Unpacking the Ramifications of Obama’s Targeted Killing Memo

Drones

Rosa Brooks unpacks the Obama JD’s targeted killing memo: “Like many legal documents, this one does fine on its own terms, but looks a lot less satisfying when taken out of its hermetically sealed legal universe.”

Related: John Fugelsang talks with Harper’s Scott Horton and Medea Benjamin of CODEPINK about the kill memo and a possible slippery slope into domestic assassination:

Update: Via Jack Goldsmith, two different takes on the white paper — first, Jeffrey Rosen is outraged:

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. . . .

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.

And then there’s Eric Posner, who is not so outraged (and wonders what all the fuss is about):

So far, the reporting on the leaked white paper from the Justice Department about drone attacks clearly assumes that we are supposed to be outraged by the Obama administration’s legal theories, just as we were supposed to be outraged by the Bush administration’s. And outrage is being dutifully ginned up. But the memo is utterly conventional as legal analysis; its arguments could easily have been predicted. . . .

Obama and Bush administration lawyers have stretched the Constitution and traditional rules of international law to accommodate the threat posed by terrorism. Some people will say they violated the law. But given the political consensus supporting these moves within the U.S., it is more accurate to say that the law has evolved. It gives the president the discretion he needs, or at least wants, to address an amorphous threat. Let’s hope he uses that discretion wisely.

Quite the leap of faith, that (YMMV).

More from Goldsmith here and here, and from Ben “Keep Calm and Carry On Killing The Wogs” Wittes, who thinks this is all much ado about nothing.

White House Press Secretary Jay Carney On Targeted Killing: Lethal Strikes On U.S. Citizens ‘Legal,’ ‘Ethical,’ And ‘Wise’

Words fail (h/t):

A friendly reminder from TAFKAdnA:

The Obama administration claims that the secret judgment of a single “well-informed high level administration official” meets the demands of due process and is sufficient justification to kill an American citizen suspected of working with terrorists. That procedure is entirely secret. Thus it’s impossible to know which rules the administration has established to protect due process and to determine how closely those rules are followed. The government needs the approval of a judge to detain a suspected terrorist. To kill one, it need only give itself permission.

“Trust me” != due process, Mr. POTUS.

Related: Thomas P.M. Barnett:

For now, the only club whose membership can earn you such a “pre-sentence” is al-Qaeda, but how many dangerous organizations (you tell me where to put the sarcastic quotation marks on that phrase) will be added to this list in the years and decades ahead?

[...]

This is an extremely dangerous rule-set for America to be exporting around the world: threaten or scare of just plain piss off the wrong great-power government, and it reserves the right to assassinate you at will.  The quid pro quos are easy to imagine:  you, China, turn your back when we need to kill ours and . . . America can probably do the same when you take out those “protestors” (I mean, terrorists!).

I just have to ask: how does Obama lecture Netanyahu about anything at this point?

Razing the Project to Save It

by matttbastard

broadmoorpolaroid1

(Photo by Infrogmation, used under a GNU Free Documentation License)

With the advent of a new administration in Washington providing the long-beleaguered citizens of New Orleans, LA a new sense of hope (no doubt increased upon hearing that the President has promised to visit the region) it’s easy for us to forget (too easy to forget) that there are still thousands of residents still displaced from their homes, perhaps permanently.  And, if decisions like the following continue to be made (purportedly on their behalf *cough*) many will have f0rever lost what little remains:

A judge didn’t abuse his discretion when he refused to halt the demolition of four public housing complexes in New Orleans that were damaged by Hurricane Katrina, a federal appeals court has ruled.

A group of displaced public housing residents had asked U.S. District Judge Ivan Lemelle in June 2006 to block plans to demolish and redevelop the B.W. Cooper, C.J. Peete, St. Bernard and Lafitte developments. Lemelle denied their request, a ruling upheld Monday by a three-judge panel from the 5th U.S. Circuit Court of Appeals in New Orleans.

[...]

Three developments have been totally razed, while the demolition of the fourth is under way. The demolition project spawned a round of demonstrations in New Orleans, including a December 2007 melee at City Hall where police used pepper spray and stun devices to disperse a crowd of protesters.

[...]

“Numerous reports showed that the buildings were obsolete, dilapidated, and unsuitable for housing purposes,” Judge Emilio Garza wrote in the court’s 14-page opinion.

