Top Five Objections to the White House’s Drone Killing Memo

NBC’s Michael Isikoff has revealed the text of a white paper composed for Congress by the Department of Justice that sheds light on the legal arguments made by Eric Holder in justifying the killing by drone strike of Americans abroad, who are suspected of belonging to al-Qaeda. That the memo did not even require that the US know of a specific and imminent plot against the US, of which the al-Qaeda member was guilty, for it to kill him from the skies, alarmed all the country’s civil libertarians.

Here are five objections to the vision of the memo, which it seems to me is directly contrary to the spirit and the letter of the US constitution. It is contrary in profound ways to the ideals of the founding generation.

1. In the Western tradition of law, there can be no punishment without the commission of a specific crime defined by statute. The memo does not require that a specific crime have been committed, or that a planned criminal act be a clear and present danger, for an American citizen to be targeted for execution by drone.

2. To any extent that the president’s powers under the memo are alleged to derive from the 2001 Congressional Authorization for the Use of Military Force, i.e. from the legislature, they are a form of bill of attainder (the History Learning Site explains what that is here):

“A bill, act or writ of attainder was a piece of legislation that declared a person or persons guilty of a crime. A bill of attainder allowed for the guilty party to be punished without a trial. A bill of attainder was part of English common law. Whereas Habeus Corpus guaranteed a fair trial by jury, a bill of attainder bypassed this. The word “attainder” meant tainted. A bill of attainder was mostly used for treason . . . and such a move suspended a person’s civil rights and guaranteed that the person would be found guilty of the crimes stated in the bill as long as the Royal Assent was gained. For serious crimes such as treason, the result was invariably execution.”

What, you might ask, is wrong with that? Only that it is unconstitutional. Tech Law Journal explains:

“The Constitution of the United States, Article I, Section 9, paragraph 3 provides that: “No Bill of Attainder or ex post facto Law will be passed.” . . .

“These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted. A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment.” William H. Rehnquist, The Supreme Court, page 166.

The form of the AUMF, in singling out all members of al-Qaeda wherever they are and regardless of nationality or of actual criminal action, as objects of legitimate lethal force, is that of a bill of attainder. Congress cannot declare war on small organizations– war is declared on states. Such a bill of attainder is inherently unconstitutional.

3. The memo’s vision violates the principle of the separation of powers. It makes the president judge, jury and executioner. Everything is done within the executive branch, with no judicial oversight whatsoever. The powers the memo grants the president are the same enjoyed by the absolute monarchs of the early modern period, against whom Montesquieu penned his Spirit of the Laws, which inspired most subsequent democracies, including the American. Montesquieu said:

“Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.

Most kingdoms in Europe enjoy a moderate government because the prince who is invested with the two first powers leaves the third to his subjects. In Turkey, where these three powers are united in the Sultan’s person, the subjects groan under the most dreadful oppression.

Ironically, given contemporary American Islamophobia, the Obama administration has made itself resemble not the Sun-King, Louis XIV, who at least did have a court system not completely under his thumb, but rather, as Montesquieu saw it, the Ottoman sultans, who he claimed combined in themselves executive, legislative and judicial power. (Actually the Muslim qadis or court judges who ruled according to Islamic law or sharia were also not completely subjugated to the monarch, so even the Ottomans were better than the drone memo).

4. The memo resurrects the medieval notion of “outlawry”– that an individual can be put outside the protection of the law by the sovereign for vague crimes such as “rebellion,” and merely by royal decree. A person declared an outlaw by the king was deprived of all rights and legal protections, and anyone could do anything to him that they wished, with no repercussions. (The slang use of “outlaw” to mean simply “habitual criminal” is an echo of this ancient practice, which was abolished in the UK and the US).

I wrote on another occasion that the problem with branding someone an “outlaw” by virtue of being a traitor or a terrorist is that this whole idea was abolished by the US constitution. Its framers insisted that you couldn’t just hang someone out to dry by decree. Rather, a person who was alleged to have committed a crime such as treason or terrorism had to be captured, brought to court, tried, and sentenced in accordance with a specific statute, and then punished by the state. If someone is arrested, they have the right to demand to be produced in court before a judge, a right known as habeas corpus (“bringing the body,” i.e. bringing the physical person in front of a judge).

The relevant text is the Sixth Amendment in the Bill of Rights:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

5. The memo asks us to trust the executive to establish beyond the shadow of a doubt the guilt of an individual in a distant land, to whom access is so limited that the US cannot hope to capture him or have local authorities capture him. But Andy Worthington has established that very large numbers of the prisoners the US sent to Guantanamo were innocent of the charges against them. If the executive arm of the government can imprison people mistakenly, it can blow them away by drone mistakenly. A US government official once told me the story of an Iraqi Shiite who had fled persecution under Saddam through Iran all the way to Afghanistan. In 2001, locals eager to make a buck turned him in as “Taliban” to the US military, which apparently did not realize that Iraqi Shiites would never ever support a hyper-Sunni movement like that. So the Iraqi Shiite was sent to Guantanamo and it could even be that Taliban themselves were paid by the US for turning him in. The official may have been speaking of Jowad Jabar. These American officials are way too ignorant to be given the power to simply execute human beings from the sky on the basis of their so-called ‘intelligence.’

Then there is the whole premise of the memo, quite apart from its substance. The memo, as Glenn Greenwald points out, ratifies the Bush/Cheney theory that the whole world is a battlefield on which the US is continually at war. Treating the few hundred al-Qaeda, spread around the world in 60 small cells, as an enemy army, making them analogous to German troops in WW II, is insane on the face of it. Our current secretary of state, John Kerry, largely rejected the notion. Al-Qaeda consists of criminals, not soldiers, and they pose a police counter-terrorism problem, not a battlefield problem. The notion that the whole world is a battlefield violates basic legal conceptions of international law such as national sovereignty.

