NATIONAL SECURITY FEBRUARY 6, 2013
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The Justice Department white paper released on Monday by NBC News is the public's first direct glimpse at the legal reasoning that the Obama administration relied on in using a drone strike to kill Anwar al-Awlaki, a U.S. citizen living in Yemen. The memo's arguments are troubling on many levels. Although the Obama administration's brief is directed at the assassination of Americans abroad, the arguments it offers could apply with equal force to the assassination of Americans at home; lawyers for the Bush administration who tried to justify lesser outrages have been pilloried for supporting torture. But perhaps most troubling is the administration’s attempt to redefine the idea of the kind of “imminent threat” that can justify a targeted assassination.
The U.S. Supreme Court has previously held that the police can only use deadly force against fleeing, dangerous suspects when killing the suspect is “necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” But, in a vast expansion of this narrow precedent, the Obama administration says that the U.S. is not required “to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future” in order to assassinate U.S. citizens whom the government believes are Al-Qaeda leaders. Instead, the memo argues a “decision maker determining whether an al-Qaeda operational leader presents an imminent threat of violent attack against the United States must take into account that certain members of al-Qaeda …. are continually plotting attacks against the United States; that Al-Qaeda would engage in such attacks regularly to the extent it were able to do so; that the U.S. government may not be aware of all al-Qaeda plots as they are developing and thus cannot be confident that none is about to occur.”
In light of the government’s possible ignorance of plots that may or may not exist, the memo concludes, when an al-Qaeda leader “has recently been involved in activities posing an imminent threat of violent attack against the United States, and there is no evidence suggesting that he has renounced or abandoned such activities, that member’s involvement in al-Qaida’s continuing terrorist campaign against the United States would support the conclusion that the member poses an imminent threat.”
This is an extraordinary conclusion. In Fourth Amendment cases, the Supreme Court has stressed that “the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.” In reaching this conclusion, the Court rejected the eighteenth century rule allowing the use of whatever force is necessary to arrest a fleeing felon because “changes in the legal and technological context”—namely, the expansion of felonies to include non-violent offenses and new weapons technology (in particular, automatic guns) that make it possible for the police to kill suspects whom they previously would have had to physically subdue.
The Obama administration takes this narrow precedent and twists it beyond recognition. While the Supreme Court cited the existence of new weapons technology as a reason for narrowing the conditions under which the police can use deadly force, the Obama administration uses drone technology as an excuse for broadening those conditions. “What would constitute a reasonable use of lethal force for purposes of domestic law enforcement differs substantially from what would be reasonable in [this] situation,” the administration concludes. (In fact, the possibility of tracking suspected terrorists with drones, rather than killing them, suggests that targeted assassinations are even more constitutionally vulnerable today than they would have been at the time of the American framing.)
When officials conclude that “capture is infeasible,” the memo continues, “the intrusion of any Fourth Amendment interests would be outweighed by …. the interest in protecting the lives of Americans.” But of course, the question of whether American lives are, in fact, imminently threatened by a particular suspect is precisely the determination that the administration claims the right to make on its own—without an opportunity for an independent judge to examine the factual basis for the claim. “There exists no appropriate judicial forum to evaluate these constitutional considerations,” the Justice Department insists.
This “trust us” argument is precisely the one the Supreme Court rejected in the 2004 Hamdi, where the Court upheld the Bush administration’s power to detain enemy combatants, on the grounds that it had been authorized by Congress, but only after insisting that suspects could challenge the factual basis for their detention before a neutral decision maker. The Obama administration repeatedly invokes the Hamdi case to justify targeted assassinations, which have been specifically prohibited by Congress, and then omits the Supreme Court’s requirement that independent judges need to have the last word on whether or not suspects are, in fact, as dangerous as the administration claims.
The principle that core constitutional rights can’t be abridged unless there’s an imminent threat of violence isn’t only central to the Supreme Court’s understanding of the Fourth Amendment. It’s also the keystone of the Court’s understanding of the First Amendment protections for free speech. In his concurring opinion in Whitney v. California, the greatest opinion on free speech in American history, Justice Louis Brandeis objected to a law that made it a crime for a member of the Communist Labor Party of California to teach syndicalism, an anarchic alternative to capitalism.