Yes, so, in order to save these projects, these people’s homes,  let’s completely raze them to the ground.  Because no buildings are so much more suitable for living in. Sorry, but, “comparable housing” is not remotely adequate (let alone, er, comparable) when “redevelopment plans leave several thousand families without access to affordable housing [emph. mine].”

Loyola University professor Bill Quigley highlights the bottom line this decision once again underscores:

“At this moment, (the 5th Circuit is) saying that the tragedy to these 5,000 families from Katrina is permanent,” Quigley said. “The fight has always been whether these 5,000 families get to come back to some sort of public housing in New Orleans. The position of the government has been that they don’t.”

The dizzy counterspin from HUD’s spokesmonkey is particularly nauseating:

“This ruling is a win for the families who will return to new, socially and economically integrated neighborhoods, and it’s a win for the city of New Orleans because of the affordable housing component of each of the new developments.”

Yes, well, what about those families who, um, won’t return to ‘socially and economically integrated neighbourhoods’? How can losing everything all over again, having their dreams razed along with their fucking homes even begin to count as a victory?  Even George W. Bush wouldn’t have the fucking nerve to hastily throw up a ‘Mission Accomplished’ banner behind this one.

Unfortunately there isn’t much one can do to affect court decisions.  But one can pressure Congress to allocate desperately needed funding for NOLA and draw attention to a situation that has been allowed to fester below the radar for far too long. Sarah J notes that “Senators Mary Landrieu and David Vitter have requested funding for “more than $6 billion in coastal restoration and levee construction projects in an economic stimulus bill now moving through Congress”“, making it even more important that Americans contact their Congresscritters and demand that, as the US moves towards revitalizing delapidated national infrastructure, the people of NOLA are not forgotten ever again by their government, their fellow citizens.

As I wrote in comments @ Alterdestiny:

“[W]e… need to purge the guilt and start doing something proactive. Poppy Z. Brite’s powerful 2006 Banned Books Night speech is even more pertinent, more vital, today:

If you live here, stay and give it all you can. If you live elsewhere, please don’t let people forget us. Don’t let your government forget us. Tell them to put money into wetlands restoration, to give us the levees we were told we already had, to rebuild the homes and businesses destroyed by their lying negligence. Tell them we are as valuable as The Adventures of Huckleberry Finn or A Confederacy of Dunces or A Streetcar Named Desire. Tell them those three banned and cherished books would never have existed without us. Tell them we will never die easy, and if we do die, we will be the most haunted place in the world.

NOLA has not yet been completely “banned”, as Brite devastatingly characterized it, but it won’t be fully re-enfranchised unless we increase the pressure on Washington.

Je me souviens.

(Major h/t and heartfelt thanks to Sarah J for links and inspiration.)

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‘A Place of Jarring Juxtapositions’

by matttbastard

Toronto Star national security reporter Michelle Shephard, who, over the course of her career, has visited the detention facility at sunny Guantanamo Bay, Cuba fifteen times, gives an essential summation today of what she calls “a place of jarring juxtapositions”:

Suicides of the detainees became “asymmetric warfare” and force-feeding prisoners on hunger strikes was “assisted feeding.” Captives did not have “interrogations” but had “reservations.” And signs posted on the road to the camps listed the “Value of the Week” as “Pride” or “Respect” even as Washington debated the definition of torture.

[...]Journalists have been the public’s eyes and ears at the base for the last seven years and the ever-changing rules have at times hampered our efforts to tell the whole story.

Security regulations surrounding photos and videos were perhaps the most confounding.

Last week, censors erased a photographer’s shots of the tents at “Camp Justice” where journalists reside because there were more than three tents in the frame. A television reporter’s clip was deleted because the shot showed her talking with an orange barricade in the background. No one could explain why that was a problem.

Tight shots of razor wire were okay, except if it surrounded the courthouse, even if the courthouse wasn’t shown. I tried to point out that I didn’t think Al Qaeda would be surprised that razor wire was being used as security.

Detainees couldn’t be interviewed or identified in photographs because of the Geneva Conventions, Pentagon spokespeople and military commanders told us.

The international treaties state that prisoners of war must “at all times be protected … against insult and public curiosity.” The PoWs should be afforded “respect for their persons and their honour.”

But the Bush administration created this offshore prison in an effort to sidestep those same Geneva Conventions. U.S. President George W. Bush, who left office last week, famously stated that only the “spirit of” the Geneva Conventions would be respected at Guantanamo.

Our military escorts would correct us if we referred to captives as prisoners because these were not “prisoners of war” but “detainees.”