96 Responses

  1. It appears that you never sleep, Dr. Cole.
    I count 6 objections, with two numbered “3.”

  2. Note that the still-secret full text of the OLC assassination justification was co-athored and signed by David Barron, now a Harvard law prof.

    • That’s malfeasance and grounds for removal of tenure. Harvard’s law faculty should do that.

      If they don’t, Harvard Law School should be de-accredited.

      It’s also grounds for revocation of Barron’s law license, though I forget the precise terminology for why.

  3. It is clear that our President, a constitutional scholar, is committing war crimes in violation of the constitution, crimes for which he could and should be impeached. Note that there have been a number of attempts to raise the issue of impeachment by Republicans on various other issues, but none on this, the Elephant in the Living Room.
    Why not? Because both parties accept and support these violations of the constitution. They favor an extra-judicial Executive, one that is above and beyond the law in the conduct of foreign affairs.
    Something will eventually have to give: either the Constitution will have to be abolished and laws that reflect the reality of autocracy put in place, or both parties will have to return to sanity, which means submission not only to Federal, but international law.
    I hope for the second, but I see no movement in this direction. So many Progressives fail to condemn Obama in this. Thanks for this, Juan.

    • Just a thought, but think back to press coverage of Yemen in the months before al Alwaki was killed (early Sept ’11). There seemed to be a nasty turf war over US policy in Yemen going on between CIA & Pentagon — drones vs. Yemeni special forces trained & supplied by JSOC, with both sides leaking information to the press regularly, in efforts to influence a White House decision. (Petraeus was himself one of the leakers.) Clearly, whoever got to al Awlaki first would get bragging rights and license to design & execute policy to follow.

      Maybe there’s a very good reason why the white paper just released was (intentionally?) written with little care and lawyerly attention — and why no one outside the White House has seen the actual operational document detailing the assassination of both al Alwaki and his 16-year-old son, a couple weeks later in October. Maybe that call by the Administration was made post-facto. It certainly wouldn’t be the first time US policy was conducted by the White House looking in the rearview mirror.

    • Both major parties return to sanity ?
      What are the chances even one of them does ?
      There are other parties.

      • This should horrify every peace loving American. I do not want to live in a country where my president and his appointed few can make up a “Kill List” and then execute these supposed (not verified) “Terrorists” along with innocent children (178 so far) and think this is okay!
        I feel that I am back in the George W. Bush era. I am sickened that the man that I voted to be my president would do such a thing! What has happen to the “Rule of Law” in this country?

      • And indeed, it is most likely that reform will come from other parties.

        The Federalists and the Whigs are long gone. The same may happen to the Democrats and/or the Republicans.

    • So was/is Alan Dershowitz. No magic involved in having mastered the lingo and niceties of a particular body of scholarship. Bork was a con law perfesser too, and many would say that Earl Warren knew a thing or two about it. For every proposition of rights and obligations under the general umbrella of the “Constitution,” as extended by the Bill of Rights and a long history of push and shove over crap like “substantive due process” that’s back in vogue, there’s a countervailing proposition, rule, interpretation, gloss, shading, et cetera.

      As the neocons and the War Department and much of State and of course the CIA are wont to say, “there is only power.” “Rights” are for suckers. And so are the “legal” pasties and g-string, which really don’t conceal all that much of that raddled, poxed fille de joie, now do they?

      • Those views aren’t reflective of the State and CIA officials that I’ve known.

        And the War Department went away in 1947. And yes, I know you meant it ironically. However, you will find that in recent decades the State Department has pretty consistently been more inclined to send the military in than has the Defense Department, because it’s Defense’s people who get killed and maimed, their stuff that gets broken, their money that gets spent and their reputation that gets besmirched when the operation goes south.

    • A con law analysis that does not recognize that the police power and the war-making power are two different things is not, in any sense, “excellent.”

      • Luckily, Juan’s analysis does recognize this.

        You don’t, because you have been consistently incapable of understanding what the warmaking power is, legally.

        • Ah, so the arguments about juries, indictments, crimes, statutes, bills of attainder, judicial review, and outlaws are all about war powers, and not criminal law?

          You sure about that, Nathaniel?

          You’re clearly very emotional right now. Maybe once you cool off a bit, you can another run at that question.

    • Joe: the warmaking power simply does not apply to assassinations of civilians sitting at home.

      Never has, never will.

      Go learn what “warmaking” actually consists of, legally.

  4. the drone strikes are part of warfare; they’re not punitive, so most of your objections are simply inapplicable.

      • Since when are operation commanders of a fighting force considers non-combatants?

        Do you think that shooting at generals instead of privates is unlawful, because generals don’t pull triggers themselves?

      • “Since when was assassinating non-combatants considered a legitimate form of a warfare?”

        Assassinating non-combatants has never been considered a legitimate form of warfare. And the United States upholds this key provision of the Law of War by targeting only Senior Leaders and Operatives of Al-Qaeda and its affiliated organizations. The US does not target innocent non-combatants.

  5. Bad Latin –

    Under point 2:
    FOR: Habeus Corpus
    READ: Habeas Corpus

    I know it’s in a quote, but it’s still wrong.

  6. You’re better than you know. Six, not five (point 3 is repeated twice).

    Whatever the number, thank you for another excellent posting.

  7. So much palaver about little niceties of, ahem, urp!. “AUMF” legalities. So horribly little about wisdom.

    In the meantime, SOCOM and AFRICOM continue to grow, like medium-sized tumors…

  8. When the powers that Obama has selected for himself are explained to the King of Bahrain, I imagine he’ll be confused, and will probably need some therapy.

