Charlie Savage, who when he worked for the Boston Globe did magnificent journalism in exposing the extensive use of signing statements by the Bush administration, has a piece on the front page titled Secret U.S. Memo Made Legal Case to Kill a Citizen. The public editor, Arthur Brisbane, devotes his Sunday column to the topic as well, under the title The Secrets of Government Killing.
There are several issues of importance in this matter. The first is that the administration has authorized the killing of American citizens not in ordinary acts of war and not even in a true combat zone, but in what can only be called a targeted assassination. The second, perhaps of even more significance, is that the authorization was granted by a memorandum that has even now not been disclosed to the American people, you know, the “We, the people of the United States” who are the legitimate sovereigns of this nation on whose behalf the government is supposed to be acting.
I do not propose to fully go through either piece – that is why I have provided the links. I do wish to explore a few aspects of the issue and fully intend to offer my own thoughts, which will be neither complimentary towards or supportive of this administration.
Let me start, before turning to the Times pieces, by noting several things.
First, for those who do not know, I teach government and politics to 10th graders at a high school in Maryland. I can teach just about any social studies course, but teach government by choice because I believe it is the easiest and yet most important subject to connect with adolescents. It is not just that I want them to know about the government, I want them to feel empowered that they can get involved and make a difference. Each year I struggle with what I am teaching, whether I still believe the individual can make a difference. This issue raises real questions for me about whether I should continue to teach.
Second, I am a strong supporter of Civil Liberties. While I recognize that any of the rights guaranteed in our first Ten Amendments is subject to restriction, I expect that the government be held to the strictest scrutiny by the Courts when it attempts to restrict rights, and that the assertions upon which the government relies be publicly vetted.
That leads to the third issue. I do not believe that any administration should be able to move in a way that potentially violates civil liberties without oversight by the elected representatives of the American people, the U. S. Congress. Even if secrecy should be required in some aspects in order to protect legitimate operations, the legitimacy of the operation and the decision to undertake it should at a minimum be shared with appropriate people in the Congress.
Given what I know so far, even after reading the two pieces in today’s Times, I do not believe the conditions I would require on the 2nd and third points have been met.
The Savage article includes somewhat detailed descriptions of the memorandum adopted by the administration, citing sources that have read it. Mr. Savage identifies the principle authors as two men then in the Office of Legal Counsel at the Department of Justice, David Barron and Martin Lederman. The key point is that it authorizes the targeted killing of American citizens who represent a clear danger to the US if it is not feasible to capture (and thus prosecute) him.
Savage’s article explores all the possible barriers to such an approach that were discussed in the process of drafting the memorandum. These include executive orders, laws, and Court decisions. You can read his article to see how each of these were addressed. It is worth noting one part of the reasoning process, and to do so I will quote 3 paragraphs:
Among them was an executive order that bans assassinations. That order, the lawyers found, blocked unlawful killings of political leaders outside of war, but not the killing of a lawful target in an armed conflict.
A federal statute that prohibits Americans from murdering other Americans abroad, the lawyers wrote, did not apply either, because it is not “murder” to kill a wartime enemy in compliance with the laws of war.
But that raised another pressing question: would it comply with the laws of war if the drone operator who fired the missile was a Central Intelligence Agency official, who, unlike a soldier, wore no uniform? The memorandum concluded that such a case would not be a war crime, although the operator might be in theoretical jeopardy of being prosecuted in a Yemeni court for violating Yemen’s domestic laws against murder, a highly unlikely possibility.
By this reasoning, the Central Intelligence Agency is able to murder American citizens – and others – without being subject to international law nor being subject to punishment under U.S. laws that apply to the rest of us. This should remind you of the rulings by Paul Bremer when he was running Iraq that exempted Americans and employees of American companies like Blackwater from prosecution under either U.S. law or by the Iraqis. If one has any doubt that such an attitude exists in this administration, one merely need note the recent statement by Leon Panetta as Secretary of Defense that he believes American forces need to be protected from prosecution in Iraq. One should also remember that in his previous position as Director of Central Intelligence he fought vigorously to prevent even a serious investigation of possible wrongdoing by employees of the Central Intelligence Agency in things like treatment of prisoners in Iraq and Afghanistan during the previous administration.
Savage goes on to note
The memorandum is said to declare that in the case of a citizen, it is legally required to capture the militant if feasible – raising a question: was capturing Mr. Awlaki in fact feasible?
Regardless of the risks of operating in Yemen, where he was located, the administration clearly was willing to take an even greater risk in going after Osama bin Laden, although Seal Team Six was more than ready to kill that target at the slightest provocation, and the rationale offered by the administration for taking the risk of a Seal Team was to be certain that they had gotten the targeted person, something not necessarily possible with a drone or missile strike.
It is interesting note one other thing about this strike:
As to whether it would violate Yemen’s sovereignty to fire a missile at someone on Yemeni soil, Yemen’s president secretly granted the United States that permission, as secret diplomatic cables obtained by WikiLeaks have revealed.
