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.
“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.”
“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.
Consider Inauguration Day, more than two weeks gone and already part of our distant past. In its wake, President Obama was hailed (or reviled) for his “liberal” second inaugural address. On that day everything from his invocation of women’s rights (“Seneca Falls”), the civil rights movement (“Selma”), and the gay rights movement (“Stonewall”) to his wife’s new bangs and Beyoncé’s lip-syncing was fodder for the media extravaganza. The president was even praised (or reviled) for what he took pains not to bring up: the budget deficit. Was anything, in fact, not grist for the media mill, the hordes of talking heads, and the chattering classes?
One subject, at least, got remarkably little attention during the inaugural blitz and, when mentioned, certainly struck few as odd or worth dwelling on. Yet nothing better caught our changing American world. Washington, after all, was in a lockdown mode unmatched by any inauguration from another era — not even Lincoln’s second inaugural in the midst of the Civil War, or Franklin Roosevelt’s during World War II, or John F. Kennedy’s at the height of the Cold War.
Here’s how NBC Nightly News described some of the security arrangements as the day approached:
“[T]he airspace above Washington… [will be] a virtual no-fly zone for 30 miles in all directions from the U.S. capital. Six miles of the Potomac and Anacostia Rivers will be shut down, with 150 blocks of downtown Washington closed to traffic, partly out of concern for car or truck bombs… with counter-snipers on top of buildings around the capital and along the parade route… [and] detectors monitoring the air for toxins… At the ready near the capital, thousands of doses of antidotes in case of a chemical or biological attack… All this security will cost about $120 million dollars for hundreds of federal agents, thousands of local police, and national guardsmen from 25 states.”
Consider just the money. It’s common knowledge that, until the recent deal over the renewal of the George W. Bush tax cuts for all but the richest of Americans, taxes had not been raised since the read-my-lips-no-new-taxes era of his father. That’s typical of the way we haven’t yet assimilated the new world we find ourselves in. After all, shouldn’t that $120 million in taxpayer money spent on “safety” and “security” for a single event in Washington be considered part of an ongoing Osama bin Laden tax?
Maybe it’s time to face the facts: this isn’t your grandfather’s America. Once, prospective Americans landed in a New World. This time around, a new world’s landed on us.
Making Fantasy Into Reality
Bin Laden, of course, is long dead, but his was the 9/11 spark that, in the hands of George W. Bush and his top officials, helped turn this country into a lockdown state and first set significant portions of the Greater Middle East aflame. In that sense, bin Laden has been thriving in Washington ever since and no commando raid in Pakistan or elsewhere has a chance of doing him in.
Since the al-Qaeda leader was aware of the relative powerlessness of his organization and its hundreds or, in its heyday, perhaps thousands of active followers, his urge was to defeat the U.S. by provoking its leaders into treasury-draining wars in the Greater Middle East. In his world, it was thought that such a set of involvements — and the “homeland” security down payments that went with them — could bleed the richest, most powerful nation on the planet dry. In this, he and his associates, imitators, and wannabes were reasonably canny. The bin Laden tax, including that $120 million for Inauguration Day, has proved heavy indeed.
Given the enemy at hand — not a giant empire, but scattered jihadis and minority insurgencies in distant lands — all of these institutions, which make up the post-9/11 National Security Complex, expanded in ways that would have boggled the minds of previous generations (as would that most un-American of all words, “homeland”). All of this, in turn, happened in a poisonously paranoid atmosphere in Washington, and much of the rest of the country.
“The Obama administration’s internal legal justification for assassinating U.S. citizens without charge has been revealed for the first time. In a secret Justice Department memo, the administration claims it has legal authority to assassinate U.S. citizens overseas even if there is no intelligence indicating they are engaged in an active plot to attack the United States. We’re joined by Jameel Jaffer, deputy legal director of the American Civil Liberties Union. “If you look at the memo … there’s no geographic line,” says Jaffer. “The Obama administration is making, in some ways, a greater claim of authority [than President Bush]. They’re arguing that the authority to kill American citizens has no geographic limit.” [includes rush transcript]
Guest: Jameel Jaffer, deputy legal director of the ACLU.
The United Nations also launched a major investigation into the legality and casualties of drone strikes by the United States, Britain and Israel.
January 2013 actions
Total CIA strikes in January: 6
Total killed in strikes in January: 27-54, of whom 0-2 were reportedly civilians . . .
The CIA began 2013 with six drone strikes in nine days – more in any single month since August 2012.
With double the strikes hitting Pakistan this month compared with January last year, 2013 could see renewed intensity in the CIA drone programme.
The month’s first strike killed powerful Taliban commander Maulvi (or Mullah) Nazir, ‘perhaps the most prized feather in [the] cap’ of the drone programme to date, according to one commentator. Nazir co-ordinated attacks on Nato and Afghan forces in Afghanistan and had long been a target of the CIA.
However his group refrained from terrorist attacks within Pakistan, earning the label ’good’ Taliban. Brigadier Asad Munir, a retired commander of the ISI, told the Bureau his death could cause serious problems for Islamabad. He said peace with Nazir was essential since Pakistan’s army cannot simultaneously fight both Nazir’s militants and the TTP – the so-called ‘bad’ Taliban behind numerous lethal attacks in Pakistani cities.
Despite this, Pakistan’s response to the strikes in January was muted – notably so, according to Associated Press, as loud protestations had followed almost every strike in 2012.
