A Debate on Targeted Killing

From a friend’s Google Buzz feed; edited only for clarity and to correct both of our typos.

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B: Link: The Vindication of Dick Cheney – Glenn Greenwald – Salon. “Obama has won the War on Terror debate — for the American Right. And they’re quite appreciative.”

Me: This isn’t entirely fair. In a lot of cases — indefinite detention — Obama walked into the Oval to find his hands tied to the wheel. He can’t release some of the prisoners, and he can’t try them, because Bush made that impossible through torture. The ripple effect of some of Bush’s errors bars Obama from their redress. Similarly, if he hasn’t won the debate yet, or brought the plan to consummation, Obama has carried water for the notion that terrorists can and should be tried in courts, not in military commissions. Where Congress has tried to stop him from doing the same, he’s erased such intrusions into executive power, which can be used for good, by signing statements.

That said, material distinctions between actually enacted policies abound. The end of torture and blacksites/rendition erases two of the very worst abuses of the Bush years. The Terror Surveillance Program operates, in a watered down form, now by statute or with Congressional consent. The distinction between the substantive programs may be minimal, but the distinction in manner of execution is vast, material, and rolls back the notion of the imperial presidency.

The list goes on. And targeted killing is justified. There, I said it.

J: <Gasp> Of American citizens?! Without trial?!

Me: That’s deeply troubling and there’s no denying it. But the one situation that I know you’re referring to is excused by the battlefield nature of the execution. The wartime paradigm doesn’t always apply — and again, Obama, unlike Bush, has not insisted that it does — but in some cases, it’s quite apt. As it is here.

Take it by analogy. You’re a sniper in World War II. Approaching Berlin, you see your old neighbor, a citizen, at the table with Hitler, planning the invasion of England. What do you do? You take the shot. You don’t commit an entire battalion to killing Hitler, but taking your neighbor alive for a trial whose outcome is a foregone conclusion. Obviously if the question is a predator strike against a citizen driving down the Merritt Parkway, different analysis. Or a citizen hanging out at a cafe in Kabul.

J: Actually, it’s far away from the battlefield. And Anwar al-Awlaki, while preaching death to Americans, hasn’t been proved to actually have killed anyone. And as for assassinating Hitler, see Executive Order 11905 5(g) “Prohibition on Assassination. No employee of the United States Government shall engage in, or conspire to engage in, political assassination” updated to Executive Order 12333 2.11 “Prohibition on Assassination. No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”

If the President wants to change the rules, he should draft a new executive order.

Me: Eh. Those executive orders have for a long time been subordinated to the sovereign, UN-recognized right of self-defense. There are ancient OLC memos I can pull if you really want it, but basically, since about the time the order was drafted, the US has construed these orders so as to preserve assassination in the name of self defense. That’s to say, it’s not original to Obama, or Bush, or Clinton, or the earlier Bush, or Reagan… and unreasonable to think he’d change it.

J: Everything I can find says our ban on assassination remains in effect today. The official line on bombing the palaces of Qaddafi and Saddam are that we were targeting command and control centers, not the actual leaders.

Me: You have to understand the way the executive branch works, in its own twilight world of quasi-law. And, the Parks memo [construing killing for self-defense as not assassination, and therefore not banned. –Ed.]

J: The right to issue executive orders isn’t explicitly granted in the Constitution, so I’m guessing your argument is that the President can do whatever he pleases, regardless of what executive orders are already “in effect”? I mean, all he has to do is issue another one.

Me: The lack of a textual basis for executive orders is irrelevant; but it stems from the vesting clause (“The executive Power shall be vested in a President of the United States of America”) and the take-care clause (“he shall take Care that the Laws be faithfully executed”), and is the way the President states a policy preference for his officers, appointees, and the executive branch, as he’s entitled to do. The Parks memorandum is a construction of the executive order, not a supercession of the same, one upon which the President is entitled to rely, making repeal unnecessary.

J: So Hitler is an okay target because he wears a uniform, and Anwar al-Awlaki is okay because he’s a terrorist. But al-Awlaki is still an American citizen.

Me: Sure. But his designation as an agent of a foreign power, working against the United States, was ratified by the National Security Council, the President, the Treasury, and buttressed by foreign decisions, making him a military enemy whose execution may be carried out in line with the 2001 AUMF.

I’m not saying it’s an ideal situation. Just that there’s literally no other way to handle it. Did you see the West Wing season 4 episodes about the Shareef assassination?

J: Yeah, that’s exactly what I was thinking about, and it was decided that bumping off Shareef was illegal (mostly) but in the interest of the greater good, and so was kept secret.

Still, it’s pretty chilling that our government could designate any of us terrorists and then direct our killing (provided we were overseas) without judge, jury, or trial.