Brandeis objected that “the accused is to be punished not for contempt, incitement, or conspiracy, but for a step in preparation, which, if it threatens the public order at all, does so only remotely.” Brandeis insisted that speech could only be banned if it “would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the State constitutionally may seek to prevent.” He added that there must be “reasonable grounds to believe” that the danger is imminent and serious. And, in a reminder of his faith in public deliberation, he said the danger had to be “so imminent” that it was likely to occur “before there is opportunity for full discussion …. Only an emergency can justify repression.” Finally, like the Supreme Court in Hamdi, Brandeis insisted on the importance of neutral, judicial review. “It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.” Brandeis’s reasoning was adopted by the Supreme Court in a 1969 decision holding that speech can never be suppressed unless there is a serious threat of imminent violence; the Obama administration, ignoring this precedent, wants to justify not only suppressing speech but also assassinating citizens without specific and credible evidence of imminent violence.
There are other reasons to object to the administration’s justification of targeted assassinations—including its questionable claim that they are legally supported by Congress’s authorization of the use of force after 9/11. On pragmatic grounds, the administration's brief is a disaster: As the Church Commission found after studying the attempted assassinations of Castro, targeted killings are likely to produce an international backlash that threatens far more American lives than they protect. But, as a legal matter, the casual, and unpersuasive, attempt to read out of American constitutional law the principle that government can only kill citizens in order to prevent imminent death or violence in return is the most objectionable of all.
16 comments
The memo may be a disaster, but this response either misses or avoids the only relevant questions: (1) Is the target beyond the reach of American law enforcement and (2) are the circumstances those of war or crime. If the circumstances are those of crime, then it ought not matter whether the target is an American; extra-judicial killing would be unconstitutional. The Fifth Amendment by its terms applies to "persons," not to citizens. If, on the other hand, the circumstances are those of war, none of the law regarding the rights of criminal suspects is relevant. Killing on the field of battle is not preceded by criminal procedure. And in that case too the citizenship of the target is irrelevant. An American serving in a foreign army with which we are at war is in no manner protected from being a target because of citizenship. The question of whether the criminal law or the law of war applies may not be easy to answer with regard to terrorism and terrorists, but it is the relevant question. And the nature of terrorism is such that it may be legitimate to allow our government the choice whether to apply the criminal law or the law of war. As pointed out in the NY Times discussion on this subject, during the Civil War, Americans in rebellion were targets of war. Why? Because the Confederacy was beyond the reach of American law enforcement and the circumstances were those of war. The criminal law and criminal procedure did not apply even though they might once combatants were rendered hors de combat. Or, as was the case, they could be held as prisoners of war, which means that the law of war was being applied. I think the arguments in the memo are irrelevant. It's a bad piece of legal work, because it confuses the most important issue, whether the criminal law or the law of war applies, but the key questions remain to be answered with or without the memo. Rosen avoids them just as the memo does.
- roidubouloi
February 6, 2013 at 1:42am
(seems to me this really isn't rocket science, and that roidubouloi has (with two comments) summarized the issues rather well, excepting the still-roiled political and moral sensibilities involved, which rightly call for a much, much better *public* discourse on the matter than experience suggests will be forthcoming from the U. S. government and many others.)
- cdmcl3
February 6, 2013 at 7:17am
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And if the circumstances are those of war and the law of war applies, that is not the end of the matter. Then the question is whether the target is engaged in combat or hors de combat. It is not permitted to kill an enemy soldier who is hors de combat. That would be a war crime. The administration seems to be arguing that terrorists who are beyond the writ of the law and cannot be taken prisoner are necessarily not hors de combat and hence are legitimate targets. It errs in trying to reconcile that with criminal law and criminal procedure. The two are irreconcilable. There certainly can and will be errors in which innocents die. That is a predictable consequence of combat. Thus, the key question returns, Is this or is this not combat to which the law of war applies?
- roidubouloi
February 6, 2013 at 1:55am
The memo, tortured by intellectual contortions though it is, is not on its face 'reading out' of our constitution "the principle that government can only kill citizens in order to prevent imminent death or violence;" it is 'reading into' that principle a radical redefinition of the term 'imminent danger,' i.e. in the combat against al-Qaida, we are perpetually in a state of imminent danger and that suspected terrorists who are also American citizens shall always be subject to the use of deadly force.
