Death by Fiat

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Do you remember this gripping scene from the movie, A Man for All Seasons?

William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

Barack ObamaThe leak and public dissemination of a 16-page Justice Department “white paper” has brought to light the Obama administration’s cutting of a “great road” through the Bill of Rights to get at the 21st century’s version of the Devil – Al Qaeda. Since the story broke scores of articles have been written, and Congressional hearings have and will be held, delicately dancing around the white paper that concludes that the United States can lawfully kill a U.S. citizen overseas if it determines the target is a “senior, operational leader” of Al Qaeda and poses an “imminent threat” to the United States.

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The American Civil Liberties Union called the document a “profoundly disturbing” summary of “a stunning overreach of executive authority – the claimed power to declare Americans a threat and kill them far from a recognized battlefield and without any judicial involvement before or after the fact.”

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The white paper defines “imminent threat” expansively, saying it does not have to be based on intelligence about a specific attack since such actions are “continually” planned by Al Qaeda. “In this context,” it says, “imminence must incorporate considerations of the relevant window of opportunity” as well as possible collateral damage to civilians — Legalese at its best. The document further suggests it’s not just the President who can order the killing of a United States citizen – that power is also given to an “informed, high-level official of the U.S. government”.

In other words, some “high-level official,” perhaps never-to-be-named, can suspend constitutional protections and murder a citizen without due process. This is an awesome power, not even given Henry VIII. (In less serious times, I used to joke that in DC a high-level official was anyone in government who had an office above the first floor, including secret service agents patrolling the roof of the White House).

The as yet legally untested, but already assumed policy is that if an American is likely to trigger the use of force and he can’t easily be arrested, he can be murdered with impunity. This notwithstanding state and federal laws that expressly prohibit non-judicial killing, an executive order signed by every president from Gerald Ford to Obama prohibiting American officials from participating in assassinations, the absence of a declaration of war since World War II, treaties expressly prohibiting this type of killing, and the language of the U. S. Constitution.

People have already been assassinated based on the rationale espoused in this white paper and in yet to be disclosed legal memos. In September of 2011, the President dispatched CIA drones to kill New Mexico-born and Al Qaeda-affiliated Anwar al-Awlaki while he was riding in a car in a Yemini desert. A follow-up drone killed Awlaki’s 16-year-old Colorado-born son and his American friend. How this son qualified as a “senior operational leader of Al Qaeda” is difficult to fathom, nor do we know how many other U.S. citizens have been executed. The administration is silent. It’s estimated that some 3,500 people have died in 420 drone strikes, yet Congress has yet to hold a single public hearing. All we know for sure is that The New York Times has revealed that the administration has a “kill list” of people who are targeted for elimination–how many and who are on the list is hidden in a cloud of national security.

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CIA Director-nominee John Brennan

In fact, we don’t even know whether other Justice Department memoranda go further or stop short of the leaked white paper. The Obama administration, in decisions upheld in federal court rulings, has repeatedly denied demands by lawmakers, civil rights groups, and the media to release the legal justification for targeted killings – or even to acknowledge their existence. Yet they do exist. We know this because the leak of the white paper and the pressures of confirmation hearings forced the administration to deliver some legal justification documents to select members of Congress. Despite these few members having documents that purport to justify assassination, the administration is still unwilling to tell the American public how far they think they can go in assassinating American citizens – scary indeed.

Since the leak, a few members of Congress have promised fixes and called for hearings. A few Republicans have complained that if this were the Bush Administration it would have been eviscerated, but nobody appears ready to take on the policy itself. The Obama administration and its defenders appear comfortable defending the white paper, calling its policies and the resultant executions “legal, ethical, and wise” and suggesting everyone should trust Obama — perhaps a valid proposition for the short term, but a long-term recipe for disaster. Those who’d normally be shouting to the rafters mute their concern for fear of criticizing the administration.

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Fighting an enemy without borders bent on terrorism does not easily fit into traditional categories of war. The normal constitutional restraints on police tactics don’t seem to apply. Nor do the usual military tactics when the enemy hides behind civilians and operates in countries lacking the will or ability to cooperate with their capture or arrest. Congress simply wants the problem to go away, while the administration says, in essence– trust us — we won’t abuse our power.

Others disagree: “We are in the same position now, with drones, that we were with nuclear weapons in 1945,” said David Remnick, editor of The New Yorker. “For the moment, we are the only ones with this technology that is going to change the morality, psychology, and strategic thinking of warfare for years to come. It’s inevitable that other countries – including countries that are hardly American allies – will follow. Then what?” he said. “We want to have it both ways: to be rid of terrorist threats without going to war in the old way, and not to have to think about the ramifications.”

In the end what was simply a white paper used to provide cover to a President bent on eliminating our enemies will become “policy” that future Presidents and “high-level officials” will use to justify killing future enemies here and abroad without thought or concern for due process. The Obama Administration and its supporters ask that we sit quiet about a policy fraught with potential for abuse. Are we being foolish?

bill-of-rightsEqually troublesome is the administration’s insistence that their assassination program be clouded in secrecy. We have no idea what the actual legal justification for this administration’s policy is or how far they believe they can go. How can we look at what their policy portends for our children and grandchildren if the only document available to the public is the white paper? We don’t know who wrote it – the head of OLC or a summer intern. We don’t know whether it’s been adopted as policy by the administration, or if it’s a smoke screen to hide a much more troubling policy.

