So I am okay with many of these
documents being held back under the doctrine of executive privilege. But at the same time, the Administration had
a responsibility to create a publicly presentable case on this point. Something that didn’t use specific
intelligence, but still explained why it was legal.
So today we finally got a
document released, referred to as a “White Paper” (because they are racists I guess). You can read the original here,
with the accompanying article,
or read the wiki transcription
which seems to be really close if not perfect.
But let me start by writing my
own version of it as follows...
We are at war. On September
14, 2001, Congress issued an Authorization of Military Force. You can read the whole thing, here, but let
me quote for you a few key passages:
That the President
is authorized to use all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11, 2001, or harbored
such organizations or persons, in order to prevent any future acts of
international terrorism against the United States by such nations,
organizations or persons.
The resolution goes on to say
that this is in compliance with the War Powers Act.
This meets the requirements of
the Declaration of War Clause of the Federal Constitution. There is a popular myth that the only way
Congress can declare war is to write out a formal declaration of war. But this is not how to read the Constitution.
The Constitution is not about
formalities but substance. As the Supreme
Court said in McCullough
v. Maryland:
Let the end be
legitimate, let it be within the scope of the constitution, and all means which
are appropriate, which are plainly adapted to that end, which are not
prohibited, but consist with the letter and spirit of the constitution, are
constitutional.
In other words, the Constitution
sets out certain goals that the government—or particular branches—may pursue
and certain goals that it may not pursue.
If a goal is allowed, then any means is allowed, so long as it is not
otherwise unconstitutional. And this is
a double edged sword: if the Constitution prohibits a goal, it cannot pursue it
by any means. This gives broad powers were
powers are granted, and when the Constitution forbids an act, it makes that
prohibition broad as well.
The substance of the Declaration
of War clause is to ensure that no President can use the powers of war without
Congressional approval. A Declaration of
War, then, is a document that creates a state of war where previously none
existed. Arguably on September 13, 2001,
we were already in a state of war with al Qaeda. But whatever the validity of that argument,
this document did what a document entitled a “Declaration of War” does—it told
the President he could use the powers of war.
Now, one common objection to this
is that al Qaeda is not a country.
However, this is not necessary.
Consider the Proclamation Calling
Militia and Convening Congress, April 15, 1861. In justifying the use of the powers of war
against the Confederacy, Lincoln wrote the following:
WHEREAS the laws of
the United States have been, for some time past, and now are opposed, and the
execution thereof obstructed, in the States of the South Carolina, Georgia,
Alabama, Florida, Mississippi, Louisiana and Texas, by combinations too
powerful to be suppressed by the ordinary course of judicial proceedings, or by
the powers vested in the Marshals by law:
Now, therefore, I,
ABRAHAM LINCOLN, President of the United States, in virtue of the power in me
vested by the Constitution and the laws, have thought fit to call forth, and
hereby do call forth, the militia of several States of the Union, to the
aggregate number of seventy-five thousand, in order to suppress said
combinations, and to cause the laws to be duly executed.
Notice how Lincoln describes the
Confederacy. It is not another
country. And in his mind, it is not what
is called a belligerent power, which is something more than just a big
conspiracy and less than full nation status.
It is merely a conspiracy, or as he puts it a “combination[] too
powerful to be suppressed by the ordinary course of judicial proceedings.” And doesn’t that describe al Qaeda very
accurately?
Now, some might object that in
the view of the South, the Confederate States of America was an independent
nation. Great Britain recognized it as a
belligerent power. Whatever the merits
of those arguments, Lincoln didn’t believe this to be the case, and thus we
have to justify Lincoln’s use of the war powers without claiming a legal status
for the South that Lincoln expressly rejected.
So if you believe that the North
had a right to fight the South at all, you must necessarily believe that our
nation has a right to wage war not only on separate countries and/or
belligerent powers, but also on “combinations too powerful to be suppressed by
the ordinary course of judicial proceedings” which would plainly include al
Qaeda.
Another objection is that it is
difficult to determine who the enemy is.
But this is true to varying degrees in any war. For instance, to return to the Civil War very
often the Confederate rank and file didn’t wear anything approximating
uniforms. This is not from any lack of
honor—for the most part the South fought as honorably as they could (with a
giant exception when it came to the treatment of African American soldiers)—but
they just didn’t have the money for uniforms.
In addition to that, in some battles they actually wore Union
uniforms. For instance, in the First Battle
of Bull Run (aka Manassas) the very first battle of the war, some Southern
united wore blue uniforms, leading to confusion so that often Union troops didn’t
realize a unit was their enemy until they were practically on top of them. In that situation, the choice between enemy and
friend is likely to be arbitrary.
