Though trained as a lawyer, and having spent fifteen years practicing law (whatever that means), since about midway through my first semester of law school, when I figured out that being a good lawyer has nothing to do with discovering and revealing truth and everything to do with corrupting and obfuscating it, I have loathed the law. I went along and finished law school because I had no idea what else to do, and my head was swirling in a confusion wrought by just having gotten married and then going to war and then coming back home to finally be released from military servitude. I knew I hated the law shortly after being immersed in it, but I felt then trapped by it, and especially so, when my wife decided that her ticking biology demanded a baby. When the clock chimed midnight, I was in my first year of law school and had no way to support a baby, let alone even her. She was working at a job four hundred miles from where I was attending school, and supporting herself (but not me, I paid for the whole law school thing myself). What objection could I have offered to her wishes? I just told her to go ahead and have one, but not to figure on taking much time off work to do so. The die was then cast. I would pay for the original sin of my existence by laboring long and hard in a field which I had come to hold in utter contempt.
Now that I’ve retired from the law (thank-you St. Augustine—which I’ll explain sometime later in this blog, but not in this post), I spend as little time thinking of it as I can. If one seeks to gain an understanding of these giddy Homo sapiens, law is perhaps the worst of all prisms through which to observe them. Law is a second derivative of human society. The base function is economics, whereby humans resolve the challenges of securing the necessaries of existence. The first derivative of economics is politics, where humans in society decide upon what is acceptable and just to be done among them, and in which power relationships are resolved. Law is created from politics. Trying to ascertain the nature of human beings by looking at how their relationships are resolved in the law is tantamount to attempting to resolve the nature of an electron by examining the behavior of galaxies. The behavior of galaxies is certainly affected by the nature of electrons, but in a train of events with so many intervening factors that any such analysis is rendered a mush of indecipherable relationships. Better to just look at the economics, and maybe the politics, and disregard the law if you wish to gain an understanding of humans in society.
Attorney General Eric Holder recently issued speech on the targeted killing of US citizens (among other things) that illustrates the point perfectly. He claimed that the targeted killing by the Administration of US citizens that have affiliated with al Qaeda, with no legislative or judicial oversight in the matter, is perfectly acceptable, violating no precepts of the law. But it is a very fundamental precept of the law (enshrined in the 5th Amendment to the US Constitution) that no citizen may be deprived of life, liberty or property without due process of law. How does Mr. Holder square the circle? Well, first by claiming these are desperate times requiring desperate measures, from his speech at Northwestern University yesterday (March 5, 2012):
We are a nation at war. And, in this war, we face a nimble and determined enemy that cannot be underestimated.
But has Congress made a declaration of war, as the Constitution requires? No. If this is a war, it is a war because the Administration, and its predecessor Administration, unilaterally decreed that it was a war. But this is quite routine. Though the Constitution authorizes only Congress to declare war, there have been at least 125 military engagements in which no war was ever declared, including the latest two in Afghanistan and Iraq, and the never-ending War on Terror, which is a tactic, not a foe. Someone wishing to understand what is really going on would do better to just ignore the Constitution and focus on events on the ground.
Now, I realize I have gone into considerable detail about tools we use to identify suspected terrorists and to bring captured terrorists to justice. It is preferable to capture suspected terrorists where feasible – among other reasons, so that we can gather valuable intelligence from them – but 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.
Of course the US has the right to defend itself through the appropriate and lawful use of legal force. But that’s not the legal question. The legal question is whether the Administration can decide that a US citizen can be unilaterally deprived of life without due process, simply because the Administration believes him to present a threat. “Lethal force” means in this context targeted killings, and though a student of the law may dig long and hard to find a legal principle that provides for targeted killings of leaders of nations unfriendly to the US, he won’t, because there is none.
This principle has long been established under both U.S. and international law. In response to the attacks perpetrated – and the continuing threat posed – by al Qaeda, the Taliban, and associated forces, Congress has authorized the President to use all necessary and appropriate force against those groups. Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law. The Constitution empowers the President to protect the nation from any imminent threat of violent attack. And international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.
By what metric does one distinguish between a conventional and non-conventional war? What is an “associated force”? Who is an enemy belligerent? What is imminent? Who gets to decide? Exactly. The trick here is to appear to be acting in accordance with the Constitution while completely ignoring it.
This does not mean that we can use military force whenever or wherever we want. International legal principles, including respect for another nation’s sovereignty, constrain our ability to act unilaterally. But the use of force in foreign territory would be consistent with these international legal principles if conducted, for example, 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.
“International legal principles” is an oxymoron. There is no such thing. Laws govern the actions within a nation; extra-national actions may or may not be restrained by treaties, which become something of a legal contract between nations, but a contract is only enforceable if there exists a threat of force capable of imposing enforcement. Within nations, the job of enforcing private contracts falls to the state (i.e., government), which necessarily must have a near monopoly on the imposition of force within the nation if the government is to carry any measure of legitimacy. Outside of the nation, private contracts, i.e., treaties, are enforced according to the relative power and will of the parties. Because there is no force capable of imposing a treaty’s obligations upon the US, it abides by them, or disregards them, at its whim.
