The Obama administration is entering the final year of its first term in office. Over the course of four years this administration has changed course on a variety of issues. From keeping the international stain known as the Guantanamo prison continuously open, to refusing to prosecute the crimes committed by top officials of the previous administration, to out-and-out assassinations of American citizens abroad with no due process, the central theme of the Obama administration's foreign policy is to tone down the rhetoric, make some paeans to the rule of law, but keep in place many of the core values of the Bush administration. The general nature of covering up crimes committed in the past is not a new feature of the federal government, but it has been taken to new extremes under the current administration.
Despite this, the administration has no problem issuing decrees anonymously to the press or through its own cabinet members about how it is conducting itself firmly within the rule of law and that absolutely no judicial oversight is needed when it comes to certain aspects of the “War on Terror.” An example of the latter would be Attorney General Eric Holder’s recent speech at Northwestern University. The speech is interesting in that it attempts to tie together the administration’s recent illegal activities all under the auspice of “national security.” This article won’t cover the entirety of the speech, but will focus mainly on the Attorney General’s comments on the illegal assassination of Anwar al-Awlaki (despite the fact that the man’s name is never mentioned) and how it somehow fits into a normal definition of the rule of law. However, there are a few other parts of the speech worth looking over first. Holder opens with a reference President Obama’s speech on these issues several years prior:
My judgment is shared by senior national security officials across the government. As the President reminded us in 2009, at the National Archives where our founding documents are housed, “[w]e uphold our most cherished values not only because doing so is right, but because it strengthens our country and it keeps us safe. Time and again, our values have been our best national security asset.” Our history proves this. We do not have to choose between security and liberty – and we will not.
This was the infamous speech by President Obama that began to codify into American law the notion that there is a certain class of Evil Terrorist that should be held indefinitely until the “war” is completed, no matter how long into the future that may be. It isn’t exactly a surprise that Attorney General Holder would open referencing this particular part of his administration’s history, but it’s worth noting. Holder goes on to discuss the FISA court and the legal underpinnings of the administration’s decision to try certain terror suspects in military commissions. The Attorney General does make some valid points about the federal court system and its ability to try terrorist suspects fully within the rule of law in this country. Unfortunately things go off the rails when the AG attempts to justify the administration’s about-face on using military commissions. This is mainly because Holder plants his case firmly in the Bush-era idea that only the executive can decide which terrorist is evil enough to be tried via commission:
Such decisions about how to prosecute suspected terrorists are core Executive Branch functions. In each case, prosecutors and counterterrorism professionals across the government conduct an intensive review of case-specific facts designed to determine which avenue of prosecution to pursue.
Holder also uses this lame excuse for why President Obama recently signed the National Defense Authorization Act, which codifies the military detention of American citizens into law. All of these issues are of grave importance, but are not the focus here. This piece will now turn to the defining attributes of the AG’s speech: that of the legal authority of the executive branch of the government to assassinate American citizens abroad.
Holder begins his argument with the dubious legal assertion that this type of activity is allowed under US law because of the Authorization of Military Force created by the Congress shortly after the September 11th attacks:
This principle has long been established under both U.S. and international law. In response to the attacks perpetrated – and the continuing threat posed – by al Qaeda, the Taliban, and associated forces, Congress has authorized the President to use all necessary and appropriate force against those groups. Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law. The Constitution empowers the President to protect the nation from any imminent threat of violent attack. And international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.
This buys into the notion that the 9/11 attacks changed the entire world so much as to turn it into a battlefield. This idea was something that should have gone away with the Bush administration, yet it thrives in the current legal environment under an increasingly authoritarian President Obama. Holder then jumps from this assertion to one of even greater magnitude. That would be the suggestion that some of the many countries the US is currently in through covert operations have in fact given “consent:”
This does not mean that we can use military force whenever or wherever we want. International legal principles, including respect for another nation’s sovereignty, constrain our ability to act unilaterally. But the use of force in foreign territory would be consistent with these international legal principles if conducted, for example, with the consent of the nation involved – or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.
It is remarkable that the Attorney General of the United States would have the gall to say such a thing not even a year after one of the most illegal invasions of sovereignty in quite some time: the storming and assassination of Osama bin Laden in Pakistan. Yet Holder continues on down the “battlefield” rabbit hole, using a technique that was quite comfortable to the lawyers of the Bush Justice Department. That would be using completely separate and different war environments to argue for the extreme policies of the executive today:
Furthermore, it is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces. This is not a novel concept. In fact, during World War II, the United States tracked the plane flying Admiral Isoroku Yamamoto – the commander of Japanese forces in the attack on Pearl Harbor and the Battle of Midway – and shot it down specifically because he was on board. As I explained to the Senate Judiciary Committee following the operation that killed Osama bin Laden, the same rules apply today.