- iqbalicarus
February 6, 2013 at 2:28am
I am also unclear about why Rosen construes this definition as patently unconstitutional. If, as ROIDOBOULOI alludes to above, we were to grant to the administration the ability to apply criminal law to terrorism cases and if the administration chose to do so, then why (assuming that the memo's reference to imminent danger is not doublespeak and instead an earnest evaluation of the conditions of the war on terror) is it so self-evident that killing terrorists (who would by their fugitive nature constitute fleeing suspects) by way of a police action is unconstitutional?
- iqbalicarus
February 6, 2013 at 2:49am
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I don't disagree that this is a very problematic policy, but the idea that torture is a "lesser outrage" than killing is a very questionable point. It is more final perhaps, but while there are treaties outlawing torture, and amendments outlawing cruel and unusual punishment, killing is considered a acceptabel form of statecraft and sanction (at least legally). From the standpoint of international norms and behavior, targeted killing is actually the more acceptable policy. I don't think the only reason you don't hear more outrage is because its a Dem president, but killing is actually the more legally acceptable route.
- XLProfessor
February 6, 2013 at 5:54am
I opened this comments thread intending to make a particular point only to find that roidubouloi has already made it. Rosen critiques the memo on grounds that it is inconsistent with established rules for the operation of the criminal justice system, but this is like critiquing a football coach for his failure properly to apply the designated hitter rule. The administration memo bears no relevance to the criminal justice system; it is about the conduct of war. As roidubouloi points out, if a person takes up arms against the United States, he is subject to being killed--without due process--regardless of his citizenship. I would be surprised if it weren't the case that at least one soldier in the WW-II armies of Germany or Italy were not United States citizens by birth. Should such citizenship, no more than an artifact of decisions that soldier's parents made when he was still a child, have conferred special status to that soldier as against his comrades in Wehrmacht with regards to his being killed at the hands of the American military? Of course not. But then how is the al-Awlaki case any different? There may well be sound arguments to be leveled against the legality of targeted killings of terrorists in general, but it is hard for me to see how a particular terrorist's US passport renders him any less valid a target for assassination than any other jihadi who wants to see the Great Satan go up in smoke. Either we're at war with al Qaeda or we aren't. If we aren't, then targeted killing of ANY of the organization's members is unlawful. If we are, then the killing of NONE of its members is unlawful.
- AaronW
February 6, 2013 at 8:01am
What this case highlights is that we have yet to come up with guiding principles for justifying "intervention" when there is no state actor involved, when the "enemy" is not a state but an organization or simply individuals with shared grievances. The reasoning in the memo is simply an extension of the reasoning for preemptive war. The Millsian (John Stuart Mill) principles for intervention are a good starting point. Michael Doyle has updated the principles but his focus in primarily on the humanitarian case for intervention. Fourth amendment and other bill of rights cases are inapposite. Rosen and other legal scholars need to reorient their focus. Indeed, the justification for assassinating a suspected terrorist is an easy case; how about justification for intervening in another country (such as Syria). Without guiding principles we are vulnerable to MOAM (men on a mission), with disastrous consequences.
- rayward
February 6, 2013 at 8:42am
My issue is not who but when can we kill? It bothered me (and still bothers me) that we invaded a country and killed and destroyed the lives of thousands of people on an allegation of imminent threat. Absent an actual battle field, an American citizen killed in the active conduct of blowing up other Americans can be justified but is the allegation of active participation in the management of Al Qaeda enough to qualify something as an imminent threat?
