The American Bear

Sunshine/Lollipops

How We Made Killing Easy | David Cole

[P]erhaps 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 [supposedly], will undertake them whenever it can do so [supposedly], 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 [and hundreds of civilians including children] 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.

In fact, the capabilities of drones raise a number of related questions that go entirely unasked in this paper. Drone technology has made it possible to use lethal force in many situations where we could not or would not have even considered it in the past. Unlike conventional military operations, drone attacks require no “boots on the ground,” and therefore do not pose a risk to American lives. Unlike bombings, they have pinpoint accuracy; they therefore reduce the collateral costs of killing and may be easier to disavow. Because drones can effectively travel the world while being controlled remotely from home, they permit the “war” to move far beyond the battlefield. And drones have made it possible for the US government to do something that was unthinkable before, and should be unthinkable still—to kill its own citizens in secret. In short, drones radically reduce the disincentives to killing. And that may well make a nation prone to use military force before it is truly a last resort. That certainly seems to be what has happened here.

The Assassination Manual | Paul Pillar

"Legitimation or legitimization is the act of providing legitimacy. Legitimation in the social sciences refers to the process whereby an act, process, or ideology becomes legitimate by its attachment to norms and values within a given society. It is the process of making something acceptable and normative to a group or audience." (x)

In one sense the Obama administration’s reported creation of a “playbook” establishing rules for killing alleged terrorists helps to meet calls from outside commentators—this one included—to clarify the criteria that are being applied to such assassinations. Writing this kind of manual, however, has another side. It represents the institutionalization of worldwide assassinations as a regular, ongoing business of the United States government. As such it raises larger questions, which the playbook might not address at all, of how an assassination program does or does not conform with the pursuit of U.S. national interests.

Institutionalization of anything entails a bias toward its indefinite continuation, and maybe even its expansion. This tendency has often been discussed regarding other government programs, sometimes with a tie-in to what is outside government. The military-industrial complex about which Eisenhower warned, for example, represents a bias toward big defense expenditures and military operations to justify such expenditures. Likewise, it has often been remarked that creation of a bureaucracy to run domestic program X immediately creates a vested interest in favor of continuing and even expanding program X. Why should such tendencies not be just as likely to appear with an assassination program?

The Washington Post’s story about the manual leads with the news not only that the manual is near completion but also that it will not be applied for a year or two to drone strikes in Pakistan. Thus what is considered short-term and exceptional is limited to what is going on now in Pakistan. By implication and contrast, all of the other worldwide assassinations constitute something regular and long-term, and, so far as we know, limitless in both duration and geographic scope.

Lest we forget, it was not all that long ago that Americans and their presidents considered assassinations sufficiently contrary to American values that we should rule them out, as Gerald Ford, Jimmy Carter and Ronald Reagan all did by executive order. What has changed since then to erase this determination? Oh, there’s 9/11 of course, although the unraveling of the prohibition on assassinations actually began (with Osama bin Laden in particular in mind) a few years before 9/11. And even if it were all about 9/11, why should the fact that one bunch of terrorists hit a high-casualty jackpot be a reason for us to change our thinking on this subject in such an apparently fundamental way? Regarding morality, since this was originally a matter of consistency with American values, have our values really changed that much? Regarding legality, is there no limit to which that one resolution authorizing force that Congress passed in the emotional week after 9/11 be stretched in terms of either duration or geographic scope?

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Israel's assassinations raise questions | Jillian Kestler-D'Amours

Research by the Gaza-based Palestinian Center for Human Rights (PCHR) found between the start of the Second Intifada in September 2000 until the end of June 2008, the Israeli military carried out 348 “extrajudicial execution operations” in the occupied Palestinian territories.

The attacks killed 754 Palestinians; 521 individuals specifically targeted and 233 civilian bystanders, including 71 children and 20 women.

“These premeditated executions are carried out with the explicit approval of the highest ranking Israeli political and military officials, who claim these executions are ‘targeted killings’ of Palestinians who allegedly threaten the security of the State of Israel,” the report says.

Shawan Jabarin, director of Palestinian human rights group Al Haq, told Al Jazeera that Israel’s policy of “targeted killings” only triggers more violence, and increases Palestinian resistance.

“Israel, since the beginning, knows well that when it carries out this kind of killing, a reaction will come directly to that and the civilians will pay a high price,” Jabarin said. “But Israel feels that it is not accountable and because of that, it continues with the same policy.”

In one of the most high-profile Israeli assassinations, Ghassan Khanafani - Palestinian writer and member of the Popular Front for the Liberation of Palestine - was killed by a car bomb in Beirut in 1972. One year later, Israel killed three high-ranking Palestine Liberation Organisation leaders, also in Beirut.