Furthermore, it is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces. This is not a novel concept. In fact, during World War II, the United States tracked the plane flying Admiral Isoroku Yamamoto – the commander of Japanese forces in the attack on Pearl Harbor and the Battle of Midway – and shot it down specifically because he was on board. As I explained to the Senate Judiciary Committee following the operation that killed Osama bin Laden, the same rules apply today.
Neither is there any such thing as the law of war. There is only power. Though the killing of Yamamoto was hardly the same as the killing of bin Laden, the differences would not legally matter even within the US, where its laws are presumed to apply to itself, except that in Yamamoto’s case the US had declared war on Japan, but had not with al Qaeda. In other words, in Yamamoto’s case, the US had no legal principle whatsoever constraining its actions. In bin Laden’s case, it may need to conjure some principle that makes its actions legally defensible, but only for show. Legal principles don’t matter in war, even in the little undeclared wars that are themselves violative of the laws of the nation prosecuting them.
Some have called such operations “assassinations.” They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.
An assassination is defined as murder by surprise attack. The killing of another human is only murder within the context of the laws of a nation, for only a nation’s laws make the killing of another unlawful. Even the commandment “thou shalt not kill” only applied to the people comprising the Hebrew nation. Killing of others that were considered threats to Israel were celebrated as glorious expressions of valor and courage, and were certainly not “murder” according to the Hebrew state. So Holder is correct that they aren’t assassinations, or at least aren’t if the killed isn’t a citizen of the state doing the killing, but this is only relevant to people wishing to pretend that the US is a nation of laws and not men (the Administration), or to people naively clinging to such views.
Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad. Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted. But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans. Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.
This is legalistic garbage. There is no way to logically square the circle. Either a citizen can be Constitutionally deprived of life without due process of the law, or they can’t. Any manner of legal justification and rationalization can be contrived in order to make it seem that a supposed bedrock principle of the US’s founding has not been compromised in doing so, but the simple truth is that there is not now, nor ever has been, any bedrock moral principle expressed in this law, or any other. All Holder is doing is admitting as much while attempting to adhere the legal principles. Law means whatever the most economically and political powerful people and groups that care what it means, say that it means. The Fifth Amendment expresses nothing more than a one-time resolution of economic considerations (life, liberty and property) through the apportionment of political power. If the economic and political power changes, though the text of the law remains the same, the meaning changes as well. The legal “principle” that life is not to be deprived without the due process of law is a happy mirage that disappears on closer inspection. The only principle to which any nation ascribes is that of survival. Now, it could be argued that al Qaeda never has and never will present a threat to US survival, but apparently there are enough that believe otherwise until the Administration knows it can kill citizens on foreign soil with impunity. In my estimation, the Administration’s actions, and contrived legal theories justifying them, are nothing more or less than a power grab. The federal government realized a power vacuum after 9-11 and oozed in to fill it. That there has been almost no objection to its naked grab of power from those it disenfranchised points to the tacit, if not open, support of the power grab by those it affected.
Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.
The best way to conceal a power grab such that it may proceed without objection is to deny it is taking place, or that it is rather limited in scope. Nothing of the most recent killing of a US citizen meets any of the three criteria Holder stated, but he knows that few even remember the details of the incident, in which Anwar_al-Awlaki, and three others, including another American citizen, were killed. Even al-Awlaki’s sixteen year-old son, born in Denver and thereby a US citizen, was killed a couple of weeks later by CIA drone. Al-Awlaki was hiding in the mountains of Yemen at the time of his death. How could he have posed an imminent threat of violent attack to the US? Capture wasn’t feasible, but only because unilaterally doing so would violate the national sovereignty of Yemen, which was anyway violated, along with applicable law of war principles (as if such a thing exists), by his killing. The US killed al-Awlaki because it read the economic and political tea leaves and knew it could do so, with impunity. Whether or not it violated some hoary legal principle was of no concern whatsoever.
The unfortunate reality is that our nation will likely continue to face terrorist threats that – at times – originate with our own citizens. When such individuals take up arms against this country – and join al Qaeda in plotting attacks designed to kill their fellow Americans – there may be only one realistic and appropriate response. We must take steps to stop them – in full accordance with the Constitution. In this hour of danger, we simply cannot afford to wait until deadly plans are carried out – and we will not.
This is an indicator of our times – not a departure from our laws and our values. For this Administration – and for this nation – our values are clear. We must always look to them for answers when we face difficult questions, like the ones I have discussed today. As the President reminded us at the National Archives, “our Constitution has endured through secession and civil rights, through World War and Cold War, because it provides a foundation of principles that can be applied pragmatically; it provides a compass that can help us find our way.”
This is not a departure from our law and values because our laws mean only what the reigning powers say they mean, and our only abiding value at the national level is the same as that of every empire in history, and of all those that will come–survival and propagation so far as is possible. The US legal system might appear to be a great and original artifice of humanity, fleshing out the bedrock principles through which men in society should live. In fact, the Constitution is a most compliant compass, pointing whichever way the economic and political powers decree it must. Which perfectly reveals why the law is the worst means of trying to understand what’s going on. Don’t listen to what people say, listen to what they do. The law is just what they say about what they’re doing, and should mostly be ignored.
I almost feel sorry for the Attorney General. He has been hired to dish this bucket of nonsense he knows is a lie, yet has so completely mortgaged his soul that he appears eager to do so. How does it profit a man to gain the world if he loses his soul?