Another objection is that some
have said that it is offensive to treat the enemy as we would honorable
soldiers. They are merely criminals, as
the argument would go. But the law of
war has a proper term for that: they are dishonorable combatants, or war
criminals and they are treated worse than either lawful combatant or ordinary
criminals. Such persons can therefore be
killed or captured arbitrarily like ordinary soldiers, but if captured alive
they can be subjected to war crime tribunals and even executed for their
crimes, while on the other hand ordinary prisoners of war can only be held
until hostilities cease. The fact our
enemies fight without honor doesn’t give them additional rights.
A final objection is that that we
have no idea when this war on al Qaeda will end. But when have we ever gone into a war knowing
when it will end?
And such arbitrary application of
force is not a violation of the Fifth Amendment guarantee that no person shall
be deprived of life without due process of law, but a long recognized exception
to the rule. In the big picture, war is
the arbitrary application of force.
While human rights norms and various treaties prohibit soldiers from
intentionally murdering civilians (a rule that al Qaeda violates as a matter of
course) you are not required to give very much in the way of due process. Again, my extensive knowledge of Civil War
tactical information bears on this.
Consider, for example, the death of “Stonewall” Jackson. He and Lee fought as the sky grew dark at
Chancellorsville, an act that was inherently dangerous (at least before the
invention of night vision). He was riding
his horse, back to Confederate lines, when several of his own soldiers shot
him. He died from complications growing
out of that incident several days later.
All the “due process” that Jackson needed was for someone to shine a
light on his face, but this was not considered anything but an understandable
and justifiable error and would have been seen the same way if union soldiers
had shot General Hooker. And the
continuing and tragic reality of such “friendly fire” continues to demonstrate that
the application of force in war has not become less arbitrary over time. Indeed I remember keeping track of casualties
in the war in Afghanistan and discovering that we were more deadly to ourselves
than our enemy was to us, at least for several years.
War is the suspension of Due
Process, pure and simple. What is D-day,
for instance, but thousands upon thousands of government agents administering
the death penalty to people determined quickly—and sometimes erroneously—to be
their enemy? The Germans were not given
the chance to present defenses that might have exonerated them in a criminal
context, such as coercion, insanity, and so on.
Nope, it was simply, “if they are wearing a German uniform or just looks
like they are on the other side, we shoot.”
And there’s nothing wrong with that.
So from that we establish that 1)
while at war we can arbitrarily kill anyone identified as the enemy, and 2) people
are identified as the enemy, as civilians or as friendlies with true arbitrariness. From those principles, a drone strike is very
easy to justify.
Now you might ask why I have gone
through this exercise. Well, the answer
is because the memo I am about to take apart is never so clear as this. It is downright mealy mouthed and therefore
fails to make its own case.
Of course it doesn’t help that
NBC put its watermark all over the page, making it that much harder to
read. But oh well, let’s try to muddle
through.
Toward the beginning, it declares
that:
[t]he Department of
Justice concludes only that where the following three conditions are met, a
U.S. operation using lethal force in a foreign country against a U.S. citizen
who is a senior operational leader of al-Qa’ida or an associated force would be
lawful: (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 Unites
States continues to monitor whether capture becomes feasible; and (3) the
operation would be conducted in a manner consistent with applicable law of war
principles.
So they are really setting up five
requirements. It has to be:
1) a foreign
country (as in, not the United States),
2) if a senior
member of al Qaeda (if we are talking about a U.S. citizen—it is unclear what standards
apply to non-citizens),
3) if a high
level official has determined that this person poses an imminent threat,
4) if capture
isn’t feasible, and
5) it otherwise
doesn’t violate the laws of war.
And indeed, this distinction
between citizens and non-citizens is a false one. Go look at the Fifth Amendment. It applies to “persons” not citizens, which
means that if an illegal immigrant comes in here and commits an ordinary crime,
we cannot summarily execute that person: they have as much right to a trial as
anyone else.
Indeed most of those rules are
not relevant. The fact that I was citing
precedent from the American Civil War should clue you in to the idea that
whether or not we are talking about a foreign country is irrelevant. Nor it is relevant whether the person is a senior
member of al Qaeda; we kill low level grunts all the time in war. Nor is the determination reserved solely for
high level officials: low level grunts make that determination all the time as
they indeed did with Stonewall Jackson.