And if the reason for censoring photos was to protect a captive’s right to privacy and honour, then the Pentagon violated its own rules when it released Guantanamo’s most famous picture. The photo, taken in 2002, showing shackled prisoners in orange jumpsuits kneeling in the hot Cuban sun while dogs and soldiers bark at them, was actually taken by a U.S. sailor.

When international furor erupted, the Pentagon quickly labelled the photos “For Official Use Only” in an attempt to prevent further distribution. But it was too late.

The entire article is a must-read, if only to counter revisionist attempts to distort the legacy of Guantanamo, such as this unfortunately (if tellingly) titled op-ed from Sunday’s Washington Post, ‘When Gitmo Was (Relatively) Good,’ in which writer Karen J. Greenberg tries to construct a ‘One Good German’ counternarrative lauding “small initial efforts at decency” on the part of detention officials.

Purported good intentions aside, Guantanamo was an immediately tainted effort once the decision was made to, according to Greenberg, “act in a manner “consistent with” the conventions (as the mantra went) but not to feel bound by them [emphasis added].”  As soon as the US untied itself from binding international law, specifically and deliberately design a detention facility in order to sidestep regulation and oversight,  the entire enterprise was doomed to debasement, no mater how hard officials initially tried to voluntarily (key word) “go with the Geneva Conventions,” as Staff Sgt. Anthony Gallegos, quoted by Greenberg, put it.

Keep that statement–“not to feel bound by them“–in mind as the new administration ties itself in knots trying to untangle the legal and moral mess left behind by the previous–and, as GOP leaders like John Boehner continue to peddle the Club Gitmo myth,  also remember Shephard’s stark recounting of Guantanamo’s true legacy.

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The Damage Done

by matttbastard

Apparently The Dark Side was only the iceberg’s tip:

“President Obama’s plans to expeditiously determine the fates of about 245 terrorism suspects held at Guantanamo Bay, Cuba, and quickly close the military prison there were set back last week when incoming legal and national security officials — barred until the inauguration from examining classified material on the detainees — discovered that there were no comprehensive case files on many of them.

Let’s pause for a moment to let that sink in: “there were no comprehensive case files on many of them.”

Ok, moving on:

Instead, they found that information on individual prisoners is “scattered throughout the executive branch,” a senior administration official said. The executive order Obama signed Thursday orders the prison closed within one year, and a Cabinet-level panel named to review each case separately will have to spend its initial weeks and perhaps months scouring the corners of the federal government in search of relevant material.

Several former Bush administration officials agreed that the files are incomplete and that no single government entity was charged with pulling together all the facts and the range of options for each prisoner. They said that the CIA and other intelligence agencies were reluctant to share information, and that the Bush administration’s focus on detention and interrogation made preparation of viable prosecutions a far lower priority.

Rewind my selekta: “[T]he Bush administration’s focus on detention and interrogation made preparation of viable prosectutions a far lower priorty

A far lower priorty.

Of course, DeYoung and Finn wouldn’t be “objective” if they didn’t (falsely) balance things out with the requisite mealy-mouthed partisan broadsides from–wait for it, kiddies–some unnamed former Bush administration assbaskets who nostalgically break out their by-now-rusty bullshit shovels:

But other former officials took issue with the criticism and suggested that the new team has begun to appreciate the complexity and dangers of the issue and is looking for excuses.

After promising quick solutions, one former senior official said, the Obama administration is now “backpedaling and trying to buy time” by blaming its predecessor. Unless political appointees decide to overrule the recommendations of the career bureaucrats handling the issue under both administrations, he predicted, the new review will reach the same conclusion as the last: that most of the detainees can be neither released nor easily tried in this country.

“All but about 60 who have been approved for release,” assuming countries can be found to accept them, “are either high-level al-Qaeda people responsible for 9/11 or bombings, or were high-level Taliban or al-Qaeda facilitators or money people,” said the former official who, like others, insisted on anonymity because they were not authorized to talk to reporters about such matters. He acknowledged that he relied on Pentagon assurances that the files were comprehensive and in order rather than reading them himself.”

Well, isn’t that cute!  He never read the (um, non-existent files) that the Pentagon claimed are comprehensive (and are, um, non-existent),  yet somehow still remains completely confident that all Gitmo detainees (apart from the 60 designated for release–oopsie!) are lawfully detained and cannot ever be released, because, um, well, because — hey, look! A Wookie from the planet Kashyyyk!

It does not. make. sense.

