On a libertarian lark, I thought I would read the ‘White
Paper’ obtained by NBC news that justifies the killing overseas of U.S.
citizens by drone strikes on the following grounds:
- imminent threat of attack;
- lack of feasibility in capturing the individual on time and
at low risk; as well as,
- execution of the non-judicial execution in alignment with the four
concepts underlying laws of war (i.e., “necessity, distinction, proportionality
and humanity”).
These criteria are applied in the context of the nation’s
right to self-defense against an enemy with which we are at war.
Summary
The paper is a well-reasoned argument in favor of the
current assassination campaign in which President Obama graduated President
Bush’s limited but accelerating use of drone strikes into full-blown drone
strike warfare. By reference, President
Bush’s policy was limited to highest-ranking operatives who had evaded capture
repeatedly and were conducted in the field of battle or in Pakistan, with the prior consent of that
government.
This White Paper's argument tries to lay out a legal justification for the
policy as directed toward American citizens who have joined al-Qaida, the
Taliban or unspecified “co-belligerents” (together ‘al-Qaida et al.’) and who are
“senior operational leaders” continually planning attacks. For the evident efforts that this paper
undertakes to weigh the moral ambiguities attendant to this policy, the Administration
deserves credit.
Nevertheless, this White Paper, apparently a readable
summary of a legal argument of some fifty pages, reads like a product of
someone who knows already what his conclusion is and then reverse-engineers a
legal and scholarly argument to permit a policy of extra-judicial execution of
identified individuals as acts of self-defense committed during war rather than as assassinations. The subtlety employed overlooks the fact that drones do not make America’s policy and actions righteous; decency does.
Disclaimer
Now, obviously, I may be very wrong in my conclusions as I am not trained in
the law and have two certain limitations: a possible inability to detect
references or understand special (and universally agreed) meanings of various
terms as they relate to the law.
Combining these limitations with more detailed explanations and
discussions in the parent-treatise may undermine the logic of the arguments
that I present. Nevertheless, my reservations
with the thesis argued in this White Paper include the following:
- vagueness of definitions or in applications of key terms;
- assumptions made about the centrality of decision-making
power; and,
- the uncircumscribed nature of the powers enumerated.
Critique of the Legal Framework
Three statements basically underlie the thesis of this
paper. Thoughtfully vague and devoid of
clarification of key terms, these statements permit a broad assumption of powers
(including the delivery of due-process) by one or more individuals, thus far not
vetted by the Senate, uniquely or each presumed to be an “informed, high-level
official of the U.S. government" (pp. 1, 6, 7-8, 9, 14, 16). These statements argue
that there is:
- no minimum standard specified on what allows a strike to be
ordered (pp. 1 & 16);
- little to no legal or judicial precedent (p. 4); as well as,
- no judicial “forum” (or standing) in the making and carrying
out of wartime decisions and activities (pp. 7 & 10).
Integrating these “predicates” into the framework outlined
above is a peculiar reliance on state laws, criminal statutes and judicial
decisions relating largely to domestic crime (all of which are subject to due-process
and judicial review) to justify “wartime” actions of national self-defense (as opposed
to assassination) that apparently preempt that same judicial accountability
(inter alia pp. 9-13). These sweeping powers
are then vested in one individual, perhaps more, who (or each of whom) can
decide alone the targets of lethal actions, primarily drone strikes, without
reference to:
- what and how much evidence warrants the killing of an
American citizen (or, perhaps, his assassination, in contravention of Executive
Order 12333);
- how “core” a member of al-Qaida et al. is and how actively
engaged this targeted citizen is;
- exactly what defines membership in, or being a co-belligerent
of, al-Qaida et al.;
- what constitutes a host country’s inability or unwillingness
to suppress an “imminent” threat or attack against American citizens; as well as,
- what standard of probability and immediacy meets the level
of “imminence” of attack (to be discussed in more detail).
Furthermore, I find no definition of just how high a level of authority this decision-maker has – or who
might be eligible – to qualify as an informed, high-level official of the U.S.
government. Additionally, the White Paper
appears not to cite any precedent of such an official assuming and discharging these
extraordinary and extra-judicial powers on a routine basis. Nor are there references to precedents of such an official exercising these powers without the
advice and consent of the U.S. Senate on his fitness to
discharge these responsibilities.
Finally, this individual is a specifically deputized human
being, vested with a license to order the extra-judicial execution of American
citizens without a trial or formal outside review; that is, the informed, high
level official is not a mythic being used to establish a standard of conduct,
like the ‘prudent’ man or ‘reasonable’ man.
While the logic of the argument really is internally
consistent and puts my reasoning powers to shame, the whole rationale strikes
me as so much constitutional casuistry, as if natural law were some type of
bonsai tree fit to be bent and twisted to suit the aesthetic conveniences of
the day. On the other hand, as is
familiar to us all, “make no mistake”: we face serious and perhaps mortal
threats to our security.