It is not even necessary that they pose an imminent threat. That is relevant to declaring preemptive war,
but you are allowed to kill enemies whether they are lounging in a villa or
actively firing on the battlefield. And
finally the feasibility of capture is not a required consideration. Of course if the enemy puts his hands in the
air and surrenders, you are obligated to accept that surrender, but since most
of the time the bad guys don’t see the hit coming, they are not likely to
surrender before a drone strike and we are not obligated to risk our soldiers’
lives for the benefit of their enemies.
So the only rule that actually
is, you know, a rule is that the
action cannot otherwise violate the laws of war. Which isn’t to say that none of those non-required
requirement are good policies. It might
be wise to reserve this to senior members of al Qaeda, operating in a foreign
country, etc. This might be good public
relations, or in the case of determining if capture is feasible, it might be
good strategy because it would increase the chances that we could extract
information from this person. I have
long said that I wish we had captured bin Laden alive, and then waterboarded
him for everything we knew and then executed him after a military trial. So I don’t think most of those prerequisites are
actually required.
What is interesting is that that
they don’t do a particularly good job of explaining their points. For instance, to support the notion that you
can bomb a country that is not presently an active theater of combat they could
have simply cited the authorization for military force which covers “those
nations, organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on September 11, 2001,
or harbored such organizations or persons.”
That is sufficient to justify us going into any nation where our enemies
would be found and it gives rock solid justification. Instead they cite a speech given by a former
legal advisor to the State Department and an academic article on a legal topic
(a law review article for those familiar with the term). These can be interesting sources of
information and often very trustworthy, but they hold no legal authority.
Oh and for bonus points, the
title of the speech was “United States Military Action in Cambodia: Questions
of International Law.” In short, he was
defending the bombing of Cambodia during the Vietnam War. And that brings up a fun aspect of this White
Paper: it is forcing liberals to support Obama using arguments that previously
they rejected. How many liberals who believed
that Bush was wrong, wrong, wrong, to summarily kill members of al Qaeda are
going to pretend this is justified? And
now liberals are going to have to swallow the idea that it is okay to have a
drone strike kill a top al Qaeda leader, because “after all we did bomb
Cambodia and that is okay, right?”
Perhaps we should ask our new Secretary of State, John “Christmas in
Cambodia” Kerry about how he feels on the subject.
And then we get to this
nonsensical line:
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.
See Reidv. Covert, 354 U.S. 1, 5-6 (1957) (plurality opinion); United States v.
Verdugo-Urquidez, 494 U.S. 259,269-70 (1990); see also In re Terrorist Bombings
of U.S. Embassies in East Africa, 552 F.3d 157, 170 n.7 (2d-Cir. 2008). The
U.S. citizenship of a leader of al-Qa'ida or its associated forces, however,
does not give that person constitutional immunity from attack.
The problem with that of course
is as I said above, the due process clause is not limited to citizens and it is
disturbing to see this White Paper seems to think that. Let’s look at the entire Fifth Amendment for
just a moment:
No person shall be
held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases arising in the land
or naval forces, or in the Militia, when in actual service in time of War or
public danger; nor shall any person be subject for the same offense to be twice
put in jeopardy of life or limb; nor shall be compelled in any criminal case to
be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for public use,
without just compensation.
Consider for instance, the case
of United
States v. Balsys. In it, the Supreme
Court was called on to determine the exact reach of the privilege against self-incrimination
(“No person...shall be compelled in any criminal case to be a witness against
himself”). Mr. Balsys was a former Nazi
who helped to commit atrocities during World War II. He was not captured in the aftermath of World
War II and gained greencard status in the United States in part by lying about
his past. Then, as best as I can tell,
when the Soviet Union collapsed new evidence fell into our hands and we initiated
proceedings to throw him back out of the country. In no time had he become a citizen.
During the hearing, Balsys was
asked about his activities in World War II.
He invoked the privilege against self-incrimination and the question
before the Supreme Court was whether he could do so, when he faced no fear of
being prosecuted domestically for his testimony, but instead merely faced the possibility
of being prosecuted in a foreign country.
The court took it as a given that he was entitled to “Plead the Fifth”
if all he was afraid of was prosecution in the United States, but then refused
to extend the privilege to the fear of overseas prosecution.
And if any “person”—citizen or
not—is protected from self-incrimination (at least if she fears incrimination
under U.S. law), it is equally obvious that they are equally protected by the
Due Process clause. So it is disturbing
to see this memo writer get something so basic so wrong.
