, is still not yet actually “combat,” so it is difficult to understand the justification for applying the Hamdi analysis to the CIRCUMSTANCES. Remember, the point here is to justify preemptive lethal force, thus creating “combat” where none previously existed, in order to forestall broader yet speculative “combat” and its resulting casualties.

Of course, a reasonable person might well dismiss that distinction in light of the understanding of the word ‘imminent.’ After all, what’s a few seconds between mortal enemies? Enter one of the juiciest bits of equivocation in the entire white paper: a shocking redefinition of the concept of “imminence.” I’ll quote the paper:

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.

I shit you not: the Administration has said this with what we can only assume was a straight face it spent 15 months practicing. Interesting things to consider are the definition of the word imminent (“ready to take place; especially: hanging threateningly over one’s head”) and its etymology from the Latin imminentem by way of Middle French (“to overhang; impend, be near, be at hand”). Indeed, an obsolete definition of imminent is “jutting out or overhanging,” which adjective no reasonable person could ascribe to that which isn’t in “clear” view and presenting an “immediate” danger. But the Administration is telling us that a threat may be imminent even if it is not near at hand or clearly in view — even to the Administration — a holding that removes any historical or even conceivable meaning from the word.

What the Administration wants “imminent” to mean is far from “clear,” but why they want it to mean something it manifestly doesn’t is plenty clear indeed. Invoking some kind of 21st Century Godwin’s Law by emphasizing a “narrow window” of opportunity which sometimes exists to forestall 9/11-style attacks, we get this rationalization:

Delaying action against individuals continually planning to kill Americans until some theoretical end stage of planning for a particular plot would create an unacceptably high risk that the action would fail and that American casualties would result.

But, vagaries like “continually” and “action” and “unacceptably” and “failed” notwithstanding, that sounds like cool blue reason when compared with this absurd statement about an organization “continually plotting attacks against the United States” that would “engage in such attacks regularly to the extent that it were able to do so”:

The U.S. government may not be aware of all al-Qa’ida plots as they are developing and thus cannot be confident that none is about to occur…

In other news, water is wet. Our government’s counterterrorism policy is the Bear Patrol.

Moving on, one of only three conditions in the CIRCUMSTANCES — the notion of feasibility of capture — is given just a single paragraph of analysis. It basically hand waves that a few factors require the question of such feasibility “would be a highly fact-specific and potentially time-sensitive inquiry.” No guidelines or limits in a paper explicitly stated to explain how and why the government can kill people in certain CIRCUMSTANCES is offered on this score.

Much more effort is devoted to explaining why no court should be allowed to meddle in the affairs of the Administration. First, “there exists no appropriate judicial forum to evaluate these constitutional considerations;” but also, none should be convened since “it might be required inappropriately” to interfere in the “specific tactical judgment” of the Administration and “supervise [its] inherently predictive judgments.” This passage, with its juxtaposition of “required” and “inappropriately,” begs an important question about the efficacy of “tactical” judicial oversight. This chilling dismissal of the well-established tradition of warrant-issuing judges offends the Fourth Amendment which all but mandates their service. No Congressional act authorizing the use of military force can supersede the Bill of Rights.

A fairly uninteresting analysis of both a federal statute that might criminalize any citizen for killing another citizen abroad absent the so-called “public authority justification” and an Executive Order banning assassination — “A lawful killing in self-defense is not an assassination” — is followed by a more interesting examination of whether such non-assassination might not be illegal under the Geneva Conventions. The gist is that the Geneva Conventions make the murder of “one or more persons taking no part in active hostilities… placed out of combat by any… cause” a war crime. But the DOJ runs to the Red Cross for aid: according to it, “mere suspension of combat is insufficient” to satisfy the “no part in active hostilities” criterion; instead, the party in question must have “laid down their arms.” That ambiguous phrasing is rivaled only by a return to “imminent threat of violent attack” in the paper’s very next sentence as an example of a sufficient condition to warrant the declaration of “an active part in hostilities.”

Worth noting is that the white paper repeatedly cites two sketchy Supreme Court cases: the first is the aforementioned Hamdi v. Rumsfeld, cited nine distinct times; the second is a similar due process case, 2006’s Hamdan v. Rumsfeld, cited three times across as many pages. Hamdi v. Rumsfeld is never even formally introduced (“Hamdi” suddenly appears as case law), suggesting the highly repetitive white paper might have been cobbled together somewhat sloppily from several of the memos. And, significantly, the Authorization for the Use of Military Force against Al-Qaeda — hastily passed by Congress only three days after 9/11 — forms a significant basis for the Administration’s argument, both explicitly and as a central underpinning to the Supreme Court rulings cited a dozen times in its elaboration. (Amusingly, Civil War-era military code is cited twice, but not much between that century and this one appears. Also, drone enthusiast John Brennan gets a totally unironic hat tip early on.) For that reason, I urge you to support Representative Lee’s calls in her LA Times open letter to repeal the AUMF and for “a full debate of the consequences of the September 2001 action, and meaningful oversight by Congress.”

Here we have an executive who campaigned on rolling back his predecessor’s unconstitutional excesses in the ‘Age of Terrorism’, but who has actually expanded those powers with an interpretation of legislative statute, war law, and unofficial analysis that strains credulity. The powers at issue here aren’t merely speculative, since more than one American citizen has already been felled by an American drone abroad.

Let this white paper be the last straw: write or call your elected officials today and echo Representative Lee’s call to get serious about reining in executive overreach in the increasingly foggy War on Terror.

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