I cannot help but wonder whether the reason the highly despised by his people President of Yemen is still in nominal power is because it was a greater priority by this administration to have the cover of his permission to kill Anwar al-Alwaki than was the liberty and freedom from a tyrannical regime of the Yemeni people. For me, that is an issue that also should at a minimum been reviewable by the Congress of the United States.
Who can’t America kill? Arthur Brisbane begins his column as public editor with those words, words which should trouble us all. They stand alone, in a separate paragraph, immediately followed by this one:
The answer, as a matter of law, is simply unknown right now. That is an extraordinary thing, arising out of the new tactics and technology in use in the American offensive against terrorists and their networks.
I will quote three more paragraphs that present the heart of the column, because they present the next issue we need to consider:
Yet there remains no clear accounting of the legal principles or the process the executive branch is applying to support secret killings by the C.I.A., which carries out strikes far from the battlefield – in this case against a native-born American. The C.I.A. will not even acknowledge that the program exists.
The administration invokes secrecy to shield the details while simultaneously deploying a campaign of leaks to build public support. For The Times, and its peers, this dynamic is beyond awkward: it gives the appearance that the government is manipulating them.
This scenario can only get worse as the United States, moving to pull conventional military forces out of Afghanistan, comes to rely ever more on covert operations like the C.I.A. drone strikes in the region.
no clear accounting
the appearance that the government is manipulating them
can only get worse
It is already pretty horrible. Many condemned the legal opinions of the likes of John Yoo, Jay Bybee, and Stephen Bradbury during the last administration. The current administration released those torture memoranda, but took no action against their authors. Meanwhile John Yoo teaches at a prestigious law school, Jay Bybee is a federal judge, and Stephen G. Bradbury is a lawyer in the DC office of a prestigious law firm, Dechert LLP (full disclosure, my wife spent a summer as an intern in their home office in Philadelphia when they were still known as Dechert, Price and Rhoads).
Brisbane quotes a legal expert who is not necessarily opposed to the actions authorized by the the memorandum, but troubled by the lack of transparency of the process. Perhaps the concerns of some willing to grant the administration some latitude are best expressed by someone whose work we admire. Let me quote the relevant paragraph:
“How can the U.S. government have rules that spell out when it can use lethal force, even against a U.S. citizen, and not let the rest of the citizens know what those rules are?” Jane Mayer, who has written about the drone program for The New Yorker, said in an e-mail to me. “The press ought to be able to get access to and describe the legal opinions that govern this program. As we saw with the torture memos, which eventually leaked, legal reasoning can be extraordinarily revealing, and important.”
The press is the eyes and ears of the American people. To attempt to manipulate them by selected leaks has been a part of every administration I can remember. It does not live up to the campaign promises by those now in power of greater transparency.
I would go further than Mayer. I do NOT believe that the executive branch has the power to take such actions on its own without specific authorization by the legislative branch. During the Bush administration, there was no such authorization. As of yet there is no indication that the Obama administration even sought the advice of leaders of the legislative branch, much less their acquiescence or approval.
If the executive branch can so act on its own authority, in secrecy, than we have a very dangerous situation. It may claim the color of law for its actions, but its reasoning is still not subject to external examination and challenge, and that is a big step in the direction of incipient tyranny.
As bad as the threat of unregulated economic power and abuse such as that now being protested not only in Occupy Wall Street but around the nation as well, what is demonstrated in the Al Awlaki case is perhaps even more threatening, especially if one anticipates the possibility of an administration that made no pretense of its willingness to bend to the wishes of interests of the like of the Koch Brothers or similar groups. This is an extension of power against an American citizen done in secret which represents something very frightening.
It MAY be the responsible thing to have done, but I trust no administration to so act on its own. While the specific target of such an action would be a matter of operational secrecy, the fact of the development of such a policy should be exposed at least to the elected representatives of the American people. Absent that we have established a structure for tyranny,
This story is going to go on. Brisbane’s final paragraph makes that clear:
The public has a right to know, and assess, the legal rationale for these extraordinary and highly visible state killings. The public should have documented details concerning civilian casualties of the drone strikes. And The Times should do all it can to force this information out into the open.
But it is not only the New York Times that should be pushing back on this. Where is the Congress? Where are the American people?
This has been done in my name, in our names. Did anyone ask us? Or are we back to the words of Nathan Jessup in “A Few Good Men” that deep down we don’t want to know?
I want to know. I need to know if we are moving towards tyranny, in secrecy. It will affect not only how I act politically, but what I do about my students.
I am prepared to risk my vocation for what I believe is right.
I have since I was a teenager been prepared to go to jail for my beliefs.
I am not prepared to have a government killing others, not just American citizens, in my name, rationalizing its actions in secrecy with no oversight from others.
I would hope I am not alone in my concerns.
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