Ok, say what you want about the Nazis, but at least they had the *ahem* decency to keep oh-so-impeccable records on their detainees; would that the former administration have shown similar consideration.

Hilzoy (h/t) lays it out on the table:

It takes, well, a special kind of administration to detain people for years on end without bothering to assemble case files on them. I’m just glad they’re finally gone.

Yes, gone, but their tainted legacy, unfortunately, festers, like black mold spreading contamination throughout the structure of US and international law.

Steve Benen puts these latest revelations in context:

The previous administration a) tortured detainees, making it harder to prosecute dangerous terrorists; b) released bad guys while detaining good guys; and c) neglected to keep comprehensive files on possible terrorists who’ve been in U.S. custody for several years. As if the fiasco at Gitmo weren’t hard enough to clean up.

And in order to completely mitigate the rot that, over the past 8 years, has almost completely eaten away at the rule of law in the US, Sylvia/M believes that the Obama administration must subcontract the restoration of  justice to the Hague:

If Obama really wants to restore our standing in the international community and to reinstate the rule of law here in the United States, now is the time to bind ourselves to the Rome Statute, submit to international justice, and start cleaning up the deeply entrenched messes our previous partisan warhawk regime has wrought.  The damage is growing too deep and too great for our national court systems to fix alone.

At the very least, this latest postscript from The Dark Side further underscores how vital it is for the Obama administration to hold accountable those who, whether deliberately or by virture of willful indifference, chose–chose–to napalm all progress Western Civilization has made since the Magna Carta was signed.

Torching our value system, in order to save it.

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To 2015 — And Beyond!

by matttbastard

“I’ve never looked at myself in the mirror and said, ‘What a good guy he is.’”

Making every Democrat and progressive who gives a shit about effective Congressional leadership wince, Harry Reid has informed The Politico that he isn’t going anywhere, and dares Republicans to bring it on (so to speak) in 2010. Yes, because nothing says “heckuva job” like once again guiding Congress to historically low approval ratings in 2008–shit, if Reid were the CEO of a Fortune 500 company he’d…er, well, he’d likely be handed a hefty multi-million dollar bonus and a contract extension. Anyway, despite all that pesky dissatisfaction being expressed by the ungrateful masses, Reid confidently likens his role over the past 8 years to “a point on a spear going against George Bush,” claiming “[t]hat’s what I had to do to protect the United States Senate and the country.”

Right, well, if that’s the case, the Dems better think about sharpening that mofo, because apparently it can’t pierce tissue paper, as Glenn Greenwald tartly notes:

Not even the most cynical political observer would have believed that it was the ascension of Harry Reid and Nancy Pelosi that would be the necessary catalyst for satisfying Bush’s most audacious demands, concerning his most brazenly illegal actions. If anything, hopes were high that Democratic control of Congress would entail a legislative halt to warrantless eavesdropping or, at the very least, some meaningful investigation and disclosure — what we once charmingly called “oversight” — regarding what Bush’s domestic spying had really entailed. After all, the NSA program was the purified embodiment of the most radical attributes of a radical regime — pure lawlessness, absolute secrecy, a Stasi-like fixation on domestic surveillance. It was widely assumed, even among embittered cynics, that the new Democratic leadership in Congress would not use their newfound control to protect and endorse these abuses.

Yet in July 2008, there stood Pelosi and Reid, leading their caucuses as they stamped their imprimatur of approval on Bush’s spying programs. The so-called FISA Amendments Act of 2008 passed with virtually unanimous GOP and substantial Democratic support, including the entire top level of the House Democratic leadership. It legalized vast new categories of warrantless eavesdropping and endowed telecoms with full immunity for prior surveillance lawbreaking. Most important, it ensured a permanent and harmless end to what appeared to be the devastating scandal that exploded in 2005 when the New York Times revealed to the country that the Bush administration was spying on Americans illegally, without warrants of any kind.

With passage of the Act, Democrats delivered to the Bush administration everything it wanted — and more. GOP Sen. Kit Bond actually taunted the Democrats in the Times for giving away the store: “I think the White House got a better deal than they even had hoped to get.”

[...]

The FISA fight was the destructive template that drove virtually every other civil liberties battle of the last year. Time and again, Democrats failed to deliver on a single promise. They failed to overcome a GOP filibuster in the Senate to restore habeas corpus, which had been partially abolished in 2006 as a result of the Military Commissions Act that passed with substantial Democratic support and wholesale Democratic passivity. Notably, while Senate Democrats, when in the minority, never even considered a filibuster to block the Military Commissions Act, it was simply assumed that the GOP, when it was in the minority, would filibuster in order to prevent passage of the Habeas Restoration Act. And filibuster they did.