  9. Suppose the capture or killing of Osama bin Laden is legal and carried out by SEAL Team 6. Why is it not legal for another American force, drone or Teaam 6, to kill Osama’s henchmen who are guilty of the same crimes as Osama? If the federal government waited until Congress approved each military move, all Americans would be in trouble. The President has the power and approval to act quickly.

    • Whatever happened to declarations of war? Did they NEVER mean anything? Now, a U.S. Citizen can just disagree with U.S. policy, associate (used to be a freedom) with people someone (we don’t know who) has deemed to be undesirable, and now that person can be legally killed on the order of someone in the White House. Isn’t there a bit too much “trust us, we’re from the government” in your take on this, Mr. Wesolowski?

      • “Whatever happened to declarations of war? Did they NEVER mean anything? Now, a U.S. Citizen can just disagree with U.S. policy, associate (used to be a freedom) with people someone (we don’t know who) has deemed to be undesirable, and now that person can be legally killed on the order of someone in the White House. Isn’t there a bit too much “trust us, we’re from the government” in your take on this, Mr. Wesolowski?”

        Two points, Mr. Rizzo.

        A. In all of the conflicts in which the United States has been involved since adoption of the Constitution (something like 130), there have only been five declarations of war: The War of 1812, The Mexican War, The Spanish-American War, World War I, and World War II. Declarations of war are the exception, not the norm.

        B. The drone program does not target US citizens who disagree with US policy or associate with those simply deemed “undesirable.” The program targets those who are “senior, operational leaders” of Al-Qaeda and its affiliated organizations. Read the White Paper.

        • The distinction between propagandists and ‘operational’ leaders seems to be blurred out on the ground.

        • “The drone program does not target US citizens who disagree with US policy or associate with those simply deemed “undesirable.” The program targets those who are “senior, operational leaders” of Al-Qaeda and its affiliated organizations. Read the White Paper.”

          On whose definition? Can we at least know that, please? Oh, right, the informed person ordering the killing. I read the paper. This program is so ripe for morphing into something that would even bother you, perhaps, it is breathtaking.

        • But there is no proof a crime. There is no evidence to prove it. No opportunity to surrender. And don’t forget the 178 children who are “casualties” of the war. And he prattles on about gun control, and protecting children. There is no justification for one man, Obama or a designated official, to be judge, jury or executioner.

      • Now, a U.S. Citizen can just disagree with U.S. policy, associate (used to be a freedom) with people someone (we don’t know who) has deemed to be undesirable, and now that person can be legally killed on the order of someone in the White House.

        This is not even remotely accurate, and has nothing to do with the doctrine put forward in the white paper.

        Did you read it?

        • Joe, you obviously didn’t read the white paper. In fact, this is a pretty accurate description of *exactly what it says*:

          “Now, a U.S. Citizen can just disagree with U.S. policy, associate (used to be a freedom) with people someone (we don’t know who) has deemed to be undesirable, and now that person can be legally killed on the order of someone in the White House.”

        • In fact, Nathaniel, I did read the white paper. Every single instance in which it identifies who may be targeted uses the phrase “operational commander of al Qaida and associated groups.”

          Every.

          Single.

          One.

          The white paper does not assert, ever, anywhere, the right of “someone in the White House” to order someone who is not “an operational commander of al Qaida or an associated organization” to be killed.

          Go ahead, champ, quote me some language from the white paper that demonstrates I am misstating what appears in it.

    • Joe, if there were an objective definition of “operational commander of an al-Qaeda group”, which could be appealed in court, that would mean something.

      But there isn’t. The US government freely declares random schlubs to be “operational commanders of al-Qaeda” — witness the absolutely ridiculous number of “#2 leader in al-Qaeda!!!” who the US has announced the deaths of.

      After all, you could be an “operational commander of an al-Qaeda group” if the President decided that you were. And you would have *no legal recourse* to prove that you weren’t. WHICH IS THE POINT, YOU MORON.

  10. Some thoughts.

    A. The White Paper states that the US can lawfully kill one of its own citizens if it determines that the person is a “senior, operational leader” of Al-Qaeda or one of its affiliates. The emphasis is on “senior, operational leader” of Al-Qaeda or one of its affiliates. That the person in question is a US citizen grants him no more immunity from attack than if a member of the German army waging war against Americans in World War II happened to also be a US citizen. This is war, not criminal activity.

    B. That some pundits talk about US citizens located “far away from any battlefield” illustrates a naive view of the war being waged. It suggests that this is a war fought within certain geographic boundaries. It is not. The battlefield in this case encompasses the area in which the terrorists operate as well as the area in which their target is located. There is no designated geographic “battlefield” as such pundits apparently define the term.

    C. As for being charged for a crime, this is a war in which Al-Qaeda and its affiliates are attacking the US. This is not a group of thugs knocking of a Seven-Eleven convenience store or committing murder while attempting armed robbery. The US criminal justice system does not apply here.

    D. The term “imminent threat” is applicable because, as the White Paper states, Al-Qaeda and its affiliated organizations are “continually involved in planning terrorist attacks against the United States.”

    In short, I think the White Paper pretty well makes the case for the Administration’s policy.

    • “This is war.” Half a trillion bucks a year to do what, again? “Take down” a possible hundred or so people who might not be malleable and amenable to the Overall Grand Plan? In light of the reality that the most effective tools against the behavior called “terrorism” have in fact been plain old LAW ENFORCEMENT, gumshoe, cops-and-robbers plays?

      “WAR!?” As redefined and expanded by those who keep repeating and repeating the position you espouse, in the hope that no one will maybe have any niggling little thoughts about “wisdom,” once the latest version of John Yoo has offered a nice-sounding “legal argument” and “justification” and “don’t you worry about mission creep, all you taxpaying citizens and illegal aliens, we’re all over this” suave reassurance.