Me: Oh, it’s probably illegal under international law (which I think was the conclusion), no doubt :). I think it’s square and good under U.S. law, and in any event, no-one but Al-Awlaki has standing to challenge it.

But yeah, not a great thing, and a sad commentary on the world, but it’s the least bad solution. I’m comfortable that the Obama administration has minimized rather than maximized (like Bush) these circumstances where, really, we have to place our complete trust in the executive.

J: Well, not even Bush authorized assassinating American citizens. And Obama has dramatically increased drone attacks in Pakistan (though, with the private tacit permission by the Pakistani government, which continues to publicly condemn them).

What’s an example of the current administration minimizing circumstances where we have to place complete trust in the executive?

Me: To be fair, nor did Bush ever have cause to seek assassination of citizens. He didn’t confront someone like Al-Awliki. This is a unique problem. And, I have no problem with Pakistani Predator strikes, either. Especially with Pakistan’s consent, that IS the battlefield.

Well, for an example, most clearly, look to the Terror Surveillance Program. Kicking the issue to Congressional oversight is a big move, and a big rebuke to Bush.

J: He did confront al-Awliki under Bush, and the FBI decided he wasn’t actually a threat.

Me: Threats change! This one has. And refusal to re-start the secret side of the program, as preferred by Bush = letting it remain with Congress.

B: An executive order to kill an american citizen without due process makes us no better than Iran or North Korea. In spite of your insistence otherwise, this is not in the context of the battlefield–an executive order would hardly be necessary for that.

I’m saddened you’re going to back Obama on this one. As for the Pakistani Predator strikes, they have been without Pakistani consent, which has been the point.

Obama is certainly an improvement over Bush, but in the area of civil rights it’s such a small fraction of what was promised which was itself a small fraction of what should happen. Unless I see a serious change on these issues I will not be voting for Obama in the future.

Of course, Senator Obama basically voted for the Terror Surveillance Program once he’d wrapped up the Democratic nomination, and the President’s administration has continued Bush’s defense of it in the courts.

I must have missed with Obama kicked the issue to Congress…when was that?

A: I’m not backing Obama. I’m backing the way the rule of law has built up around national security structures, in its least bad and most tenable form. It’s ugly, sure, but what is the alternative?

B: I’m not interested in whether it’s legal or not. It seems like a blatant due process violation to me, but that’s not the point. The alternative is that the Obama administration not issue such despicable orders.

A: B, of course, “not issue such … orders” is not an answer to the larger question. That’s the point. This is ugly, but the other plan is, “wait and see.” That might work with Al-Awliki. But will it always work?

B: Yes, it will always work. I would much rather die in a terrorist attack from an American citizen than to live in a world where said citizen was pre-emptively murdered by his government without due process.

Apparently a lot of you have no idea what it means to live in a free country.

N: Says the guy that wants free government managed healthcare. [This guy is promptly ignored, thankfully. – Ed.]

A: And you may have no idea what it means to live in the 21st century :-/. There is no freedom to, by cover of citizenship, defect, support foreign enemies, and then expect continued safety.

B: There is a freedom to not be executed by your government without due process.

A: The former subsumes the latter; or, rather, the two are not in conflict, and Al-Awliki’s case is controlled only by my principle.

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26 comments

  1. Good stuff. I am pretty much in agreement with Ames on all of this. Now I am going to go wash my mouth out with soap.

  2. You know, I usually agree with you, but it seems to me that if you think the extrajudicial murder of American citizens and the remote-control killing of Pakistanis are the “least bad” solution (to what problem, exactly?), you’re not thinking imaginatively enough.

  3. I really don’t see the problem with drone attacks in Pakistan. Is it illegal for the US to kill Pakistanis? Not if US law says it isn’t. Is Pakistan doing anything to stop the US? No. So… where’s the problem? That it’s “remote-control”?

    1. I would have thought it obvious that the problem was the “killing people” part. The remote-control part just makes the US look even more like the Evil Empire than we already did, and let’s face it, there’s no better way to inspire a Rebel Alliance than to act like Palpatine.

      Of course, I’m at least half-convinced you’re a Poe, so perhaps this comment is preaching to the choir.

      1. Had to look up what a Poe is. I’m not one. As for the “killing people” part, I don’t think there’s anything wrong with that considering they’ve been determined to be enemies. Enemies are for killing..

        1. Three questions:
          1. Who determines “enemy” status?
          2. Why do you trust that agent?
          3. Is it all enemies that deserve death? (That’s how I read your “enemies are for killing”; please let me know if that wasn’t what you meant.)