- Nusholtz
February 6, 2013 at 8:51am
It is essential to keep track of the differences between the law of war and domestic law to have any hope of navigating through this thicket. For example, it is illegal under the law of war to prosecute a legal combatant, suitably identified by a uniform, for killing the enemy in combat, although murder is a domestic crime. That is, it is IMPERMISSIBLE to apply domestic, criminal law to legal combatants. I think there is a strong argument that, in the case of illegal combatants such as terrorists, the state has the legal and moral choice of applying either domestic, criminal law or the law of war. However, it is not a case of mix and match where you can pluck one thread from one body of law and one from another. If a terrorist can be reached by domestic law enforcement (and that includes being reached because in the territory of a foreign state with the willingness and ability to apprehend and), then there is the possibility of applying the criminal law. But then the criminal law has to be applied with full observance of the constitutional norms. It ought not be permitted to treat someone as a criminal without according all of the rights that we accord to criminal suspects and convicts. If, on the other hand, the criminal law is unavailable for a any of a multitude of practical reasons, that surely does not mean that we cannot fight illegal combatants under the law of war. It would be beyond absurd if by refusing to comply with the law of war that renders a combatant a legal combatant, an enemy could thereby achieve immunity. But then, if we are going to pursue an illegal combatant under the law of war, we must observe the law of war. That includes no torture and conditions of detention, if we do not choose to apply the criminal law and conduct a trial, that are consistent with the Geneva Conventions on the treatment of prisoners of war. It is not so complicated, but we make it so by failing to distinguish which body of law applies and why. The case that Aaron raises, of Americans who fought for the Axis, and there surely were some, makes clear that they could hardly expect impunity on the field of battle and had no right to special treatment, such as the application of criminal procedure, if captured as prisoners of war. But it is possible that such combatants, unlike German soldiers, could have been prosecuted for treason under the criminal law, although I do not believe that any who were uniformed Axis soldiers were so tried. Iva Toguri D'Aquino, an American citizen born to Japanese immigrants, who was one of the "Tokyo Roses" who broadcast Japanese propaganda in English during the war, was convicted of treason in 1948. But she did not serve in uniform.
- roidubouloi
February 6, 2013 at 9:05am
Not even the Bush administration was willing to claim that the invasion of Iraq was in response to threat so imminent that it was a proper invocation of the right of self-defense or a humanitarian intervention. They discussed it, but concluded they could not stretch self-defense that far. In the absence of UNSC authorization, that made the invasion an illegal act of aggressive war, a war crime. To try and evade just this legal result, Bush claimed that the invasion in 2003 was authorized by the UNSC resolution of 1991 in the First Gulf War because Hussein was in violation of the terms of the armistice. It would be generous to call this interpretation fanciful. The hostilities in 1991 had been terminated. The UNSC was not out of business in 2003. It was therefore for the UNSC, not an individual member, to decide whether Hussein's violations were such as to justify renewed hostilities. A friend of mine who is a prosecutor at the ICC tells me that there are both jurisdictional and political obstacles to prosecuting Bush, Cheney, et alia for war crimes committed in Iraq. The crime of aggression is subject to the Rome Statute, but requires that the crime be further defined in order for the court to have jurisdiction. This had not yet occurred in 2003. I believe there are now appropriate definitions due to take effect in 2017.
- roidubouloi
February 6, 2013 at 9:19am
****Not even the Bush administration was willing to claim that the invasion of Iraq was in response to threat so imminent**** //////////////////////////////// (sorry for the *** and ///, but they don't let us designate quotes anymore here) When I am told that the smoking gun will be a mushroom cloud, the Saddam Hussein seeks Yellowcake uranium, and that aluminum tubes are to build a bomb, I count that as justification of imminent threat. Here are a bunch of quotes:////////////// 'For instance, speaking to the Veterans of Foreign Wars in 2002 (Associated Press, 8/26/02; State Department, 8/26/02), Vice President Dick Cheney described Iraq as “a mortal threat” and “as grave a threat as can be imagined.” “Simply stated,” Cheney told the vets, “there is no doubt that Saddam Hussein now has weapons of mass destruction. There is no doubt he is amassing them to use against our friends, against our allies and against us.” Furthermore, Cheney warned, “Many of us are convinced that Saddam will acquire nuclear weapons fairly soon.” Testifying before Congress (AP, 9/18/02), Defense Secretary Donald Rumsfeld added urgency: “No terrorist state poses a greater and more immediate threat to the security of our people and the stability of the world than the regime of Saddam Hussein in Iraq.” George W. Bush himself insisted that Iraq not only had and was making more banned chemical and biological weapons, but, “according to the British government, the Iraqi regime could launch a biological or chemical attack in as little as 45 minutes after the orders were given” (New York Times, 9/27/02). On the White House website (9/26/02), the same claim was stated as fact, with no attribution to any source. On October 2, Bush described Iraq as “a threat of unique urgency” (AP, 10/2/02). A few days later, he darkly warned a Cincinnati audience (USA Today, 10/8/02): “Facing clear evidence of peril, we cannot wait for the final proof, the smoking gun that could come in the form of a mushroom cloud.”