Apparently Reid and his fellow travellers in the legislative branch never paid much heed to the old adage re: bringing knives to gun fights. The principle also holds true for spears, I’m sure. Especially dull spears, with roses and sweet, sweet candy tied to the tip (sour overtures to lame ducks aside).

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Beltway Inertia and the Rule of Law

by matttbastard

In a must-read post today, Glenn Greenwald challenges Ruth Marcus and the establishment Washington consensus, in which the pursuit of war crimes charges against soon-to-be-former Bush officials is arbitrarily dismissed as either too polarizing, too partisan, or just too goddamn difficult to successfully prosecute, and thus should be preemptively abandoned.  Greenwald explains why this virtually ensures the perpetuation of an unlawful historical feedback loop:

Along with the desire for just retribution, one of the two principal reasons we impose penalties for violations of the criminal law is deterrence — to provide an incentive for potential lawbreakers to refrain from breaking our laws, rather than deciding that it is beneficial to do so. Though there is debate about how best to accomplish it and how effective it ultimately is, deterrence of future crimes has been, and remains, a core purpose of the criminal law. That is about as basic as it gets. From Paul Robinson, University of Pennsylvania Law Professor, and John Darley, Psychology Professor at Princeton, in “The Role of Deterrence in the Criminal Law“:

For the past several decades, the deterrence of crime has been a centerpiece of criminal law reform. Law-givers have sought to optimize the control of crime by devising a penalty-setting system that assigns criminal punishments of a magnitude sufficient to deter a thinking individual from committing a crime.

Punishment for lawbreaking is precisely how we try to ensure that crimes “never happen again.” If instead — as Marcus and so many other urge — we hold political leaders harmless when they break the law, if we exempt them from punishment under the criminal law, then what possible reason would they have from refraining from breaking the law in the future? A principal reason for imposing punishment on lawbreakers is exactly what Marcus says she wants to achieve: “ensuring that these mistakes are not repeated.” By telling political leaders that they will not be punished when they break the law, the exact opposite outcome is achieved: ensuring that this conduct will be repeated.

[...]

Every time we immunize political leaders from the consequences of their crimes, it’s manipulatively justified in the name of “ensuring that it never happens again.”  And every time, we do exactly the opposite:  we make sure it will happen again.  And it does:  Richard Nixon is pardoned.  J. Edgar Hoover’s lawbreakers are protected.  The Iran-contra criminals are set free and put back into government.  Lewis Libby is spared having to serve even a single day in prison despite multiple felony convictions.  And now it’s time to immunize even those who tortured detainees and spied on Americans in violation of numerous treaties, domestic laws, and the most basic precepts of civilized Western justice.

One would hope to see those individuals who have been granted a national platform that allows them to have a measurable impact on the tone of discourse in Washington be responsible and advocate on behalf of the rule of law. Instead, they collectively sigh, texturally furrow their brows over how hard it is to do the right thing, before finally settling for the cold, easy comfort of doing nothing (shades of grey, children. Shades. Of. Grey.) In an article published yesterday by McClatchy Newspapers, Marisa Taylor starkly lays out the logical consequence of elite apathy towards defending the rule of law:

Without wider support, the campaign to haul top administration officials before an American court is likely to stall.

What this says to the nation, and the world, about the US and its lack of commitment to justice, human rights, and the rule of law is nothing short of staggering.  As Loyola war law expert David Glazier put it,

It is mind boggling to say eight years later that there is not going to be some sort of criminal accountability for what happened… . It certainly undermines our moral authority and our ability to criticize other countries for doing exactly the same thing. But given the legal issues and the political reality, I am hard pressed to see any other outcome.

And because our gatekeepers of ‘reasonable’, ‘serious’ discourse can’t begin to envision any viable course of action other than forgive and (try our goddamndest to) forget, all of this–state-sanctioned torture and rendition, unlawful domestic surveillance, an unnecessary war in Iraq that, thus far, has killed well over a million people–has, in effect, been green-lighted twice.  First, by Bush, Cheney and the rest of those who felt that burning the Constitution was the only way to save it. Then, retroactively, by those in the Beltway press corps, elite Washington society and–most egregiously–the incoming Democratic administration, all of whom would apparently rather practice their statesman-like ostrich pose than risk disrupting the inertial ebb and flow of their delicate political ecosystem.

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