Absurd differences in place and time (Admiral Yamamoto is somehow equal to Anwar al-Awlaki?) aside, Holder’s argument has its genesis firmly within the Bush administration’s excessive interpretations of what sort of leniency they allowed the executive branch by the terrorist attacks on 9/11. The Attorney General also makes it plain that he does not consider these actions (as Glenn Greenwald and others have) as “assassinations:”
Some have called such operations “assassinations.” They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.
Of course, one who would seek to justify such egregious actions on behalf of the government would probably not wish to use such a term; it might call up an earlier era in which the CIA was able to murder heads of state at will. The AG perhaps wishes to remind everyone that the US has not quite degenerated to that state yet. Holder goes on to state that he “cannot discuss or confirm any particular program or operation,” but the jig is up by this point. He is obviously referring to the United States' assassination –via-drone of Anwar al-Awalki and the subsequent murder of his son in Yemen. Holder lays out three major reasons for why such drastic action must be taken by the United States. First is that the target must be proven an “imminent threat.” It is here that Holder leaves the rule of law behind and enters into the realm of “pre-crime:”
As we learned on 9/11, al Qaeda has demonstrated the ability to strike with little or no notice – and to cause devastating casualties. Its leaders are continually planning attacks against the United States, and they do not behave like a traditional military – wearing uniforms, carrying arms openly, or massing forces in preparation for an attack. Given these facts, the Constitution does not require the President to delay action until some theoretical end-stage of planning – when the precise time, place, and manner of an attack become clear. Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed.
First and foremost, the Attorney General’s declaration that the 9/11 attacks had “little or no notice” is laughable on its face, given the vast amount of data the US government had prior to that assault. However, it is the assertion that the president must act against such persons abroad before they even commit any crime which is most chilling. One cannot argue on the one hand, as Holder does, that federal courts are perfectly capable of handling terrorist suspects but also argue that the president alone has the authority to simply eliminate an American citizen from the battlefield because of what he or she may or may not do in the future. To make such an argument is to enter the realm of science fiction. Holder uses this specious logic to conclude:
Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack. In that case, our government has the clear authority to defend the United States with lethal force.
And what are the parameters of such “lethal force?” Holder helpfully lays these out as well:
Of course, any such use of lethal force by the United States will comply with the four fundamental law of war principles governing the use of force. The principle of necessity requires that the target have definite military value. The principle of distinction requires that only lawful targets – such as combatants, civilians directly participating in hostilities, and military objectives – may be targeted intentionally. Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage. Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering.
The Justice Department could easily lay out its case for each of these issues. The fact that it has not only highlights the suggestion that the government knows what it’s doing with these targeted killings is in fact illegal. To date, the federal government has not given one shred of evidence as to Awlaki’s “military value.” As to the other methodology, one must only wonder whether or not a sixteen-year-old boy is considered “collateral damage” or “unnecessary suffering” to the government pulling the trigger. Finally the speech arrives at the sentences that seem to have received the most press in the last few days:
Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.
This, in a finely contrived nutshell, is the Obama foreign policy in action. Simple ideas such as “due process” for every American citizen, slowly eroded over the last decade, are simply not worth the effort to try and work for in this age of guilt-before-action. AG Holder stresses that the executive is held accountable via “checks and balances” for its actions, and yet not one piece of evidence has emerged, either through leak to the press or otherwise, that these actions had any sort of legal merit. This is the core legacy of the Obama administration: continue with most of the basic civil liberties erosions of the Bush administration, but make a lot of noise about the “rule of law” so that most citizens will buy it. These are bad people, after all, and they deserve to die. That’s about all the thought process the Justice Department thinks Americans need to decide whether or not this action is legal or even warranted. Notice that there is not a single mention within this entire speech of what may have driven someone like Awlaki to his alleged actions. Not one single mention of the countless illegal acts perpetrated by America in its disastrous “War on Terror” that might account for someone like Awlaki to begin to think that perhaps his entire religion might be under attack. Not a single mention of the brutal death of his son in Yemen, the result of which was the immediate antagonization of entire swaths of that country to the US and its supposed fealty to the “rule of law.” These things, amazingly bereft in the Attorney Generals speech, aren’t easy to compartmentalize into the twisted notions of law and order that have been disrupted in the last ten years. These things, which may well do more to explain the actions of American citizens such as Awlaki to want to do harm to his own country, are strangely absent and not to be thought about. It is much easier to simply decry the man as a “terrorist” and be done with it. That is the sad legacy of Bush to Obama, and one that all Americans must come to terms with.
UPDATE: The always insightful Glenn Greenwald has many great thoughts on this matter and all the legal ramfications it entails. Here's a snippet:
To recap Barack Obama’s view: it is a form of “terror” for someone to be detained “without even getting one chance to prove their innocence,” but it is good and noble for them to be executed under the same circumstances. To recap Eric Holder’s view: we must not accept when the Bush administration says “just trust us” when it comes to spying on the communications of accused Terrorists, but we must accept when the Obama administration says “just trust us” when it comes to targeting our fellow citizens for execution. As it turns out, it’s not 9/11/01 that Changed Everything. It’s 1/20/09.