- Nusholtz
February 6, 2013 at 6:08pm
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The Bush administration's reaction to 9/11 was to identify a state actor as the "enemy", making the laws of war the guiding principles. Of course, the administration then stretched those guiding principles to non-state actors. It was that leap, from state actor to non-state actor, that has left the US vulnerable to MOAM; we have no guiding principles for determining whether US criminal law, international law, or the laws of war apply. Can the laws of war apply to non-state actors? To one non-state actor? To one non-state actor who is a US citizen located outside the US? To one non-state actor who is a US citizen located within the US? These are interesting and important questions, but they divert attention from the biggest question of all: when is intervention in a state justified? That's the macro question; these other diversions are the micro questions. You can't answer the micro questions unless and until you answer the macro question.
- rayward
February 6, 2013 at 9:46am
Your macro question has an answer, or at least the outline of an answer, rayward. It is just that the neocons and sometime fellow travelers like Leon Wieseltier and other editors of TNR don't like the answer. The UN Charter allows for armed force in only two circumstances: self-defense (individual or collective) or UNSC authorization. That's it. International lawyers will now say there is a third basis, an "evolving doctrine" of humanitarian intervention given concrete expression in the UN's "responsibility to protect." Of course, none of this is self-executing. Interpretation by human beings is required. But none of it allows for the invasion of Iraq or various regime-change interventions demanded by neocons and idealists like Wieseltier. The question when a non-state actor triggers the right of self-defense is a separate question and really does not require that your macro question be answered beyond the determination that the right of self-defense is properly invoked. I think it has been a terrible failure of the Congress and the president to fail to make the effort to give structure to this question. That's what the Obama memo should have been discussing, not a bunch of completely inappropriate doctrine of criminal procedure. If I were to make the effort I would say that non-state actors trigger the right of self-defense when: (1) they are engaged in acts that would trigger the right of self-defense if they were state actors and/or legal combatants and (2) they are as a jurisdictional or practical matter beyond the reach of law enforcement (as when sanctioned by a state or in the territory of a state that has no obligation to extradite or no practical willingness and ability to do so in response to US demand). I happen to think that about covers it, but with enough serious thought devoted to the question, there may well be better answers. The shame is that we have not made a serious effort to address the question. There is yet another question, drawing the line between self-defense and pre-emptive war. But that is not a question that arises peculiarly with respect to non-state actors. It is also not a question that we are incapable of answering responsibly and within the law of war. We just cannot be bothered because the right wants to make war whenever it thinks it in our national interest thereby treating the war crime of aggression as if it did not exist. But it does.
- roidubouloi
February 6, 2013 at 11:00am
The problem is not that this policy inevitably means that the United States will soon start targeting its own citizens within its own borders. Of course it will. The problem is that when the United States starts killing its own citizens within its own borders at will, without a trial, and for no reason, Americans will have nowhere to run. Because by using drones so recklessly overseas, the United States has deprived Americans of any safe harbour. Americans have difficulty understanding the depth of the global animus that now exists towards it, because of policies like this. The fact remains, there are real world consequences for real world wrong-doing, no matter who you are or where you live. Just as America considers that it has a right to kill at will regardless of international boundaries, so other nations will consider their rights to kill Americans regardless of international boundaries. Which raises the question of the what the ultimate purpose of all this drone warfare ever really was. Because it certainly doesn't seem to have made Americans any safer, does it.
- fos
February 6, 2013 at 8:42pm
A little guidance as to why the United States would start killing its own citizens within its own borders at will and without reason (seriously?) would be helpful, Fos, in distinguishing your answer from sheer fantasy. It seems to me you want to make a point, but what that point is gets somewhat grotesquely disconnected from reality -- to the best of my knowledge the US has never claimed that it can "kill at will" regardless of international boundaries, and if you have evidence to the contrary I'd be interested to hear it out.
- ironyroad
February 6, 2013 at 9:37pm
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