Most recently, after almost 25 years of denial and secrecy, Israel admitted killing former Palestinian leader Yasser Arafat’s second in command, Khalil al-Wazir, in a 1988 raid in Tunisia.

While Israel has yet to publicly admit its culpability, Israeli intelligence agents - reportedly using falsified, foreign passports - are suspected of assassinating Hamas leader and co-founder of its military wing Mahmoud al-Mabhouh in a Dubai hotel room in 2010.

“The Israelis operate in the past, as if this is a military problem. It’s really a political problem,” said Rashid Khalidi, the Edward Said professor of Modern Arab Studies at Columbia University. “It’s not going to be solved by killing this bomb-maker or this military commander. The longer that the Israelis stay in that rut, the worse I think things will get.”

American legal expert Alan Dershowitz has argued that some assassinations are legal.

Dershowitz, a professor of Law at Harvard Law School, wrote last week in commentary in the Israeli daily Haaretz that “targeting only terrorists and Hamas military leaders - is completely lawful and legitimate”.

“It constitutes an act of self-defense pursuant to Article 51 of the United Nations Charter and universally accepted principles of international law,” Dershowitz said.

The Universal Declaration of Human Rights, however, states that all individuals have the right to life, liberty and security. Article 6 of the International Covenant on Civil and Political Rights also says the right to life must be protected by law, and “no one shall be arbitrarily deprived” of that right.

According to the United Nations’ “Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions,” governments must prohibit such executions and ensure they are considered offenses under their state’s criminal laws.

“Exceptional circumstances, including a state of war or threat of war, internal political instability or any other public emergency may not be invoked as a justification of such executions,” it says.

The Fourth Geneva Convention, which sets out the laws of war as applied to civilians and applies to the occupied Palestinian territories, also affirms that individuals are protected against willful killing and shall be granted the right to a fair trial.

According to a report released in 2010 by the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Israel refused to admit carrying out “targeted killings” for decades.

“There is no policy, and there never will be a policy or a reality, of willful killings of suspects … The principle of the sanctity of life is a fundamental principle of the [Israeli army],” it quoted the Israel Defense Forces as saying.

However, in November 2000 Israel admitted conducting assassinations. [more]

interpretative innovations […] devised to frame otherwise clearly illegal practices as legal by contending that the laws that would prohibit them are inapplicable. In these twenty-first century asymmetrical conflicts, officials interpreted the law to assert the state’s operationally and territorially unbounded rights and the rightlessness of its enemies. "State Lawfare" | Jadaliyya Roundtable on Targeted Killing

Holder Dances the Assassination Tango | Scott Horton

More on Attoney General Eric Holder’s (the Obama administration’s) flimsy Unilateral Extrajudicial Assassination justification:

[…] Holder’s speech gave us some idea of the rules, but it was muddled on some key points. He said, for instance, that the rationale of the Supreme Court’s ruling in Mathews v. Eldridge applies, but he misstated the rule of the case by omitting one of its key factors: that the procedure the government follows has to avoid errors. This is not a trivial or technical point. One may very well argue that the president has the power to authorize such killings and still be concerned about the procedure he uses to pick his targets and authorize strikes. Indeed, the relatively large number of innocent victims killed in the strikes, and the number of cases in which the U.S. has relied on false information for its targeting, suggest that the current process accepts too much error. Holder also notes a prominent role for “immediate” threat, but the details of the al-Awlaki case show that Holder doesn’t use “immediate” the way most English speakers would.

Holder also failed to address the details of process. Who is making the decisions, and what specific authority have they been granted? It’s fairly clear that beginning in 2002, the White House was routinely reviewing and approving requests from the CIA and JSOC for targeted killings. The available evidence places Vice President Dick Cheney at the center of this process, and directly implicates members of his staff. President Obama seems to have picked up on Cheney’s procedures, with some modifications.

“This is an indicator of our times,” said Holder, “not a departure from our laws and our values.” That is the issue to be tested. At present, far too much remains secret to allow for meaningful assessment, but drones are clearly causing a thorough reformulation of tactics and strategies, and even a reconfiguration of the relationship between the intelligence community and the military. All of this is happening behind a curtain, with minimal public knowledge or input. Holder’s speech served mainly to highlight the many questions that remain to be answered. Some are likely addressed in the still-secret OLC memo. If America is truly sticking to her laws and values, then she should have no difficulty exposing her policies to public scrutiny.