      On another front, sure seems the Constitution and the US Criminal Justice System do not apply to some other aspects of the Imperial Presidency that have been chewed over in Informed Comment and other place, and the creeping, nay, galloping pace, of State Securitization, as in what’s been done to all those Dangerous Occupiers by illegal detentions and gas and beatings and getting shot in the face by “non-lethal projectiles.” All of which, of course, have been “justified” by the same bunch who tell us that Droning and Assassination are, you know, “legal,” because “AUMF!” Nor does the “law” apply, apparently, to Banksters, or contractors to the War Department, etc….

      One wonders if there will be immunity from arbitrariness, or maybe some kind of reward structure for people who speak up on behalf of the Lordlings. It worked, for a time, for Quislings and such-like…

      • Do you really think the drone program costs half a trillion bucks a year?

        I’ve adopted a now process for dealing with your commentary: I read until I find the first grossly untrue assertion of fact, and then stop reading.

        As usual, it is in the very first sentence.

        • “This is rich: Joe from Lowell offended by pervarications.”

          I think you meant prevarications, Brian.

        • To answer your first question: Naw, of course not. It’s just part of the whole thing that does cost in the trillions, the thing you argue constantly to justify “legally,” since apparently there’s not much wisdom arguable in doing all the stuff “we” are doing, the whole “global war on terror” though of course we can’t call it that any more, now can we?

          What is your concise statement of “our national interests,” again? The ones that are threatened by al Quaeda and all those terrorists out there? And any betting on who will be the last guy or gal in US uniform to be remembered as the last one to die after “we” vacate Afghainistan, “mission accomplished?” As you say, “Care to make it interesting?” Maybe we could gin up a lottery on the date that will be inscribed for that last idiot death on whatever memorial us wistful homebodies cobble up to sanctify the sacrifices of others?

        • Yes, Brian, I am offended when people engage in bullshit when discussing matters of import.

          I cling to an apparently old-fashioned idea that people should be truthful.

          I guess you don’t. You consider it “rich” to hold to such a standard.

          Your comment tell us a great deal, but only about yourself, and how seriously to take whatever you write in the future.

      • Brian: Just because a war may be unwise doesn’t mean it isn’t a war. I think a very strong case could be made that most wars throughout history have been unwise. The wisdom of this war is an important question but not relevant to the question at hand of whether these assassinations are legal.

    • This illustrates the risk that waging war has for a democracy. During war there are few constraints of what a president can do. That is probably necessary in a time of emergency. As long as the emergency is limited in time, the legal excesses can be reigned back in after the emergency passes. That is why “emergency decrees” are so popular with dictators.

      The only way this system works is if the wars are limited in time. Terrible damage to the US legal system was done during WWII and previous wars but after the wars ended things returned to normal. This war at 10+ years is causing damage at an ever increasing rate. One wonders if the damage can be undone.

      You illustrate the problem; an ever widening war in geography, an ever vaguer idea of who the combatants are, and no notion of what victory is. Of course this is all covered with ever mode vague “laws” and secret “laws” too! This is clearly a downward spiral. The only way to stop it is to end the war which will then break the logic that drives us ever downward.

      • “You illustrate the problem; an ever widening war in geography”

        It is indeed, and it is so because Al-Qaeda and its affiliated organizations continue the war and expand their geographic reach. I would advise you to lecture Al-Qaeda and its affiliated organizations on the need to ratchet down its aggressive war against the United States and the West. They are the ones who need the lesson.

        • Bill, because the US military has arrogated to itself the “right” to murder random civilians in Pakistan, frankly, I think Al-Qaeda is the one on the right side of the law of war at this point; the US is simply committing war crimes.

          The US has committed multiple acts of war against Pakistan. Pakistan is simply being polite in not declaring war on the US; in fact, Pakistan has the right to get a UN operation against the US.

          The murder of bin Laden was illegal; the legal thing to do was to have him arrested by the Pakistani government.

        • “Bill, because the US military has arrogated to itself the “right” to murder random civilians in Pakistan”

          Are you being deliberately disingenuous, Nathanael? The US military has followed, and is following, the rules of engagement set out in US policy: namely the targeting of Senior Leaders and Operatives of Al-Qaeda and its affiliated organizations. It has not “arrogated to itself the ‘right’ to murder random civilians in Pakistan.”

        • The problem begins with American ideology thinking we are the ones “to teach a lesson”? America which overthrows governments, maintains 800 bases and 243 golf courses and a ski resort for the military.

          The Defense Budget is in EXCESS of half a trillion it’s at $688 billion, and I have yet to confirm if that is inclusive of the budget for Department of Homeland Security, which fast seems to be a recruiting vehicle for college aged, second generation immigrant Americans to achieve positions of military like power. What is that budget, and why is there an arming of Homeland Security?

          The issue is Precendence, one named Terror group can easily be replaced by a second or by a whole ethnicity. That’s why this shouldn’t be accepted. There is not a declaration of war?

      • What ever widening war in geography? One of the very first actions the Bush administration took after the September 20 AUMF was to send Special Forces to the Philippines. Special Forces have been operative in North Africa since 2002. Bush launched a drone strike in Yemen in 2002.

        Where is this war being fought in 2013 that is was not being fought in 2002?

  11. Very good Juan! (Don’t forget folks, Juan himself admits that he couldn’t do this without his talent for typing faster than he can think..amazing how few typos.)