          1. 3. All enemies deserve death, however sometimes winning them over or capturing/enslaving them is both practical and more beneficial.
            2. Depends on the agent’s track record, qualifications, motives – same reasons you do or don’t trust anybody.
            1. Depends on whose enemy you’re talking about. In the relevant case, I believe that’s the US government.

            1. What is it about enemies that makes them deserve death? That’s a much stronger position than any of the standard stances here, which usually go only so far as to say that killing an enemy is, in some cases, not blameworthy.

              Also, more generally, what moral theory are you using to assign desert?

              1. There’s no way to answer your question non-tautologically. Enemy means one you need to kill. It’s implicit in the very idea of an enemy that you need to kill them. Whatever makes them deserve death is whatever made them into an enemy.

                1. Perhaps it would be helpful for Erik to know that your definitions in general of “who deserve death” are somewhat broader than usual?

                2. It seems to me that this position, if it’s to be coherent, must rely on either a very strong relativism or a very strong chauvanism. That is to say: If “being an enemy” means “deserving of death”, then either both sides in every conflict deserve death — which is very strong relativism — or only one side counts as “enemy”, which is a very weird situation. Which do you prefer? Or, is there some possibility I’ve missed?

  4. […] This post was mentioned on Twitter by Sylvia Roundtree, Dana Exner and John Macy, affiliatebuck10. affiliatebuck10 said: A Debate on Targeted Killing « Submitted to a Candid World http://bit.ly/hYzhDd […]

  5. So how does that not violate the Fifth Amendment? Depriving someone of life without due process?

  6. Courts recognize that the Fifth Amendment applies abroad (Republican talking points notwithstanding), but that its application is mediated by the needs of the scenario. Here, the military need to off the guy controls. That, at least, is the assertion.

    1. Alternatively, as at one Justice has pointed out, “due process” is just the tautologic-but-otherwise-undefined “process to which you’re due”. And since nothing in the CT explicitly states the process to which an accused terrorist abroad is due is more than “none”, at most you’re talking about a 9th Amendment right – and the courts unfortunately don’t recognize Substantive 9th Amendment Rights. Well, besides contraception, sexpartnerchoice, and abortion, and even those are really damn curtailed (see, for example, the restricted contraceptive access for women under 18, or the continued illegality of prostitution).

      1. Surely no one is a “terrorist” until actually convicted as such?

        1. Oh, I agree with you and I disagree with you. Part of it depends on whether the trial would be a formality or not. After all, the reason summary execution of people caught red-handed is bad isn’t because they aren’t guilty, but because you can’t trust the cops. Same thing kind of applies here.

          And that said, I don’t think a person has to be a convicted terrorist to be a legitimate military target.

          1. No, but my point is that if you can’t define someone as a terrorist without going through due process in the first place, arguing that terrorists should have fewer rights to due process is really an empty statement.

            And I still think it’s questionable whether criminals, including terrorists, should even be military targets in the first place. It used to be that military targets were all about people in uniforms with tanks shooting at each other and such, or at most some sort of guerilla force. But maybe I’m just being old-fashioned.

            1. Don’t terrorists sort of rely on arbitrary ‘rules of war’ to facilitate a lot of their actions?

            2. I’m not sure I understand the question. Do you have any examples?

              1. If we can’t use the military to pursue terrorists, then what? The FBI? Doesn’t tha limit our ability to pursue them?

              2. Sure. But a constitutional democracy puts limitations on the government all the time. It can’t use the military for domestic law enforcement either. The Fourth and the Fifth Amendments limit the ability to investigate, making it harder to catch criminals. I don’t see any compelling reason why terrorists as such necessarily should be different.

                Of course, it does get more murky when the terrorists are also armed rebels, as is the case e.g. in Yemen. Then the question becomes, do you order a drone strike on al-Awliki because he’s an alleged terrorist (not legitimate) or because he’s a rebel (legitimate)?

                1. The problem is who best to pursue international criminals across borders if we can’t use the military? I’d be fine with some kind of government-sanctioned hunter-killer group (yeah, I read too many spy novels). In lieu of that the military seems like the best option.

                2. We already have Interpol, extensive co-operation between national law enforcement and intelligence, and networks of international extradition agreements. Those suffice for the majority of cases.

                  Military intervention is only necessary when the local government is either non-existent or friendly to the criminals, and in those cases the problem goes beyond the criminality, anyway.

  7. Yes, but where is the military need? It’s possible he’s engaged in planning terrorist attacks, but why is that a military threat, as opposed to a criminal one? Isn’t there a dangerous muddling of definitions going on here?

  8. […] with targeted killing, even of a U.S. citizen. We’ve covered targeted killings here before. The power derives from the sovereign national right of self-defense, and trumps executive orders […]

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