Thursday, March 08, 2012

Left Side of the Aisle #47 - Part 4

Eric Holder says PHC* can order you to be killed

So last week Attorney General Eric Holder gave a speech at Northwestern University to explain why it is legal for the president to issue an order to have you killed.

This goes back, of course, to the case of Anwar al-Awlaki, a natural-born American citizen living in Yemen. He was assassinated in drone-attack this past September. He was killed amid US government accusations that he was involved with al-Qaeda and had been in contact with some 9/11 hijackers and the so-called "Underwear Bomber," Umar Farouk Abdulmutallab - but no proof or any sort, no evidence, was offered and there certainly was nothing that any normal person would regard as the due process that if nothing else would seem would be his due as an American citizen.

The administration still has not released the memo containing the claimed legal grounds justifying the attack, despite requests from members of Congress and FOIA requests from the ACLU and the New York Times. But Holder had a go at offering what might be called an unclassified version.

And what was the argument? In sum total, it was "It's legal because we say it is." Or, as Richard Nixon once said, "When the president does it, it's legal."

In fact, contrary to what you might have thought, according to the amazing Mr. H the idea of "due process" does not mean that anyone can offer a check on this executive power to execute executions, does not mean the White House has to show its evidence to anyone, does not mean that anyone outside the president's circle need be involved at any point.

“Due process and judicial process are not one and the same, particularly when it comes to national security,” Holder said. “The Constitution guarantees due process, not judicial process.” You could almost hear the echo effect being raised as he intoned the phrase "national security."

So what does constitute due process, according to Mr. H? When the Executive Branch, meaning the president - again alone - decides the accused is guilty.

In the case of national security, when the prosecution decides you are guilty, that is the end of the matter. No need to present evidence, no need for any sort of outside process, no need for any independent judgment, no need for anything that could in any way be called a trial, even a trial in the court of public opinion. There simply is nothing to restrain the president either in making that declaration of guilt or acting on it in the way he or she prefers. The president is the prosecutor, the judge, the jury, and the executioner all in one.

Oh, but surely I'm being unfair, because Holder insisted there is a system of “robust oversight” - which consists largely of telling some selected members of Congress what has been decided or done after it already has been decided or done. I'm reminded of the fact that there is another meaning to the word "oversight."

Still, you have to understaaaand, he pleaded. He quoted JFK's line about “defending freedom in its hour of maximum danger” and declared we are again in "an hour of danger." "We are a nation at war" and "Where national security operations are at stake, due process takes into account the realities of combat."

But the "war" here is one without a specific target - "terrorism" hardly constitutes a specific target - and without geographic limit, and with no way to determine what constitutes "victory." It is literally a war without end. It's a war in no particular place, it's everywhere all the time, a war then in which almost anything can be justified as "combat," as "acts of war," as occurring "on the battlefield" and thus beyond the reach of any law other than the so-called "law" of war.

More Holder: "We must also recognize that there are instances where our government has the clear authority - and, I would argue, the responsibility - to defend the United States through the appropriate and lawful use of lethal force.”

Now, I doubt any non-pacifist would disagree that the use of lethal force is sometimes necessary for legitimate national self-defense. The question is, who decides what is "appropriate" and when it's appropriate? Who decides and how do you decide who decides?

The point here is that by “government,” Holder means the president, alone, whoever that is. The president is, quite literally, the decider over life and death. As one commentator said, if the vice-president disagrees, tough. Shoulda been top of the ticket. If the Chief Justice of the Supreme Court thinks preaching against the United States is not a capital offense, again, tough. Shoulda taken up politics instead of the law. If the Congress objects that the president’s “surgical strikes” kill too many random men, women, and children, well, they can cry me a river. If the United Nations special rapporteur on extrajudicial killings expresses concern, well, who cares about him, anyway?

In fact, it's not even desirable to get outside input because time is of the essence! We must act now! Because, according to Holder, this authority to order murder will only be used against someone who is an "imminent threat." Which could have been a little reassuring if it weren't for the fact that Holder also said that "the evaluation of whether an individual presents an 'imminent threat' incorporates considerations of the relevant window of opportunity to act."

Which if it means anything at all means that being an "imminent threat" does not require that you are about to launch an attack, it does not even require that you are planning anything, it requires only that a-we think you will be planning something sometime in the future and b-we have an opening to get you now.

In fact, Holder said as much: "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."

When George Bush said stuff like that, we screamed about the dangers of pre-emptive war. In fact, Shrub's team did say stuff like that - remember I think it was Condoleeza Rice justifying the coming invasion of Iraq on the grounds that "we can't wait for the final proof to come in the form of a mushroom cloud?" Holder's language is more nuanced, but the meaning is the same: We don't need no stinking proof.

So that is the Obama administration's position: Not only do we not need to show proof, we don't even need to have proof. All we have to do is believe. And our belief is all the legal justification that we need to kill you.

But don't worry, if it turns out later we were wrong or that we killed a whole lot of innocent people along with you, we'll write a personal note of apology.

And speaking of apologies, I offer one to John Yoo.

Footnote: Here’s one more quote:

“As president, I will close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists … Our Constitution works. We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary.”

As I expect you guessed, those were the words of 2008 presidential candidate Barack Obama. Well, Guantanamo is still open, the military commissions are still going, and we have ignored the Geneva conventions. The stubborn rulers with their arbitrary justice are not so far distant in either space or time as we would like to tell ourselves.

*PHC = President Hopey-Changey



Marc McDonald said...

Good article, I enjoyed reading it.
The thing that bothers me the most about using drone attacks to kill people overseas isn't that it's a cowardly way to kill people. It's that I simply don't believe the people being killed are "terrorists."
I mean, who says they're terrorists? The CIA?
Yeah right.
We all know how accurate the CIA's intel has been over the years. I mean, these are the geniuses who missed 9/11. These are the geniuses who signed off on Bush's war. These are the geniuses who couldn't find Bin Laden for a decade. (I'm sure Bin Laden was absolutely amazed that he got to live 10 years after 9/11).
The CIA has been wrong on so many things over the years that I simply don't trust them on anything. These are the people who were caught unawares by momentous world-changing events, from the Iranian Revolution to the fall of the Soviet Union.
Actually, if the CIA had ever actually carried out its supposed mission (to "protect" America's security, rather than go around the world staging coups and overthrowing democratically elected governments), then maybe the CIA would be better at their job.
Anyone who thinks the CIA is anything other than an incompetent bunch of idiots has been reading too many goddamn Tom Clancy novels.
(Oh, but defenders will say: yes, the CIA HAS had successes---but they've all been kept Top Secret).
To which I reply: bullshit: I simply don't believe it.
If the CIA were at all competent, then 9/11 would not have happened. Period.

LarryE said...

My own impression of the CIA (based on my own relevant experiences) is that it does a pretty good job of intelligence gathering and analysis when it is left alone to do that. But that rarely happens: Usually it is turned into a tool of foreign policy and its analysis is required to reach a predetermined conclusion.

(Did you know, for example, that a big part of the reason the Iranian revolution was not predicted was because the CIA had been ordered to not have contacts with the Iranian opposition either there or abroad because it was feared the results of such analysis would embarrass the Shah?)

The CIA's original mission was to be a central coordinator of all the US intelligence services (thus the name) and to independently analyze their data. In other words, it was intended to do what the Director of National Intelligence is supposed to do now (which shows how well the idea worked out).

If it had been left to do that instead of being quickly turned into a sort of secret army for foreign intervention and subversion, we and other people of the world - and history - would have been much better served.

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