Reality of the Threat
The Constitution probably never contemplated anything like
the threat of gangsters like these suicidal sociopaths in the modern
world. Yet, the great national contract
was less than twenty years old when it was applied to crush the Barbary Pirates
in the 1800s in a remarkably similar threat though quite different in its degree
of lethality. It is my conviction that,
as cumbersome as the Constitution and its requirements can be, we should
think very deeply before dispensing with these deliberative constraints. Here’s why.
Casuistry and Consequences
The insidious part of this monument to reason without
conscience is the failure to define key terms; a peculiar reliance on
Congressional intent but not on Congress itself; and, a preclusion of judicial
involvement in these matters “of war”, notwithstanding the involvement of
American citizens. That is to say, a few
people in the White House make these decisions with little transparency and no
accountability.
Additionally, if the argument in this White Paper holds, it will
require but a baby-step to start assassinating American citizens inside the
United States. Why? Surely, if someone
poses an imminent threat as an enemy in some remote mud-hut village, how much
more urgent would this identified gangster’s threat be, were he traipsing
around Tribeca, Texarkana or Tacoma. The White Paper fails to define three key terms – nor does the larger parent treatise, I suspect – implicitly to delegate
an unacceptable amount of latitude to unaccountable civilians.
Analysis of Key Terms
“Imminent”. For understandable reasons, the White
Paper relaxes this definition from immediate and certain to likely and
probable, if given the chance. The
problem is how imminent is imminent? The paper argues that imminence entails
‘continual planning’ of attacks against the U.S. by a senior operative leader
of al Qaida et al., though, in reality, many drone strikes are targeting mid-to-low
level thugs.
Now what does ‘continual planning’ or ‘operations leader’
really mean in a noticeably flat organization like al-Qaida and its franchisees
in murder as they remain open to new targets of opportunity? Beats the livin’ scheiße out of me. So who determines that an American citizen is
hatching these murderous schemes? (They are being planned, without doubt.) How often is “continual”? Every day? Every week? Once in a full moon?
“Informed High-level Official of the United States
Government”. This is probably
the individual who determines subjectively, likely not adhering to any minimum
or codified standard, the level of planning to be ‘continual’ enough for the
threat of attack to qualify as imminent. It may
be that only one person makes the decision, by selecting the weekly targets for the
in-camera trial with its show-and-tell “due process”, that:
- a particular American citizen is part of the enemy;
- that designated citizen is a senior operational official;
and,
- the President should order the drone-flown elimination
without meeting a publicly accountable burden-of-proof.
Now there are well documented reports that there is an
actual committee in the White House that convenes weekly, which implies some
flexibility in the timing required to make and implement decisions. Also open to question is the presumption of
innocence since the targeted citizen has a made the "cast of killers" for the
week. The ambiguity is disconcerting. Now, one asks: ¿how high an official is this
well-informed, high-level official?
Oliver North was not a very high official. Remember the actions he basically instigated
unilaterally? Some were great. Others went too far, nearly discrediting the
Administration of President Reagan. With
more than one person making the decision, the unilateralism of LTC North and
its fall-out might well have been avoided.
Is there a standard for ‘informed’? This argues to the standard of information
needed to justify the killing, with some implicit burden-of-proof. But what is it? Who is designated as 'informed'? I do not mean to be splitting hairs and
sounding petty, which, of course, I am doing; but people’s lives, not to
mention our exceptionally American social contract, are riding on these annoyances.
“Infeasibility of Capture”. This ambiguity should be evident to anyone
who felt that the shooting of an unarmed Osama bin Laden, in violation of a
third nation’s sovereignty, was questionable from the perspective of the rule
of law. The White Paper takes pains to
spell out infeasibility. It states that,
under the use-of-force authorization from Congress in 2001 and international
law of war, temporary intrusions into neutral nations are permissible if
necessary to pursue and contest the enemy.
Still, the vagueness invites future license and relaxation
of ad-hoc, perhaps unwritten, standards of infeasibility established over
coffee, donuts and baseball cards. How
many U.S. soldiers have to be endangered justify a drone strike instead? One,
two, ten? How unwilling or unable does
the neutral government have to be? Who
decides another government is unwilling or unable to mitigate the threat in
time?
What is the collateral damage historically of Special Forces
operations to capture or (if necessary) shoot a terrorist as opposed to a drone
strike? What is collateral damage? President Obama conveniently defines away
over half of the potential collateral damage by defining a contested area
broadly and combatants even more so (i.e., all military age males). Well that makes killing easy, doesn’t it?
Other Elements of Concern
Two other elements disturb me. First, the White Paper conscientiously
documents Congressional intent on a wide array of statutes. Instead of consulting and interpreting
previous Congressional intent to permit future non-judicial executions, why not
go to Congress today and find out what it thinks before yanking the joy-stick?
Now the Congress has to face up to its complicity in this current
policy in its allowing the President to hide behind a ten year old
authorization to use force, which has gradually evolved into a cross-border imposition
of martial law. Perhaps, it is time to re-visit that out-of-date Congressional
authorization since many people believe its execution has not been handled well
in the past decade; during that re-visit, perhaps, Congress could muster up the
courage to insert itself back into the war-making process.