Moving on, as you might have
noticed, they said that the criminals in question had to pose an “imminent”
threat. Liberals might be gratified to
see Obama say he would wait for an “imminent threat,” but the devil’s in the
details. Ordinarily imminent means it is
really about to happen. As in the tanks
are on the border and are waiting for the order to charge across. But that is too late for the Obama
administration, so they are proposing to change the definition of “imminent.”
[T]he 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. Given the nature of, for example, the terrorist
attacks on September 11, in which civilian airliners were hijacked to strike
the World Trade Center and the Pentagon, this definition of imminence, which
would require the United States to refrain from action until preparations for
an attack are concluded, would not allow the United States sufficient time to
defend itself. The defensive options available to the United States may be
reduced or eliminated if al-Qa'ida operatives disappear and cannot be found
when the time of their attack approaches. Consequently, with respect to
al-Qa'ida leaders who are continually planning attacks, the United States is
likely to have only a limited window of opportunity within which to defend
Americans in a manner that has both a high likelihood of success and
sufficiently reduces the probabilities of civilian causalities. See Michael N.
Schmitt, State-Sponsored Assassination in International and Domestic Law, 17.
Yale J. Int'l L. 609, 648 (1992). Furthermore, a "terrorist 'war' does not
consist of a massive attack across an international border, nor does it consist
of one isolated incident that occurs and is then past. It is a drawn out,
patient, sporadic pattern of attacks. It is very difficult to know when or
where the next incident will occur." Gregory M. Travalio, Terrorism,
International Law, and the Use of Military Force, 18 Wis. Int'l L.J. 145, 173
(2000); see also Testimony of Attorney-General Lord Goldsmith, 660 Hansard.
H.L. (April 21,2004) 370 (U.K.), available at
http://www.publications.parliament.uk/pa/ld200304/ldhansrd/vo040421/text/40421-07.htm
(what constitutes an imminent threat "will develop to meet new
circumstances and new threats .... It must be right that states are able to act
in self-defense in circumstances where there is evidence of further imminent
attacks by terrorist groups, even if there is no specific evidence of where
such an attack will take place or of the precise nature of the attack.").
Delaying action against individuals continually planning to kill Americans
until some theoretical end stage of the planning for a particular plot would
create an unacceptably high risk that the action would fail and that American
casualties would result.
By its nature,
therefore, the threat posed by al-Qa'ida and its associated forces demands a
broader concept of imminence in judging when a person continually planning
terror attacks presents an imminent threat, making the use of force
appropriate. In this context, imminence must incorporate considerations of the
relevant window of opportunity, the possibility of reducing collateral damage
to civilians, and the likelihood of heading off future disastrous attacks on
Americans. Thus, a decision maker determining whether an al-Qa'ida operational
leader presents an imminent threat of violent attack against the United States
must take into account that certain members of al-Qa'ida (including any
potential target of lethal force) are continually plotting attacks against the
United States; that al-Qa'ida would engage in such attacks regularly to the
extent it were able to do so; that 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; and that, in light of these predicates, the nation may have
a limited window of opportunity within which to strike in a manner that both
has a high likelihood of success and reduces the probability of American
casualties.
So in the mind of the author, any
al Qaeda leader is a constant imminent threat.
That is not what imminent traditionally means. That is not to say I don’t want us to take
out this person, but let’s not abuse the law and the language while we do it.
Now it is worth taking a moment
to dispel a myth about George W. Bush and his justification for war with
Iraq. Bush did not say Iraq was an
imminent threat. Instead he specifically
denied it was an imminent threat. From
the State
of the Union, 2003:
Some have said we
must not act until the threat is imminent. Since when have terrorists and
tyrants announced their intentions, politely putting us on notice before they
strike? If this threat is permitted to fully and suddenly emerge, all actions,
all words, and all recriminations would come too late. Trusting in the sanity
and restraint of Saddam Hussein is not a strategy, and it is not an option.
So Bush didn’t say that Iraq was
an imminent threat. He used other terms
like “grave and gathering threat” but not that exact term, because “imminent
threat” is a term of art that he knew he could not meet. He was rejecting the idea that we could only
attack if it was an imminent threat, and suggesting that due to changing
circumstances we had to adopt a looser standard than the traditional imminent
threat standard.
Meanwhile, the Obama
administration, through this document have reverted to the imminent threat
standard, which would seem to make liberals happier, but at the same time his
administration has urged us to redefine the term, so that effectively it gives the
President the same freedom to act Bush enjoyed. And
once again, I chuckle to myself thinking of what liberals will be forced to
swallow.
And then they get to the issue of
the “no war crime” limitation on this power to kill U.S. citizens, and we get
to one of the most irresponsible passages of the piece.