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Dianne Feinstein Assures Us Her Review of Targeted Killing Is Adequate | Marcy Wheeler

Senate Intelligence Committee Chair Dianne Feinstein just sent out a release assuring us all that her committee keeps close watch over counterterrorism programs, including targeted killing. In her statement, she asserted that “our counterterrorism efforts are lawful under the Constitution.”

The Attorney General presented the administration’s legal analysis for the use of force against terrorists, including Americans. I believe it is important for the public to understand the legal basis and to make clear that our counterterrorism efforts are lawful under the Constitution, U.S. law and the law of war.

We are made safer by strikes against terrorists who continue to lead and carry out attacks on the United States. There are legal limits to this authority and great care is taken to ensure it is exercised carefully and with the absolute minimum of collateral damage. The Senate Intelligence Committee is kept fully informed of counterterrorism operations and keeps close watch to make sure they are effective, responsible and in keeping with U.S. and international law. [my emphasis]

It’s all very nice for DiFi, a member of the Gang of Four, to tell us that her committee is keeping close watch on the assassination of American citizens.

She can say that, because she has actually seen the government’s legal memo authorizing the killing of Anwar al-Awlaki.

Except that as of 6:47PM on Monday, according to Ron Wyden’s Communication Director, the full Senate Intelligence Committee still had not seen the legal justification for the Awlaki killing. Nor had it answered simple questions, like how much evidence the government needs to meet the Executive Branch’s unilateral standards for due process. Or whether the government can kill you in the US.

For example, the government should explain exactly how much evidence the President needs in order to decide that a particular American is part of a terrorist group.  It is also unclear to me whether individual Americans must be given the opportunity to surrender before lethal force is used against them.  And I’m particularly concerned that the geographic boundaries of this authority have not been clearly laid out.  Based on what I’ve heard so far, I can’t tell whether or not the Justice Department’s legal arguments would allow the President to order intelligence agencies to kill an American inside the United States.

If a member of the Senate Intelligence Committee doesn’t know the answers to those questions, DiFi is simply wrong when she claims her committee has had adequate oversight over the killing of an American citizen.

It’s all very nice that DiFi tells us this is constitutional. But right now there’s still been grossly inadequate oversight to test that claim. Hamdi required an impartial adjudicator. But at this point, I’m not convinced we’ve even fulfilled the requirements of the National Security Act.

Some news that is more important than the Republican Primaries

Once all the dust settles from the Republican demolition derby and the conservatives have chosen the lunatic they’d most like to hang out with, consider giving these doozies a read (at the very least read Greenwald, Pierce, and Turley).

Obama Administration Justifies Killing Citizens as ACLU’s Jaw Drops | Daily Intel

Eric Holder Drone Speech - How We Can Help President Obama Today | Charles Pierce

Attorney General Holder defends execution without charges | Glenn Greenwald

Holder Explains Threat That Would Call for Killing Without Trial | Charlie Savage

ACLU Comment on Eric Holder Speech on Targeted Killing Program | American Civil Liberties Union

When the US Government Can Kill You, Explained | Adam Serwer

Holder Promises To Kill Citizens With Care | Jonathan Turley

Tales of Flip-Floppery: Executive Overreach and the Rule of Law

Glenn Greenwald:

It isn’t merely the Democratic Party generally and its hordes of adherents who have performed a complete reversal on these issues as of January 20, 2009. It’s also true of Barack Obama and Eric Holder themselves.

Throughout the Bush years, then-Sen. Obama often spoke out so very eloquently about the Vital Importance of Due Process even for accused Terrorists. As but one example, he stood up on the Senate floor and denounced Bush’s Guantanamo detentions on the ground that a “perfectly innocent individual could be held and could not rebut the Government’s case and has no way of proving his innocence.” He spoke of “the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence.” He mocked the right-wing claim “that judicial inquiry is an antique, trivial and dispensable luxury.” He acknowledged that the Government will unavoidably sometimes make mistakes in accusing innocent people of being Terrorists, but then provided the obvious solution: “what is avoidable is refusing to ever allow our legal system to correct these mistakes.” How moving is all that? What a stirring tribute to the urgency of allowing accused Terrorists a day in court before punishing them.