    To me, all this legal stuff is simply “word-smithing” to accomodate what our foreign policy has been since after WWII. We think our job is to control the world and we therefore are entitled to devise whatever means we want to do that. The best recent example of that was HRC’s battle with the WH over what to do with Syria. She wanted to supply arms directly that would tip the balance and bring down Assad so we could step in and ensure that our friends would be in the new “stability” created. That was rejected but look at the outcome. She is a world wide rock star. A more sensible approach from her would have gained her nothing. The voters simply don’t care what we do as long as the purpose is to eliminate “bad guys”. “Say one thing, do another” is so simple.. So effective!

  12. It seems there are approximately 536 elected officials in Washington who didn’t really mean it when they swore to uphold the U.S. Constitution. Since the attorney general and all federal judges, including supreme court justices, are appointed by and serve at the pleasure of those officials, the question of whether or not any of them decide to uphold the constitution becomes moot. And that, my fellow Americans, is where things are.

  13. This is an excellent dissection of the “murder all the suspects” doctrine, Dr. Cole!

    At this point, perhaps the best hope is the near-certainty that our reactionary-right Supreme Court will be happy to slap down a Democratic president. Good thing the issue didn’t come up while Bush the Lesser was still in power.

  14. You make the statement: “Al-Qaeda consists of criminals, not soldiers…”. They are (mostly) not criminals. They are insurgents or revolutionaries; they are fighting for a cause. After 10+ years of fighting this war we can’t even acknowledge this fact. The thousands of fighters that fight for Al-Qaeda are not doing it to get rich! They have joined a cause and will likely pay a terrible price. And yet they still come. We should probably ask why.

    Now, of course, there is more than one component to their “cause”. Some fight to drive out foreign domination. Some fight for the spread of Islam. Some fight for their tribe. Some fight for glory. Of course some fight for money. Killing these people is not a particularly effective way of defeating their cause. Defeating their cause is the only way to stop the steady stream of recruits. Ultimately, that is the only way to win.

    Curiously, we do not want to examine their “cause” too closely. Some elements sound too close to things that we might fight for. Fighting for independence or fighting oppression sounds good to us. Examining their cause might make us examine our “cause”. We must not do that: no. no. no.

    Other facets of their cause are not going to happen so we needn’t worry about them. Some in Al-Qaeda fight for an extreme form of Islam. This is not going to happen. The best people to fight that battle are other Moslems who mostly reject extreme beliefs. This little different battle that we face in the US with our home grown Christian extremists. That is to say, that it is an on-going battle of ideas and sometimes violence. In the Islamic world, it is Moslems that understand this battle, we are clueless.

    To dismiss Al-Qaeda as just criminals short circuits any attempt at understanding this war. It makes us think of it as a war of weapons and not a war of ideas. That makes it a war without end. It need not be so.

    • First of all, most al-Qaeda types seem to be unemployed losers, though there are some exceptions. “Insurgents” is a little lofty here. Second of all, they specialize in killing innocent civilians, which is a crime. Hence, they are criminals.

      Real insurgents fight to liberate their territory from an occupier and concentrate on killing innocent troops.

      • Still, their intent is political rather than material. Labeling them as criminals does help to delegitimize them, appropriately all things considered. Still, their intentions are political and ultimately the force that empowers them need to be recognized on that basis to be properly addressed. A bit of a paradox I suppose.

        • Travis: you’re correct. The US has been aiding and abetting the political plans of bin Laden. He wanted to convince the world that the US was a brutal, murderous, vicious, evil country which slaughtered civilians.

          Well, the US has been doing its best to be a brutal, murderous, vicious, evil country which slaughters civilians. Bin Laden’s mission has been accomplished.

      • “Insurgent” and “criminal” are not mutually exclusive terms. And the definition of insurgent fighting to liberate territory is overly limiting. People can fight to liberate political spaces other than territories.

        Moreover, defining AQ as “criminals” constructs an enemy for our own convenience and runs contrary to the Sun Tsuvian imperative to understand our enemy. It’s extremely hard to defeat an enemy that you don’t understand–short of inflicting crushing casualties on them that approach genocide.

  15. Targeted assassination. WTF. So prior to this bromide, this koolaid, this semantic witchcraft, assassinations weren’t targeted?
    Presumably Kennedy and Martin Luther King were killed by accident after someone decided to do some random killing?
    The most Orwellian insertion.
    “Oh, they’ve **targeted** them. It must be OK. Am I marching in step?”

  16. Speaking of the constitution, Art III, Section. 3, in its entirety:

    “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

    The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”

    — Nobody here has mentioned treason, but I suppose it wouldn’t be…torturing….the above definition to see AQ as an enemy of the US. As to remedies and the power of the presidency, that’s been effectively a matter of congressional deference since Jefferson engaged the Barbary pirates. When they get their act together (!), it has been constrained (see Jackson’s opinion in the Steel Seizure case which is considered a defining precedent).

    The bottom line is that the congress has the power of the purse, and if it really wants to assume responsibility for these kind of things it can, but doesn’t. Actions do need to be taken, and often with decisiveness, and the Executive is happy to gather that power unto itself, aside from the fact it needs to in the face of congressional fecklessness.

    The issues raised here are real, and profoundly troubling, but to address the underlying circumstances and attendant problems is a far more complex problem.

    • Having read that, I can’t help but wonder how useful the testimony of Awlaki might have been to refute or clarify or utterly contradict or even corroborate the hearsay renditions of discussions that are related here. Oh, wait! He was killed before he could be arrested and questioned. Rats.

      • Awlaki was beyond the reach of the law, in a remote part of Yemen controlled by hostile militias.

        Drone strikes are not used to replace captures and arrests; they are used when capture and arrest are not available. That’s why they are happening in remote areas of Yemen, Pakistan, and Somalia.

        • Joe from LowL,
          I’ve served in USA Army Special Forces.
          Awlawki was not out of reach of SOCOM, regardless of what you are told by DoD “information operations.”

