The Brett Kimberlin Saga:

Follow this link to my BLOCKBUSTER STORY of how Brett Kimberlin, a convicted terrorist and perjurer, attempted to frame me for a crime, and then got me arrested for blogging when I exposed that misconduct to the world. That sounds like an incredible claim, but I provide primary documents and video evidence proving that he did this. And if you are moved by this story to provide a little help to myself and other victims of Mr. Kimberlin’s intimidation, such as Robert Stacy McCain, you can donate at the PayPal buttons on the right. And I thank everyone who has done so, and will do so.

Wednesday, February 6, 2013

Fisking the White Paper

So for several years there have been a number of secret memos outlining the legal case for drone strikes even potentially against American citizens.  Now, I can understand the idea that maybe specific memos should be secret.  White House discussions should be given the breathing room, when justified, of knowing that every word is not going to turn up on the front page of the New York Times.  That way new, different and controversial ideas can be tested out without fear of, well... pretty much the witch hunt we saw against John Yoo, and Jay Bybee.  That includes, by the way, Velvet Revolution (safe link), which is run by convicted domestic terrorist Brett Kimberlin, who has attempted to get them and others disbarred.  You know, because if there is anyone who should tell us how to treat terrorists, it is a convicted terrorist.

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 (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.



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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