It is not unusual in matters of national security or extreme importance for the President to request a formal opinion from the Justice Department’s Office of Legal Counsel. Such opinions are carefully written and scrutinized before they bear the official seal of the Office and bear the signature of the Assistant Attorney General. I find it hard to believe that such a formal opinion was not requested. Maybe the opinion couldn’t withstand the scrutiny, maybe the Assistant Attorney General wouldn’t sign off on the conclusion reached by the white paper. We don’t know and apparently Congress hasn’t asked. Nobody’s talking. As a former “high level official” I find the lack of a formal opinion and the reliance on an unsigned white paper most troubling.

It doesn’t take a Harvard legal scholar to figure out that a high level official’s unilateral decision to order a drone attack against an American citizen runs contrary to our Bill of Rights. The immediate problem is there’s no one charged with evaluating the high level official’s reasoning that the threat is imminent, capture is infeasible, or whether the target is even an official of Al Qaeda. The white paper doesn’t even outline minimal requirements that must be met to make an assassination lawful. It only tells the reader what may be lawful. I’d be willing to bet constitutional scholars are chomping at the bit to tear the white paper to constitutional shreds, but there’s no avenue for scrutiny. The administration says they have all the justification they need to blow someone’s head off, and no one has standing to object, not even the victim.

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So given the administration’s position and because no court or Congress will put them to the test, it is incumbent on us to look carefully at what our children and grandchildren may face in the way of assassination — especially after a few years, when we have a new President, and this policy is fait accompli. What will happen now that our modern-day Will Roper, in his determination to get after the Devil, has felled with his mighty axe our only protection, the Bill of Rights?

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Awlaki’s 16-year-old son, Abdulrahman,
an American citizen

The white paper identifies an acceptable target as being “a senior operational leader of Al Qaeda … that is an Al Qaeda leader actively engaged in planning operations to kill Americans.” This leader must also pose an imminent threat to the United States. Most people would say this is a bad guy worthy of being targeted. The white paper goes on to say the President is legally justified in assassinating this individual because of his constitutional authority to protect the United States in the event of an imminent attack and the authority given to him by Congress to engage members of Al Qaeda. What the white paper does not purport to do is establish the minimum requirements necessary to make such assassination lawful. Whether the target is actually a “senior operational leader” or constitutes an “imminent threat,” is left up to the opinion of an “informed, high-level official.” Moreover, the white paper makes no determination whether the deciding official should be a civilian or in the military.

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What has garnered little attention so far has been the white paper’s assertion that legal assassinations are not limited to members of Al Qaeda. The target may be part of an “associated force,” and defines an “associated force” as a “co-belligerent” under the rules of war. (So if you’ve been acting belligerent lately, watch out.) In addition, nowhere in the white paper is there a geographic limitation. Following this logic, a drone target can be 10,000 miles away or in the middle of the United States. So if an informed official of our government determines you’re associated with an organization that’s associated with Al Qaeda, decides you’re an “imminent threat” and concludes you can’t be captured — watch the skies. A drone may be headed your way, and if he’s wrong on any count — there’s no appeal. The government will not even acknowledge it happened. Unless, of course, it’s in their interest.

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To many Americans, it seems like only yesterday, that our country’s enemies were Japan and Germany. At least back then Congress formally declared war. Over the last 50 years we’ve had lots of enemies depending on one’s point of view – communism, drug warlords, black panthers, Vietnam War protesters, Iraq, and the Taliban to name a few. One President kept an enemies list, but to my knowledge never has an administration asked for a cover-your-ass memo to justify assassination of American citizens, much less to be actively in the business of eliminating those with whom we disagree.

I’m sure the Obama administration would say that’s not what’s happening. But since Congress won’t, we must ask — where do you draw the line and who decides who lives or dies? We are obligated to ask Congress – why aren’t you exercising your oversight responsibilities and asking hard questions? To ask our government, am I not free to assemble with whom I choose, and am I not entitled to due process? What constitutes being an imminent threat – does that include protest or seeking redress? Is it “legal, ethical, and wise” (their words not mine) of my government to murder over 3,000 people using drones and hide behind words like “national security” to avoid accountability? How many of the 3,000 dead were members of Al Qaeda and posed an imminent threat? The list of questions should go on and on, the most important being: when do we get answers?

What do my grandchildren face, what do my children face, what do I face? Do we now live with a shadow government that operates under the cloak of national security? Is it “ethical” to assassinate sixteen-year-old children living thousands of miles away because someone determined they constitute an imminent threat? Will one day asking questions, marching in protest, or sitting at a lunch counter trigger a white paper saying it’s legal to order my assassination?

I have no doubt that the Obama administration and our Justice Department are people of good intentions and a desire to rid a real threat to our safety and security. I also suspect that as a matter of conscience President Obama has reservations about his policy. I’d like to remind him of another quote from the movie. Sir Thomas More says, “I think that when statesmen forsake their own private conscience for the sake of their public duties, they lead their country by a short route to chaos.”