Thursday, February 7, 2013

Dirty No-Longer-A-Secret

A white paper from US Department of Justice (PF) providing legal justification for the US government's targeting of US citizens believed to be members of Al Qaeda is leaked and is greeted by our elected representatives with deafening silence. (Given this administration's aggressive posture on leakers, I would not be surprised if whoever released this document is vigorously hunted down and prosecuted.)

Before I delve into the memo, let me present some background information. Three days after the Sep 11 attack, Congress passed the Authorization to Use Military Force Against Terrorists granting broad authority to the President.

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The authorization also states:

Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

It's important to note that the authorization applies anywhere in the world and does not expire. Let's have a look at Section 5(b) of the War Powers Act:

Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces.... (bolding mine)

Congress satisfied the requirements of the War Powers Resolution with the Authorization to Use Military Force. While you are reading this blog, shopping at the mall, or swearing at the driver who just cut you off, our country remains in its self-defined global war against terrorism. One aspect of this war is our government's ability to kill American citizens deemed a threat. The white paper addresses that specific aspect.

This white paper sets forth a legal framework for considering the circumstances in which the U.S. government could use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa'ida or an associated force of al-Qa'ida--that is, an al-Qa'ida leader actively engaged in planning operations to kill Americans.

Check out this paragraph:

By its nature, therefore, the threat posed by al-Qa'ida and its associated forces demands a broader concept of imminence in judging when a person continually planning terror attacks presents an imminent threat, making the use of force appropriate. In this context, imminence must incorporate considerations of the relevant window of opportunity, the possibility of reducing collateral damage to civilians, and the likelihood of heading off future disastrous attacks on Americans. Thus, a decision maker determining whether an al-Qa'ida operational leader presents an imminent threat of violent attack against the United States must take into account that certain members of al Qa'ida (including any potential target of lethal force) are continually plotting attacks against the United States;  that al-Qa' ida would engage in such attacks regularly if it were able to do so; that the U.S. government may not be aware of all al-Qa'ida plots as they are developing and thus cannot be confident that none is about to occur; and that, in light of these predicates, the nation may have a limited window of opportunity within which to strike in a manner that both has a high likelihood of success and reduces the probability of American casualties.

First of all, if something is imminent, it is likely to occur at any moment. A "broader concept of imminence" renders the concept of imminence meaningless. But even more striking is the self-serving deceptive logic with the paragraph.

 - Al Qaeda is always plotting attacks against the US.
 - Al Qaeda would attack on a regular basis if they could.
 - We may not be aware of the plots and one could happen at any time.
 - Just to make sure because we can't be sure, we can kill Americans.

Those statements justify our administration's position (and practice) of killing an American citizen whom it claims is a senior operational leader of Al Qaeda or an associated force. Reminiscent of former Vice President Cheney's One Percent Doctrine, we're saying that if there's a slight chance an American is a terrorist,we should treat it as a certainty. Not only that, the designation of an American as a member of Al Qaeda or an associated force--What is that besides a catch all?--is done in secret. All of this is done in secret by "an informed decision maker" who has been given carte blanche by Congress.

Remember our shameful justification of torture which we redefined as enhanced interrogation? Presumably we stopped that, but we never prosecuted those who violated the law. This administration did nothing about those who authorized or administered torture. The only person prosecuted by the Obama administration was a whistleblower.

Extrajudicial killings through the use of missile-laden unmanned aircraft continue today. We get away with it because we're doing it in countries where we can get away with it. Countries who don't have enough power or a strong enough government to demand that we stop. We're the ones determining which of the dead are militants. Conveniently, all of the dead are unless proven otherwise.

The mission to kill Osama bin Laden proved we have the ability to capture--we could have captured him if we wanted to--senior operational leaders of Al Qaeda. The lazy way is to send missiles. Everyone who witnesses the attacks know where the missiles can from and who to hate for sending them. We shall reap what we sow.


Anonymous said...

"Given this administration's aggressive posture on leakers, I would not be surprised if whoever released this document is vigorously hunted down and prosecuted."

Prepared to be surprised at the lack of prosecution. Or for an OJ-style investigation. The administration only prosecutes unauthorized leaks. One of many articles on this topic, this one from Greenwald:

Also note that the leaked document was UNclassified, and clearly contrived not to break laws. Obama's release of the real memo also decreases the possibility of prosecution for content within the memo.

This debate was stage managed by the Obama administration. Obama wants Congress to sign on to his illegal, unauthorized (unauthorizable) personal drone war by confirming Brennan, which is assured.

Democrats should be ashamed.

Anonymous said...

Why hasn't Holder arrested Michael Isikoff? Why haven't the banks and paypal and ISPs cutoff NBC, as they did with wikileaks?

Nellie Brown said...

Why hasn't Obama fired Holder?

A memo outlining the administration's secret rationale for violating the Constitutional rights of Americans (hot topic!) floats around the DOJ without going through the classification process, and then shows up on NBC?? WTF???

If that's the true story, why does Holder still have a job? Why don't members of Congress investigate his sloppy oversight?

On the larger issue of authorization, why the presumption that Congress has the power to allow citizen assassination, without recourse to the courts, by statute? That is a ridiculous interpretation of the War Powers Clause, and actually mocks the meaning of the habeus Suspension Clause.

