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Mistaking Absolutism for Principle

February 7, 2013 Leave a comment

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[Tom Tomorrow, March 2012]

Mistaking Absolutism for Principle: Killing US Citizens Without Trial

In his inaugural address two weeks ago, President Obama declared:

That is our generation’s task – to make these words, these rights, these values – of Life, and Liberty, and the Pursuit of Happiness – real for every American. Being true to our founding documents does not require us to agree on every contour of life; it does not mean we all define liberty in exactly the same way, or follow the same precise path to happiness. Progress does not compel us to settle centuries-long debates about the role of government for all time – but it does require us to act in our time.

For now decisions are upon us, and we cannot afford delay. We cannot mistake absolutism for principle.

Eloquent words, worthy of a historic, transformative president, which he may well be. Yet, how does he reconcile these words with the drone warfare he has championed?

As has been widely publicized this week, NBC revealed a Department of Justice White Paper on Monday that “sets forth a legal framework for considering the circumstances in which the U.S. government could use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen.” The principal finding, as reported by Charlie Savage and Scott Shane in their NYT coverage, is that

Obama administration lawyers have asserted that it would be lawful to kill a United States citizen if “an informed, high-level official” of the government decided that the target was a ranking figure in Al Qaeda who posed “an imminent threat of violent attack against the United States” and if his capture was not feasible.

[snip]

It adopts an elastic definition of an “imminent” threat, saying it is not necessary for a specific attack to be in process when a target is found if the target is generally engaged in terrorist activities aimed at the United States. And it asserts that courts should not play a role in reviewing or restraining such decisions.

The white paper states that “judicial enforcement of such orders would require the court to supervise inherently predictive judgments by the president and his national security advisers as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.”

No courts. Judgment left to the president. Isn’t that absolutism?

Let’s turn to David Cole, law professor, expert on legal issues of the war on terror, and far more knowledgable observer than I am, writing yesterday in the New York Review of Books:

Perhaps the most disturbing feature of the paper is how it interprets the criteria of “imminence” and “feasibility of capture.” It argues correctly that, under the international legal doctrine of self-defense, lethal force is justified in response to an imminent threat of attack upon the United States. But it then defines “imminence” so broadly that it effectively eliminates the requirement altogether. There need be no showing, the paper claims, that an attack will “take place in the immediate future.” Instead, it coins what it euphemistically calls a “broader concept of imminence.” On this view, an al-Qaeda leader by definition poses an imminent threat, no matter what he is doing—because al-Qaeda is continually plotting attacks against the United States, will undertake them whenever it can do so, and we may not be aware of all such plots. In such a case, all that is required is a “window of opportunity,” not an immediate threat.

This reasoning directly contradicts the central purpose of the “imminence” requirement—to ensure that lethal force is used only as a last resort. If there is no evidence of an immediately pending attack, it is possible that some alternative way of countering the threat—in particular, by capture—may become available. And if so, then killing the suspect is neither necessary nor legal under domestic or international law. Is it any coincidence that the Obama administration has killed hundreds of suspected terrorists with drones outside Afghanistan, but captured almost none?

The white paper properly acknowledges that killing in self-defense is appropriate only where capture is not feasible. But it fails to address the central question posed by drones in this regard: Because drones permit the US to kill without risking any American life, and a capture operation will always incur some risk, does the availability of drones change the feasibility criterion? It probably should not, but it is hard to believe, again given the administration’s record of hundreds of kills and virtually no captures, that it has not.

At Esquire, Charles Pierce opened his commentary on the latest drone news with the following thoughts on war powers:

It should come as a surprise to nobody any more how quickly and how easily the institutions of a democratic republic can transform themselves under the spell of the conjuring words of the national-security state. It was the dark force implicit in self-government because self-government depended upon human beings, who are easily terrified by every rustling in the bushes and every branch against the window. It was the dark force dreaded most by the authors of the Constitution, because they knew what people were like, and they knew how deeply embedded was the need for something like a king even among the people who’d just booted one off the continent. They feared it even worse than they feared theocracy. So they did what they could to keep it in check. They lodged the war powers in the national legislature, rather than in the executive branch. They lodged the power to pay for a war in the same place, because they knew what a single national leader could do with both the public purse and an army at his disposal.

Pierce then turns to James Madison’s 1793 words:

In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man; not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasures are to be unlocked; and it is the executive hand which is to dispense them. In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace.

President Obama, 2009 recipient of the Nobel Peace Prize, seems not to have taken these words to heart.

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Categories: Law, Politics, War

Change We Can Believe In, Finale

February 7, 2013 Leave a comment

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Change We Can Believe In: The Rule of Law

A month ago, I wrote the 37th post in my Change We Can Believe In series, devoting it to President Obama’s signing of a five-year extension to the Foreign Intelligence Surveillance Act. Once again, he had failed to follow through on the commitment he had expressed in his presidential campaign to the rule of law, this being the principal theme of the series.

Several Change posts have focused on Obama’s use of drone warfare. I hoped to have another one ready to go three weeks ago, but didn’t complete it. Then came Obama’s second inaugural address. Remember this stirring passage?

We, the people, declare today that the most evident of truths – that all of us are created equal – is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great Mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth.

It is now our generation’s task to carry on what those pioneers began. For our journey is not complete until our wives, our mothers, and daughters can earn a living equal to their efforts. Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law – for if we are truly created equal, then surely the love we commit to one another must be equal as well. Our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote. Our journey is not complete until we find a better way to welcome the striving, hopeful immigrants who still see America as a land of opportunity; until bright young students and engineers are enlisted in our workforce rather than expelled from our country. Our journey is not complete until all our children, from the streets of Detroit to the hills of Appalachia to the quiet lanes of Newtown, know that they are cared for, and cherished, and always safe from harm.

That is our generation’s task – to make these words, these rights, these values – of Life, and Liberty, and the Pursuit of Happiness – real for every American. Being true to our founding documents does not require us to agree on every contour of life; it does not mean we all define liberty in exactly the same way, or follow the same precise path to happiness. Progress does not compel us to settle centuries-long debates about the role of government for all time – but it does require us to act in our time.

For now decisions are upon us, and we cannot afford delay. We cannot mistake absolutism for principle, or substitute spectacle for politics, or treat name-calling as reasoned debate. We must act, we must act knowing that our work will be imperfect. We must act, knowing that today’s victories will be only partial, and that it will be up to those who stand here in four years, and forty years, and four hundred years hence to advance the timeless spirit once conferred to us in a spare Philadelphia hall.

I didn’t want to appear churlish by taking Obama to task in the afterglow of these words. So I have held my tongue, leaving the latest drone post unfinished.

Now, a little over two weeks later, I’ve decided to put this series of posts to bed. With the start of Obama’s second term, it’s time to introduce a new theme.

What should the theme be? Bear with me, please, as I search for the right one. I may try several. Coming next: my initial experiment.

Categories: Law, Politics