Doing so would not be that difficult, as I will propose in a
moment. Arguably, assassinations are different than conventional warfare where uniformed
soldier (sadly) shoots uniformed soldier. And therein lies the other disturbing
element of this White Paper. By framing a non-judicial execution of a
potential mass-murderer – and definite traitor – as part of a war, the treatise
justifies the exclusion of formal due process and judicial review
altogether.
Everyone understands that time is not permitting to have a
full court trial, with no defendant likely to be present in any case.
Nevertheless, to exclude another set of constitutionally impartial eyes (within
the limitations of individual personalities) seems extreme and not in
accordance with what the Philadelphia Convention was seeking to achieve with
the Constitution it drafted.
That Damnable Reality of Terrorism
So, while these criticisms in this essay may sound good to
some people, we need to remember that some very nasty people do want to kill as
many of us as they can; unfortunately some of those gangsters (often suicidal
sociopaths) are Americans. We cannot
dither over fine points of the law and risk another 9-11.
Nevertheless, the
over-reaction, possibly embodied in this policy of targeted killings, where
drone strikes kill something like four or eight people for every alleged
terrorist, may, in actuality, be elevating the likelihood of, or at least the
hateful desire for, just such a day of ignominy as was 9-11.
Suggested Re-Balance between Self-Defense and Rule of
Law
Among many things, we learned from Benghazi that, short of
withdrawing from the world, we cannot protect every target all the time. So what to do? Here is what I propose. Admittedly, this proposed idea ‘adapts’ (i.e., bends) the Constitution.
Hopefully this proposed procedure remains consistent
with its deliberative spirit.
- The weekly ‘baseball card’ meetings continue as they do now,
keeping in mind that that this current schedule implies that everything is not
hanging on a moment’s notice.
- If there is an imminent threat that the Administration
believes to be real, it orders the Joint Chiefs to draft a plan of capture.
- If the military commanders deem such a capture as not
realizable, the Chief of Staff of the Army, Marines or Air Force clarifies in
writing why the capture is not feasible as precisely as it can, as concisely as
possible.
- If the military leader is not willing to say this in
writing, then a mission to capture the terrorist is developed by his
second-in-command.
- Upon receipt of the plan of capture, the President orders
preliminary preparations to executed, pending a live mission.
- Upon receipt of a signed military plan or opinion-of-infeasibility, the President then immediately takes that document to, and
consults with, the two ranking Congressmen on the Intelligence Committees and
The Foreign Affairs Committees (eight people in total).
- If five of these Congressmen or duly appointed deputies say
yes to proceed, then the Administration liaises with the Supreme Court for a
warrant for the arrest of the American citizen for treason and / or probable
cause in a conspiracy to commit mass-murder.
- Upon consent by the Supreme Court Justice that the
evidence is credible for such charges to be tried in a civilian court, the
Administration then contacts the host government, where the mass-murderer is
hiding to notify it that the U.S. government will imminently make a public
announcement concerning the arrest of a certain American citizen on that
country’s soil.
- Immediately after contact, the arrangements are set up to
monitor the movement of the targeted individual and to target him.
- As those arrangements are made, the U.S. publicly announces
that the following person is (or people, if approved, are) wanted for treason
and conspiracy to commit mass-murder of innocent U.S. citizens.
- The person or group has twenty-four hours to surrender
unarmed to a host government agency; thirty-six to surrender unarmed to the U.S. Embassy or
consulate.
- In that announcement, the United States government will also
advise people living in areas near to the targeted person(s) either to persuade
them to surrender; turn them over to authorities (if feasible); or, to distance
themselves to minimize accidental injury or death should the U.S. exercise its asserted right to eliminate this citizen.
- The U.S. government clarifies that, after that 24-36 hour
waiting period with no surrender and based on the evidence documenting the
warrant, the targeted individual(s) will be judged guilty and will be 'removed' from civil society 'dead or alive'.
- The waiting time permits people in the target zone to act in
a manner best protecting themselves. In
the mean-time, drone-flights would fly to monitor the whereabouts of the
targeted terrorist.
- If the person surrenders or the people surrender, they are
transported to the United States to face a criminal trial, through the criminal courts for civilians.
- If no one shows up, the capture operation or the drone
strike is carried out, as documented previously, in a manner consistent with
the four principles underlying the laws of war.
Closing Thoughts
In closing, I would prefer to see this revised standard
apply to Americans and foreign nationals alike.
In all honesty, I would rather find a better way of neutralizing this
threat. The procedure described above
would take less than a day to complete (from picking the possible target
through the public announcement and initiation of the mission).
The benefit of this idea is giving the other branches of the
U.S. government the ability to consent to the use of lethal force outside of
the country (at least for now).
Additionally, the burden of having to present a case to the other two
branches would likely deter many of the proposed executions from ever going
forward.
As we have seen, the frequency of these drone-flown
assassinations has increased in tempo, indicating a possibility that, as people
become used to ordering the execution of others, their inhibitions decrease,
freeing a propensity to do another ‘surgical’ strike all over again, but even
sooner the next time around. Despite the
obvious and incontestable decency of President Obama, the reluctance to order
non-judicial executions is apt to decline over time as he gets used to
ordering them.
Edward J. McDonnell III
U.S. Peace Corps
Querétaro, México.