Obama has been flying solo on drones--illegally and without authorization--which he is now implicitly acknowledging. But, neither can Congress grant the President powers that violate Constitutional guarantees of individual liberty to the extent the President has exercised or claimed.

Anonymous said...

This whole story grows more mysterious the more you think about it.

I'm not even sure I get why the leak of one memo would cause the administration to release another to the intelligence committees. Especially since the first hadn't been classified and the second one was. How do they differ?

I also don't get the media's role here, coming on the heels of their (the New York Times and Washington Post at least) admission that they covered up the Saudi drones at behest of the Obama administration. Where's our independent press? Does this mean the whole memo story is a colloboration between NBC and the White House?

The drone program is the most important issue in the Brennan hearings, but torture seems forgotten. Brennan's involvement in torture, and his apparent coverup of his involvement, may get the short shrift here. Torture alone should disqualify him.

Maybe that's the whole point.

Ooh, ooh, over here! said...

I have a question.

A DOJ white paper leaks on a sensitive topic, turns out the DOJ never classified it. Why isn't the media asking the AG to explain?

Anonymous said...

So, the hearing. Democrats believe the President can kill Americans inside America without due process. That water boarding is not torture. That the administration doesn't need no stinking oversight.

Brennan wonderfully clarified the state of American politics.

To be a Democrat or Republican is to be a Fascist in the full sense of the word. To identify with either party means that one fundamentally opposes human rights and the rule of law, that one opposes core American values of tolerance, due process, and the separation and limitation of powers. It means participation in a cult of personality, where the dear leader can do no wrong and needs no oversight. It means one is a bigot, and worships money and violence.

Better to know, I guess. Thank you for telling the truth, Mr. Brennan.

Old Bob said...

That white paper leak investigation is sure off to a slow start.

Maybe Obama was so pleased with how well senators performed his script at the hearing that he thought, y'know, whatevers.

Feinstein lipsyncs way better than Beyonce, right? And it's always awkward to investigate oneself. Anyway, if the president does it it's not illegal. Who "leaked" to Isikoff? The press isn't even asking.

This stuff is so much better than democracy. Everything smooth and predictable. No jarring discordant questions. Carefully prewritten answers. We can move our lips and pretend to sing along, while the lights go out for government of the people, by the people, and for the people.

Old Bob said...

At Slate, William Saletan states flatly that Obama authorized the leak.

"Last week, to assuage critics of the targeted killing program, the administration leaked a Justice Department 'white paper' summarizing its new interpretations."

Saletan doesn't source this claim, but it does fit the facts better than the assumption that some congressional staffer, CRITICAL of drones, leaked the paper. The media is endlessly parroting as fact, without sources, that the administration did not want the white paper released to the public. Then why would Obama release even another memo to Congress, and why isn't there an investigation? Why wasn't the white paper classified?

The assumption is that Obama wants total secrecy and no dissent. But the President realizes that no debate at all means the culpability for killing Americans is his alone. What the President wants is shared and dissipated culpability. To get it, he needs a semblance of "informed" debate, a semblance of transparency, and dissent carefully channeled only by the white paper and the memo justifying Anwar al Awlaki's killing. Notice Obama released no memos justifying Awlaki's teenage son's killing, whom Obama targeted separately.

Whether Americans support Obama's bid for supreme executive power to kill Americans or not, people should realize Obama is controlling the debate and dishonestly playing with us. He's also playing with Congress, but it's obvious that most members of the committee played along. As has some of the press, while the rest just repeats uncritically.

We are being had. I challenge Wyden or Udall to place a hold on Brennan's nomination until all memos are public. Prove you're not faking it, Senators.

Anonymous said...,31207/

Anonymous said...

No Senator has yet placed a hold because Brennan promises to pursue an illegal policy at the CIA, but Graham may place a hold related to the embassy attack in Libya.

Not entirely irrelevant in that Obama illegally went to war in Libya without a Congressional declaration, with the result that he was constrained to air power alone, with limited ground forces.

A similar hubris pertains to drone attacks without ground support, which results in kill over capture for US citzens and somewhat dubious intelligence targeting. I thought the Morten Storm stuff would make a more convincing case for the killing, and it still says nothing about the kid's death. Some oddball, vacillating Dane mercenary gets to decide if Americans lose their Constitutional rights to due process? Oh Yorick!

Tragically, Graham is focused narrowly on Obama's actions the day of the attack and he has also threatened a hold on Hagel. Graham is jonesing for more drones and military commitment, not less.

Brennan is a disaster for democracy and isn't fit for office. Graham ain't fit either. What the hell, let them tear at each other until some other Senator has the gonads to scuttle the nomination for the right reasons. Rand Paul? Sanders? Angus King? Sanders and King have enormous political leverage, if they only used it. At least make President Hamlet announce every assassination of a US citizen the day after the fact, to the TV cameras in person. The secrecy is probably more corrosive to the republic than any individual killing. If our analytical President thinks he's more clever than the Constitution, let him speak up and prove it.

Anonymous said...

India and the U.S. refuse to extradite the Dalai Lama to China to stand trial as a terrorist.

Do Democrats therefore support China if China sends a drone into Dharamsala or Seattle to assassinate the "Chinese citizen" Dalai Lama?

Anonymous said...

Rand Paul places a hold, and for the right reasons.

Where are Sanders, Wyden, King, Udall, Franken, Murray, Cantwell?