          I estimate the marginal cost of capturing him would have been around $20 Million + 0.5 soldier’s lives (dead and/ or wounded.)
          I estimate the effort to find UBL cost around $2 Billion, give or take $5 Billion.
          I estimate the hit raid cost $200 Million, from planning on through execution.
          I cannot defend these estimates, but they make my point.

          As in most situations, there’s a cost-benefit analysis that ultimately informs the decision.
          Just how much is the “Rule of Law” worth ?

        • Joe from LowL, I’ve served in USA Army Special Forces.
          Awlawki was not out of reach of SOCOM, regardless of what you are told by DoD “information operations.”

          It is admirable that you served in the US Army Special Forces, Brian, but you have no idea from your current vantage point what the calculations were that determined the cost-benefit of capturing vs. killing Al-Awlaki. The military obviously weighed the costs and determined that killing Al-Awlaki was the way to go. Unless you were in on the calculations and determination, your estimates bear no relation to reality. Just because it is theoretically possible to capture someone doesn’t mean the cost is worth it.

        • I suppose, Brian, that a Black Hawk Down operation is always technically an option, no matter how long the odds, or how bloody it could turn out to be.

          You ask about cost-benefit analysis. It’s estimated that over 1000 Somalis were killed in Mogadishu that day. Shouldn’t that enter into your cost-benefit analysis?

          But what does any of this have to do with the rule of law? The rule of law doesn’t require that we capture people we are at war against.

    • While I do not condone what the person in question did, I think it could be placed under the rubric of what Chalmers Johnson called “blowback.” link to thenation.com

      Here is one of the quotes from the document you cited:

      “in retaliation for U.S. support of Israel and in retaliation of the killing of innocent and civilian
      Muslim populations in Palestine, especially in the blockade of Gaza, and in retaliation for the
      killing of innocent and civilian Muslim populations in Yemen, Iraq, Somalia, Afghanistan and beyond”); id. (defendant committed an “act of jihad against the United States for the U.S. killing of my Muslim brothers and sisters around the world”); id. at 27 (defendant acted “to avenge”);id. (defendant acted “in retaliation”); id. at 28-29 (defendant acted “for the U.S. oppression of
      Muslims,” “for U.S. interference in Muslim countries,” “for U.S. use of weapons of mass destruction on Muslim populations” in various countries, and “for the U.S. wreckage of Muslim lands and property”).

      Methinks there is some truth to the quote above since the wars the USA has promoted in the region IS TERRORISM. In Iraq alone, about 1.5 million people died as a result of the invasion. And the USA continues to interfere in the internal affairs of other countries to the detriment of their peoples.

      The USA had a big role in creating Al Queda during the Soviet Afghan War. Reagan helped fund the religious schools that hatched many miliatants. link to news24.com (And, “the war on terror” has become an excuse to take away our rights here at home and march on to a police state.)

      Karma and blowback is a bitch. But sadly for the people of the Middle East, they sit atop “our oil.” So, anything that gets in the way of that gets retaliated against. And so it goes and the burden will continue.

      It would take a major policy change, NOT drone attacks or assasinations to change the outcome of this conflict. Anything else is *not going to work.* The people who become militants do so because they see no other option.

      • This is a combination of breathtakingly stupid and highly offensive. Whatever problems there have been with US foreign policy, there is nothing sympathetic about people who choose to butcher innocents in the name of God. Yes, we should modify our behavior in areas where our actions are wrong, but we should not alter our behavior to address the complaints of some of the worst people on this earth.

        • The US goes around committing acts of terrorism and supporting brutal dictators. What the hell do you EXPECT the results to be, bunnies and puppies?

          Realpolitik says the US should stop murdering civilians and stop supporting brutal dictators. Nobody in the US government understands realpolitik.

        • Seth,
          mostly we don’t terrorize the butchers.
          Mostly, we terrorize the civilian population.
          95% of our war against “Terrorism” and brutal occupation in Afghanistan is waged against the civilian population.
          Most of our kinetic interactions are with civilians.
          If you are a combat vet, please take a hard look at your own anecdotal experience.

  17. With all that has been revealed about the Obama administration: the situation of no prosecutions of criminal bank fraud in the HSBC case—they got a fine but nobody went to JAIL. The fact that that bank has been laundering drug money and supporting terrorists in the middle east. There is also the other fact that Obama signed the NDAA, and now we see this memo indicating their true intentions. I just DO NOT GET IT why people including the author of this blog support him on *anything.* IMO he has no legitimacy. Isn’t it rather obvious who he really supports? And to me it is not ordinary people. We are seeing a two tiered “justice system” here in high relief. The latest brouhaha about gun control is a prime example. The man sits with kids in his lap even as *he orders drone strikes that kill kids and non combatant innocent people in other countries.* How much BS can you stomach?

    OH…and this too from Zero Hedge:

    Department of Homeland Security to Purchase 7,000 “Assault Weapons”

    link to zerohedge.com

    “The hypocrisy of the government knows no bounds. I have said repeatedly, and continue to say, that I am against all gun control at the moment because our government is extremely violent and not only do I not expect it to protect the American people in general, I believe it is far more concerned with protecting the status quo from the people. It has become crystal clear that the political and financial oligarchs are quite intentionally attempting to disarm the populace while arming themselves to the teeth in anticipation of some horrible economic event they know is inevitable……”

    So…the POTUS can kill anyone he deems fit without any due process using our VIOLENT government (how convenient), but guns in the hands of ordinary people could be forbidden….or at least this could be a leadup to it?

    Let’s see here now…CAN you really trust the government?

      • Joe From Lowell, since you are an operational leader of al-Qaeda (if the President decides that you are), the President can murder you, according to the doctrines in this white paper.