[I]t is a premise
here that any such lethal operation by the United States would comply with the
four fundamental law-of-war principles governing the use of force: necessity,
distinction, proportionality, and humanity (the avoidance of unnecessary
suffering). See, e.g., United States Air Force, Targeting, Air Force Doctrine
Document 2-1.9, at 88 (June 8,2006); Dinstein, Conduct of Hostilities at 16-20,
115-16, 119-23; see also 2010 Koh ASIL Speech. 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.
So let me tell you the lesson the
members of al Qaeda, who have surely read this already, have taken from this: constantly
surround yourself with as many civilians—preferably children—as possible and
the U.S. will not strike, at least not with a drone.
Under the law of war, it is a war
crime for a combatant to surround himself with civilians. If any civilians are hurt when taking such a
person down, it is on the head of the person hiding among the civilians, not on
the people taking him down. But not
according to the addled thinking of this administration.
And worse yet, now the whole
world knows it! The terrorists can
adjust their conduct accordingly, potentially placing even more civilians in
danger. Nice going, idiots—meaning the
idiots who wrote this, the idiots who leaked this, and the idiots at NBC who
didn’t think to black this out themselves.
The piece goes on wondering if
this is a seizure under the Fourth Amendment, whether it violates various
statutes prohibiting murder and war crimes generally. Those sections are good enough as they are,
albeit poorly sourced as other parts have been.
But that is the meat of the thing.
So the upshot is that after
raging against George W. Bush for eight years, Democrats now have a president
who has adopted essentially the same doctrine.
This is equally a problem with Republicans. For instance, Patrick Frey just today wrote:
Another problem is
that Obama is a liar and I do not trust
him. So while I might be OK with what the memo proposes, there is no way
for me to be sure he won’t take it further, if he thinks it would benefit him
politically. He doesn’t consider himself constrained by little things like
budget deadlines. Why would he pass an opportunity to kill a U.S. citizen
outside the above guidelines if he thought he could justify it?
Patrick is right to be
concerned. As I have pointed out, Obama
has willfully violated the Constitution—that is, he knew an act was
unconstitutional, he himself said it was unconstitutional, and
then he did it anyway. Furthermore, he has been willing to allow not
just late term abortion, but
even the death of fully born babies, so it’s not like he can be depended on
to preserve human life. But none of that
changes our analysis of the law and his Constitutional right to act. What it does, instead, is underline how
important it is to pick a person with the right character to be president.
As a parting thought, I expect
liberals to attack every conservative uncomfortable with this broad assertion
of authority as only doing it because the President is black in 3... 2... 1...
---------------------------------------
My wife and I have lost our jobs
due to the harassment of convicted terrorist Brett Kimberlin, including an
attempt to get us killed and to frame me for a crime carrying a sentence of up
to ten years. I know that claim sounds
fantastic, but if you read starting here, you will see absolute proof of these
claims using documentary and video evidence.
If you would like to help in the fight to hold Mr. Kimberlin
accountable, please hit the Blogger’s Defense Team button on the right. And thank you.
Follow me at Twitter @aaronworthing,
mostly for snark and site updates. And
you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent
History here.
And you can read a little more about my novel, here.
---------------------------------------
Disclaimer:
I have accused some people,
particularly Brett Kimberlin, of
reprehensible conduct. In some cases, the conduct is even
criminal. In all cases, the only justice I want is through the
appropriate legal process—such as the criminal justice system. I do not want to see vigilante violence
against any person or any threat of such violence. This kind of conduct is not only morally
wrong, but it is counter-productive.
In the particular case of Brett
Kimberlin, I do not want you to even contact him. Do not call him. Do not write him a letter. Do not write him an email. Do not text-message him. Do not engage in any kind of directed
communication. I say this in part
because under Maryland law, that can quickly become harassment and I don’t want
that to happen to him.
And for that matter, don’t go on
his property. Don’t sneak around and try
to photograph him. Frankly try not to
even be within his field of vision. Your
behavior could quickly cross the line into harassment in that way too (not to
mention trespass and other concerns).
And do not contact his
organizations, either. And most of all, leave his family alone.
The only exception to all that is
that if you are reporting on this, there is of course nothing wrong with
contacting him for things like his official response to any stories you might
report. And even then if he tells you to
stop contacting him, obey that request. That
this is a key element in making out a harassment claim under Maryland law—that
a person asks you to stop and you refuse.
And let me say something
else. In my heart of hearts, I don’t
believe that any person supporting me has done any of the above. But if any of you have, stop it, and if you
haven’t don’t start.
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