Then we have Eric Holder, who in 2008 gave a speech to the American Constitution Society denouncing Bush’s executive power radicalism and calling for a “public reckoning.” He specifically addressed the right-wing claim that Presidents should be allowed to eavesdrop on accused Terrorists without judicial review in order to Keep Us Safe. In light of what the Attorney General said and justified yesterday, just marvel at what he said back then, a mere three years ago:

To those in the Executive branch who say “just trust us” when it comes to secret and warrantless surveillance of domestic communications I say remember your history. In my lifetime, federal government officials wiretapped, harassed and blackmailed Martin Luther King and other civil rights leader in the name of national security. One of America’s greatest heroes whom today we honor with a national holiday, countless streets, schools and soon a monument in his name, was treated like a criminal by those in our federal government possessed of too much discretion and a warped sense of patriotism. Watergate revealed similar abuses during the Nixon administration.

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.

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That the same Party and political faction that endlessly shrieked about Bush’s eavesdropping and detention programs now tolerate Obama’s execution program is one of the most extreme and craven acts of dishonesty we’ve seen in quite some time. By stark contrast, right-wing leaders, pundits and bloggers are being commendably consistent: they cheered for Bush’s due-process-free eavesdropping and detention programs and, based on exactly the same reasoning, they now lavishly praise President Obama for extending that mentality to assassinations. Glenn Greenwald | Attorney General Holder defends execution without charges

Holder Promises To Kill Citizens With Care | Jonathan Turley

Attorney General Eric Holder was at Northwestern University Law School yesterday explaining President Barack Obama’s claimed authority to kill any American if he unilaterally determines them to be a threat to the nation. The choice of a law school was a curious place for discussion of authoritarian powers. Obama has replaced the constitutional protections afforded to citizens with a “trust me” pledge that Holder repeated yesterday at Northwestern. The good news is that Holder promised not to hunt citizens for sport.

Holder proclaimed that “The president may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war — even if that individual happens to be a U.S. citizen.” The use of the word “abroad” is interesting since senior Administration officials have asserted that the President may kill an American anywhere and anytime, including the United States. Holder’s speech does not materially limit that claimed authority. He merely assures citizens that Obama will only kill those of us he finds abroad and a significant threat. Notably, Holder added “Our legal authority is not limited to the battlefields in Afghanistan.”

The Obama Administration continues to stonewall efforts to get it to acknowledge the existence of a memo authorizing the killing of Awlaki. Democrats previously demanded the “torture memos” of the Bush Administration that revealed both poor legal analysis by Judge Jay Bybee and Professor John Yoo to justify torture. Now, however, Democrats are largely silent in the face of a president claiming the right to unilaterally kill citizens.

Holder became particularly cryptic in his assurance of caution in the use of this power, insisting that they will kill citizens only 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.” What on earth does that mean?

He was more clear in establishing that due process itself is now defined differently than it has been defined by courts since the start of this Republic. He declared that “a careful and thorough executive branch review of the facts in a case amounts to ‘due process.’” Of course, from any objective standpoint, that statement is absurd and Orwellian. It is basically saying that “we will give the process that we consider due to a target.”

This is precisely why the Framers rejected the “trust me” approach to government, as discussed in this column.

Attorney General Eric Holder’s appearance at Northwestern on Monday, during which he explained the exact circumstances under which the president can order the killing of just about anyone the president wants to kill, was not promising. The criteria for when a president can unilaterally decide to kill somebody is completely full of holes, regardless of what the government’s pet lawyers say. And this…"This is an indicator of our times," Holder said, "not a departure from our laws and our values."…is a monumental pile of crap that should embarrass every Democrat who ever said an unkind word about John Yoo. Charles Pierce

When the US Government Can Kill You, Explained | Adam Serwer

[Eric] Holder’s speech did outline some concrete limits to when the US government is allowed to target its own citizens. The target has to pose an “imminent threat of violent attack” to the US and be beyond the ability of American authorities to capture, and the strike can’t violate international standards governing the use of force by killing too many civilians or noncombatants.

But don’t assume that when Holder says “imminent threat of violent attack,” he means that you’re actually part of a specific plot threatening American lives. “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,” Holder said. That would introduce an “unacceptably high risk of failure.” When he refers to “failure,” Holder presumably means failing to kill the target before the attack or plan for an attack materializies, not the possiblity that the government might accidentally kill an innocent person. 

If the standards for when the government can send a deadly flying robot to vaporize you sound a bit subjective, that’s because they are. Holder made clear that decisions about which citizens the government can kill are the exclusive province of the executive branch, because only the executive branch possess the “expertise and immediate access to information” to make these life-and-death judgments.

Here’s a repellant take-away:

These deaths and those to come, Holder insisted Monday, do not represent a violation of America’s founding principles. “This is an indicator of our times,” Holder said, “not a departure from our laws and our values.”

Maybe it’s both.

Holder also doesn’t mention when those “times” might end or whether that’s even a part of the discussion.