        The key is the fact that there is NO REVIEW. The President has arrogated the power of judge, jury and executioner into the executive branch.

        • “The key is the fact that there is NO REVIEW. The President has arrogated the power of judge, jury and executioner into the executive branch.”

          No, Nathanael, the Constitution’s Article II, Section 2 grants the President the title of Commander in Chief of the Armed Forces. In doing so, the Constitution granted the President and Executive Branch the power to make military decisions. No “review” of such decisions was contemplated.

        • Why would you think I was an operational commander of al Qaeda?

          Do you have even the slightest intelligence to back that up?

          Do you think that 100 people in the executive branch, reviewing intelligence, are going to come to the conclusion that I am an operational commander of al Qaeda?

          Your assertion that there is “NO REVIEW” is utterly belied by the widely-reported facts of how these reviews are carried out. Did you never see the widely-discussed New York Times article discussing this?

          You expend a great deal of emotion, but you consistently garble the facts.

    • Please look up the reason why the laws against Star Chamber style courts were passed.

      There were kings who claimed the exact same powers which Obama claims. Those kings were quite clear: they would conduct a careful review, done entirely by direct employees of the king, in secret, and then the king would decide whether you were innocent or guilty. What could you possibly complain about?

      Well, you, Joe From Lowell, would obviously *NOT* complain. If the king’s men say you’re a traitor, you’re a traitor!

      This makes you, technically, a supporter of *autocracy*, also known as *despotism* or *tyrrany*.

      There were different rules for war. War involved, you know, armies and battlefields. Assassinations did NOT count as acts of war even if they took place during a war.

  18. Thank you, Juan, for your clear and cogent analysis. I would add just a couple of observations to your summary. According to Isikoff, the paper “was provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and not discussed publicly.”

    I wish Isikoff had not employed the obfuscating passive voice in detailing the way the paper was distributed. When, exactly, in June (and why June?) did “members of the Senate Intelligence and Judiciary committees” receive it? Did all the members get copies, or only some? And if only some, which members –and why only them? And which “administration officials” “provided” it? Did they appear before the committees and hand out copies of the memo, admonishing each member that she or he could have a copy only on the condition that she or he keep it confidential and not discuss it publicly? Or did a number of “administration officials” (elected? appointed?) meet with these members at their offices?

    This is especially interesting, since the copy of the document provided by N.B.C. News nowhere indicates such conditions, nor is it marked “Confidential” or “Secret.” Since members of the Senate Judiciary and Intelligence committees are, presumably, elected by citizens of the United States to serve in the Senate, they are accountable to those citizens for their actions. But since they are not named, how can we ask them about agreeing not to discuss this matter with us, a matter of vital import to every citizen? Why didn’t any of them tell us that they refused to accept the conditions and so can’t discuss the contents of the Paper? Finally, since the paper directly concerns the legal rights, the life and security of American citizens, how can it possibly be “not publicly discussed”?

    This curious, if not monstrous, dis-connect between the citizens of the United States and their representatives in the U.S. Senate, in the Department of Justice, and in the Executive branch has, if the document released is genuine, become the new norm, as its chillingly Orwellian language reveals. It shows up in the title and runs through the entire (undated and unsigned) document. Here is the title: “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force.”

    “Lawfulness” is a bizarre choice for a document whose sole purpose is the evasion of the law. Then we have “a Lethal Operation.” We don’t say killing (too graphic), or murder (too legal) or assassination (too political). No; we say “a Lethal Operation,” is “directed against” a U.S. Citizen. Somehow, that is, a U.S. Citizen is simply “disappeared” by an “operation” carried out by unspecified “operators” under the direction of an “unspecified person or persons.” It’s almost as though it never happened at all –and so none of us are really guilty.

    This evasion of responsibility and twisting of language out of all recognition runs through the whole sixteen pages of this ugly document. It is self-condemning and leaves the whiff of Pontius Pilate. No wonder it is unsigned and undated.

    James Watt, Emeritus Professor of English, Butler University

  19. I seem to recall that the ’9-11 conspirators’ were reportedly seen hanging out in strip bars and other Moslem persons have been doing things that were outside their normal (as in ‘what they would do in their own lands’) behaviours. For these acts, they were chided and derided as being unfaithful and untrue to their ideals. Except that their activities (have) had immunity so long as they were committed in the lands of the infidels.
    Now, we have American leaders who order acts to be committed that are illegal in the United States but seen as legitimate in far-off lands (or, in the case of Gitmo, no so far-off islands). As long as the acts are ‘over there,’ it seems that there are no restrictions or penalties. Sorta like, ‘what happens in Vegas (or Baghdad or Kabul or Hanoi or elsewhere) stays there’ sort of thinking.
    As far as the Americans killed in other lands, it might be said that they are fugitives from justice and are just asking for their fates. There has been something about mercenaries in the service of foreign nations being outlaws, something that can be selectively determined and remedies applied.*
    Could it be that extrajudicial terminations have been going on so long that they just seem ‘normal’ now? The instigators are just ‘coming out,’ as the social vernacular would have it. (Gotta come out because there are too many skeletons in the closet and there’s no room left for the clandestine?)
    But, we have how many former American politicians who can’t travel to foreign countries for fear that retribution will be visited upon them? So, instead of some geographical limitations, there is the notion of ‘Karma,’ that of ‘what goes around, comes around.’ Something about Newton’s Third Law comes to mind …

    * link to ratical.org

  20. 1. The drone strikes are not criminal sanctions. They are not exercises in the police power, but the war power. There has never been a requirement for judicial authorization to shoot at the enemy during a war. Just because air strikes have become a great deal more accurate does not turn them into criminal penalties.

