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Killing Us Softly
The scandal of the drone memo is that there isn’t any.

MQ-9 Reaper drone

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Daniel Foster

Dear Mr. President,

I noticed that your administration leaked a white paper from the Justice Department outlining your purported authority to kill U.S. citizens abroad when you determine them to be “senior operational leaders” of al-Qaeda or “an associated force.” Since I was planning a trip abroad this spring, I thought I’d write to ask if you would please not kill me while I am there.

You have my word, sir, that I am not a “senior operational leader” of al-Qaeda, and though few know just how your administration defines “an associated force,” I trust that even in these partisan times, National Review does not qualify. Should you need further evidence to feel comfortable abstaining from my assassination, I assure you that I pay my “fair share” in taxes, all of my magazines hold no more than nine rounds, and I have already started abiding by the individual-responsibility provision of the Affordable Care Act in anticipation of its full implementation. I have always been fond of Big Bird — unusually so, even! — and I’d just as soon you put drospirenone and estradiol in the water because it would solve a lot of problems all at once. So I’m really not all bad, you see?

I should say that I sincerely wish you success with all of your other targeted killings. Honestly, I do. It’s not that I don’t want you to be able to rub out the folks you think need rubbing out, because that’s not my place — and, YOLO, right?

But, again, I can’t emphasize enough that, for me personally, I’d prefer not to be exploded by precision-guided munitions from an unmanned aerial drone. If at all possible. (Loved your book, by the way.)

Oh, look at this, I’m rambling—shoot me! (This was an ill-advised joke, in very poor taste, and I am really quite sorry about it.) Listen, I don’t want to take up any more of your valuable time. Really, I don’t want you to spend another second thinking of me, in any capacity — but especially in any capacity that involves you putting my name on a list of Americans to delete.

My best to Michelle and the girls.

Yours (Please, dear God, I have a family, too),

— DRF

* * *

In all seriousness, or to borrow a phrase from the white paper, in all “extraordinary seriousness,” the scandal in the so-called drone memo isn’t its novelty, but its banality. You’d never know it from the way the johnny-come-lately media responded to the leak (proof if ever there was one that most of us hacks are only making soup from the scraps the administration leaves us), but there is nothing new in the white paper’s case for executive authority: The president has long claimed the power to forgo due process for U.S. citizens whom he deems a threat.

As Harvard Law’s Benjamin Wittes and Susan Hennessey point out at Lawfare, the white paper hews closely to a speech that attorney general Eric Holder gave at Northwestern University last year, and the two share the same provenance. Namely, in the aftermath of the killing of Anwar Al-Awlaki — a known dirtbag who also happened to have been born in New Mexico — the administration determined that it would be unwise to release even redacted versions of the chain of documents that led to his assassination, and instead trotted out Holder to give a vague speech outlining the broad contours of just where, when, and why the administration gets off offing Americans abroad.

The white paper goes into a little more detail than Holder did. In addition to determining that “Were the target of a lethal operation a U.S. citizen who may have rights under the Due Process Clause and the Fourth Amendment, that individual’s citizenship would not immunize him from a lethal operation,” it further specifies that such an assassination wouldn’t violate war-crimes laws or a long-standing executive order that bans . . . well, assassinations.

But the gist is the same. Both lay out three conditions for the “lawful killing” of a U.S. citizen abroad: 1) “An informed, high-level official of the U.S. government” has determined that said target is a capo with AQ or “an associated group” who poses an imminent threat; 2) capture of said target is infeasible; and 3) the operation would be consistent with broader rules of war. Both Holder’s speech and the white paper rely on the same broad conception of “imminence” that, ten years ago, all of hip D.C. considered Neocon sophistry designed to inaugurate endless war. Neither delimits what counts as an “associated group,” who counts as a “high-level official,” or how this official goes about making his determination for the purposes of 1). And neither does the real-live Office of Legal Counsel memo, complete with names, dates, and details, by which the president signed off on the killing of Awlaki and others. That document remains highly classified, but we can hope, at least, that it is better supported than the ersatz white paper, whose citations include a letter from President Obama to Congress, speeches from administration attorneys and intelligence officials such as Harold Koh and John Brennan, and even legal opinions from the Nixon-administration lawyers who brought you the invasion of Cambodia in 1970. We can hope, that is, that in the real OLC memo, the administration did better than marshaling support from me, myself, and Tricky Dick.

Some quarters of the mainstream media and progressive commentariat, gobbling scraps from the table, are treating the white paper as a fresh controversy. This makes perfect sense when one realizes that President Obama’s Bush-on-steroids approach to the relation between civil liberties and the War on Terror has passed largely unnoticed so long as higher-order progressive goals were being simultaneously advanced. When the drone war started, there was health-care reform to be passed. When it expanded to include American targets, there was the small matter of a presidential election that needed winning. And so on.

Look, waging war on a transnational, non-state actor is tricky, both operationally and ethically. And it requires some hard rethinking of old categories and distinctions. The white-paper analysis, for instance, relies in part on the argument that such a war can’t be confined to the country or countries where the enemy’s forces are concentrated (here, Afghanistan). It likewise relies on the argument that it is justifiable, in such a war, to treat an American who is actively abetting an enemy force as an enemy combatant, instead of as a citizen. Both arguments are plausible, but we have to balance them against our values and our Constitution, a process that requires the full and active participation of every branch of government and of the American people. It is hard to accomplish this when the administration claims it has found the authority to make itself judge, jury, and executioner, but it won’t tell us where. And harder still when the media can’t be bothered to notice until the next slow-news day.

— Daniel Foster is news editor of National Review Online.



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