This could indicate that relations between the allies have improved from their 2012 nadir. The CIA may also have tried to mollify Islamabad by killing senior TTP commander Wali Muhammad Mahsud and announcing that Maulana Fazlullah, commander of the Swat Taliban,is now high on its kill list. The Swat Taliban shot schoolgirl Malala Yousafzai and launches attacks on Pakistan from its bases in Afghanistan. Islamabad has repeatedly called on Nato and Afghan forces to crack down on the group.
Confirmed US drone strikes: 0 Further reported/possible US strike events: 8 Total reported killed in US operations: 0-38 Civilians reported killed in US strikes: 0-7 Children reported killed in US strikes . . . 0-2
* All but one of these actions have taken place during Obama’s presidency. Reports of incidents in Yemen often conflate individual strikes. The range in the total strikes and total drone strikes we have recorded reflects this.
Whether or not drone strikes are being conducted in such a manner as to rise to the level of war crimes is an important issue.
The other set of important questions around armed drones are constitutional in nature. The people being targeted by the drones are not an enemy army of a state on which the US has declared war. They are suspected criminals or terrorists. But they haven’t been put on trial.
The permission by Washington and London for drones to kill people
involves a clear depriving of those individuals of their right to due process.
The US Department of Justice insists that it has the capability of trying them and determining that they are in the process of attacking the United States, thus permitting them to be killed as a form of self=defense. But that review process occurs entirely within the executive branch, violating the principle of the separation of powers. The executive is the judge, jury and executioner.
The drone program in the United States is hugely anti-democratic because the whole thing is classified. Therefore, it cannot be publicly discussed or debated with the officials behind it, who can neither confirm nor deny its very existence.
In short, the biggest innocent victim of the drones, after the noncombatant adults and children who are killed in the strike, is the United States Constitution.
You might have heard about the “kill list.” You’ve certainly heard about drones. But the details of the U.S. campaign against militants in Pakistan, Yemen, and Somalia — a centerpiece of the Obama administration’s national security approach – remain shrouded in secrecy. Here’s our guide to what we know— and what we don’t know.
Where is the drone war? Who carries it out?
Drones have been the Obama administration’s tool of choice for taking out militants outside of Iraq and Afghanistan. Drones aren’t the exclusive weapon – traditional airstrikes and other attacks have also been reported. But by one estimate, 95 percent of targeted killings since 9/11 have been conducted by drones. Among the benefits of drones: they don’t put American troops in harm’s way.
The CIA isn’t alone in conducting drone strikes. The military has acknowledged “direct action” in Yemen and Somalia. Strikes in those countries are reportedly carried out by the secretive, elite Joint Special Operations Command. Since 9/11, JSOC has grown more than tenfold, taking on intelligence-gathering as well as combat roles. (For example, JSOC was responsible for the operation that killed Osama Bin Laden.)
The drone war is carried out remotely, from the U.S. and a network of secret bases around the world. The Washington Post got a glimpse – through examining construction contracts and showing up uninvited – at the base in the tiny African nation of Djibouti from which many of the strikes on Yemen and Somalia are carried out. Earlier this year, Wired pieced together an account of the war against Somalia’s al-Shabaab militant group and the U.S.’s expanded military presence throughout Africa.
The number of strikes in Pakistan has ebbed in recent years, from a peak of more than 100 in 2008, to an estimated 46 last year. Meanwhile, the pace in Yemen picked up, with more than 40 last year. But there have been seven strikes in Pakistan in the first ten days of 2013.
How are targets chosen?
A seriesofarticles based largely on anonymous comments from administration officials have given partial picture of how the U.S. picks targets and carries out strikes. Two recent reports – from researchers at Columbia Law School and from the Council on Foreign Relations– also give detailed overviews of what’s known about the process.
The US government continues to rain drones down on the tribal belt of Pakistan. While the Washington narrative is that these drones are precision machines that only kill terrorists, this story is not true.
The drone program is classified, and so it cannot be publicly debated. It cannot even be acknowledged by President Obama and his cabinet members. Drones are operated by civilians and sometimes by contractors. That is, we are subcontracting assassination.
Americans who were upset that the president did not seek congressional authorization for the enforcement of the no-fly zone in Libya are apparently all right with his administration bombing Pakistan without explicit authorization (the 2001 one authorizes action against perpetrators of 9/11, not their children.). The Obama administration has declared that no judges or judicial process need be involved in just blowing away people, even American citizens.
Of the some 3000 persons killed by US drones, something like 600 have been innocent noncombatant bystanders, and of these 176 were children. In some instances the US drone operators have struck at a target, then waited for rescuers to come and struck again, which would be a war crime. Obviously, children may run in panic to the side of an injured parent, so they could get hit by the indiscriminate second strike.
We don’t know the exact circumstances of the children’s deaths because the US government won’t talk about them, indeed, denies it all.
Someone actually wrote me chiding me that the Newtown children were “not in a war zone!” Americans seem not to understand that neither is Waziristan a “war zone.” No war has been declared there, no fronts exist, no calls for evacuation of civilians from their villages have been made. They’re just living their lives, working farms and going to school. They are not Arabs, and most are not Taliban. True, some sketchy Egyptians or Libyans occasionally show up and rent out a spare room. So occasionally an American drone appears out of nowhere and blows them away.
Robert Greenwald of the Brave New Foundation explains further: (warning: graphic and not for the squeamish):