    2. Same as #1. Authorizing force against member of al Qaeda is no more a “bill of attainder” than authorizing force against the Kaiser’s army. Again, just because air strikes have become a great deal more accurate does not turn them into criminal sanctions.

    3. In the prosecution of a war, and the selection of targets, the executive has always had the war-making power. “Judge, jury, and executioner” are terms used to describe criminal proceedings deriving from the police power.

    4. Same at 1, 2, and 3. Enemies can be shot at in war not because they are outlaws, but because they are the enemy. When a tank crew shoots at another tank, are they declaring them to be outlaws? Of course not. Their actions has nothing to do with legal status at all. Again, just because air strikes in a war have become more accurate does not transform them into criminal sanctions.

    5. Thank you for your opinion that using military force against al Qaeda is “insane on the face of it.” This is a policy dispute to be settled through our democratic system. Good luck!

  21. Shorter joe from Lowell:

    When Bush blew up people for corporate profits, it was a war crime.

    When Obama does it, it’s for USA FREEDOM! USA! USA! USA!

    • “Corporate Profits”

      Ah, yes, drone strikes in the rich territories of rural Yemen, Somalia, and the rural areas of Pakistan are about “corporate profits.”

      Obviously, a desire to prevent al Qaeda from launching terrorist attacks against us is so utterly implausible as a reason for the strikes that there must be some economic motive.

      I know: we’re launching drone strikes into Yemen as the first part of a long-term plan to steal their nothing. Added to the nothing that is so prevalent in Somalia, it adds up to a rich prize indeed.

      END THE DRONE STRIKES! NO WAR FOR NO OIL!

      • Yemen is at the mouth of the Red Sea, through which 10% of the world’s trade and 8% of the world’s petroleum flow. Aden is a key port for the Arabian Sea. Yemen also abuts Saudi Arabia, which produces 11% of the world’s petroleum. Yemen is poverty-stricken, but it is very important from a geostrategic point of view.

  22. Under this document would it be lawful for a foreigner to conduct a lethal operation against senior operational leaders of the United States or “associated forces” on the grounds that such leaders operate beyond the reach of international law? After all American forces or actions have killed far more people than Al-Qaeda and the layers of protection afforded to such leaders make ordinary law enforcement impractical. Would it be lawful for American citizens to act against senior operational leaders of U.S. forces using the same logic? To me that is a very scary proposition.

    • Under this document would it be lawful for a foreigner to conduct a lethal operation against senior operational leaders of the United States or “associated forces” on the grounds that such leaders operate beyond the reach of international law?

      Is that “foreigner” a sovereign government that has declared war on the United States?

      Because, if so, then yes, it would be lawful to conduct a lethal operation against senior operational commanders of the United States’ fighting forces. Of course it would.

      • Joe from Lowell is correct.

        Pursuant to which I have heard it asserted from a US Government official that if you look closely at authoritative US Government sources about what happened on 9/11 the USG (at least early on) described what happened in New York and Pennsylvania as terrorism but soft-pedalled what happened at the Pentagon for precisely that reason.

        I cannot confirm this, but it would seem to make sense.

  23. Brian’s point about the savings in money and lives of drone attacks is well taken. This is the military justification, and in fact, drones are part of an international movement toward less violent warfare that is less costly and kills fewer people. Those considerations have obviously won out over the legal ones in the halls of power. That having been acknowledged, clearly Juan, myself, and many of the commentors to this excellent post agree with Lord Shaftesbury: “What is morally wrong can never be politically right.”

    • “This is the military justification, and in fact, drones are part of an international movement toward less violent warfare that is less costly and kills fewer people. Those considerations have obviously won out over the legal ones in the halls of power.”

      Actually, the military justification for the use of drones against Senior Operatives in the war against Al-Qaeda and its affiliated organizations has won out not only because it is more efficient, but also precisely because it is legal.

    • McNamara-style “cost-effectiveness” thinking, the kind that even he acknowledged after the fact was stupid and maybe even evil, currently trumps not only the “legal” considerations, it also brushes away almost all consideration of what some here sneer at as “alternatives.” “We have the tools, we have the talent! It’s Miller ™ time!” Yeah, there are day-to-day “necessities,” the product of yesterday’s STUPID, that the whizzzz-BANG! kids can elevate as excuses for what they really want to do anyway. But who’s supposedly looking out for what all Empires supposedly claim as their birthright, that “thousand year” endurance? and gee, what about that idiot notion of promoting the general welfare, stuff like not eating ourselves out of house and planetary home, since food and shelter and stuff are even important to hegemonists, over the long haul? Yeah, I know, “al Quaeda!” and “national interest!” and “security!” and all that jazzzz.

      But once again, each human works, most of them, to maximize his or her own pleasure and profit during his or her little lifetime, aided by the kind of forebrain activity that Joe and Bill exemplify that makes whatever they immediately want to do “all right,” ignoring that lesson in kindergarten where you are offered one piece of candy now, or five if you can go all day without hitting anyone… “Apres moi, le deluge,” after all, so who cares?

  24. A resolution of impeachment could certainly be introduced against those who put their names to the Memo, authorizing summary executions. Though unknown at the moment, precisely to avoid impeachment; the names of those signing the Memo could be added, once revealed at a hearing.

    Alternatively, the Senate or a committee could determine the names, and then ask the House to impeach the officeholders.

  25. When I read some of the comments in this thread from some obviously thoughtful, intelligent, and concerned people, the words of Bertrand Russel seem worth repeating: “The whole problem with the world is that fools and fanatics are always so certain of themselves, but wiser people so full of doubts.” How about more doubt about your own presuppositions and less childish attacks on those that disagree with you? They only demonstrate your own lack of objectivity.

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