As usually happens when a re-elected president begins a second term (and this is the first time since Jefferson-Madison-Monroe that we’ve had three consecutive two-term presidents) many of the people who served during the first term leave and new people get picked to replace them. Many of these replacements need to get confirmed by the US Senate, and it was during one of these recent Senate confirmation hearings that the subject of our nation’s use of unmanned drones was discussed, specifically their use against American citizens. It’s a very controversial subject. [NOTE: In the interests of full disclosure, I should point out that I am not a lawyer, nor do I play one on TV. I have never taken a law class nor attended a law school (though I used to fix copiers in one.) But none of those things should matter because, well, you'll see where I'm going with this.]
The nominee in question, John Brennan, appointed to replace Leon Panetta as the Director of the Central Intelligence Agency (or NAMBLA), was being asked about a report by NBC’s Michael Isikoff regarding a Department of Justice White Paper that laid out the legal reasoning behind why it was felt the president had the legal and constitutional authority to order the assassination of a US citizen in another part of the world. Not just any citizen. The person in question had to be “a senior operational leader of al-Qa’ida or an associated force of al-Qa’ida.” According to a footnote, “An associated force of al-Qa’ida includes a group that would qualify as a co-belligerent under the laws of war.” And by “senior operational leader” they mean “an al-Qa’ida leader actively engaged in planning operations to kill Americans.” You’ve been hearing a lot about this White Paper in the news lately, and that’s primarily because John Brennan was involved in the crafting of that policy. What you haven’t heard very much about is that none of this is really news. It turns out Attorney General Eric Holder pretty much laid out the same rationale in a speech given at Northwestern University back on March 5, 2012. But what is even less widely reported is the Attorney General’s stretching of the truth in making that case.
In his speech, AG Holder said
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.
He then goes on to discuss what constitutes “imminent threat” and whether a capture is “feasible.” I’m not particularly impressed with his justifications for their definitions, and I’m not the only one, but my main problem goes even deeper. All of this discussion is based on one overarching concept with which I fundamentally disagree: That this is a “war.”
A lot of the discussions frame the conflict with al-Qa’ida (I’ll use the same spelling consistently in this post even though I have used other spellings in other posts) as a “war” and the justifications of how we use lethal force against Americans all speak of what we’re allowed to do in a “wartime situation.” This is very dangerous thinking because once you decide that you are engaged in a “war,” the door opens to do all kinds of things you would not ordinarily be allowed to do if you were not at “war.” In the same sense that if the only thing you have is a hammer, everything starts to look like a nail, if you decide you are engaged in a war, everyone can look like an enemy soldier.
After long and careful thought, it is my very considered opinion that we should never have responded to the attacks of September 11, 2001, as if they were Acts of War, even though the perpetrators of those attacks considered them as such. I feel it was wrong of Congress to pass the Authorization for Use of Military Force, especially one so minimally but broadly stated. Under that AUMF, a president would have the authority to go after practically anyone because the decision on who to go after would be made solely by the president (as opposed to Congress or the Courts.). It says
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.
Anwar al-Awlaki, the American killed under the program discussed earlier, was not part of al-Qa’ida on September 11, nor did the al-Qa’ida in Yemen (or the Arabian Peninsula) exist at the time of the attacks. How they can be considered “co-belligerents” or even persons who aided the terrorist attacks confuses me. (This AUMF, BTW, was used as a justification for authority to invade Iraq even though they had nothing whatsoever to do with the 9/11 attacks, but let’s not even go there. The Congress foolishly left the determination of who we would attack to the president, and this authority was severely abused in the case of Iraq.) And yet the alleged authority to carry out these drone attacks against persons in Yemen supposedly stems from the AUMF. How can it? We have already strayed way too far in our excuses for why we are allowed to do what we’re doing, and it’s all because we have decided “we are a nation at war.” And we shouldn’t be.
Tragic and horrific though the 9/11 attacks may have been (and believe me, living about an hour and a half north of New York City, and knowing someone who lost relatives and friends in the attacks, and having personally witnessed the smoke rising from the rubble of the fallen Twin Towers, I know the horror of that day), they were still crimes, not Acts of War. And our nation’s response to them should have been appropriate to crimes. And you don’t send the full force of your military after people who broke the law. (After all, we are not a military police state.) Even in his speech, the Attorney General admitted that “we are not in a conventional war.” Do we have the right to defend ourselves against those who wish to do us harm? To a certain extent, yes, but that does not mean we can decide that we can send in our military to any country in the world and conduct war operations there. As much as some people would like to think it, we do not have the moral or legal authority to do whatever we want anywhere in world. I do not feel that terrorists should be treated like a nation state’s army. I believe that terrorists are criminals, guilty of committing, or planning to commit, horrible crimes, but they are not soldiers, and no matter how many guns they carry, they are not an army, and we shouldn’t wrap all our justifications for how we deal with them in the framework of a war. Because then there’s almost no end to what we feel justified in doing.
Usama bin Laden is dead. The hijackers who took over the planes that long ago day are dead. Khalid Sheikh Mohammed, the alleged mastermind of the plots, is in custody. Why are we still “at war”? It cannot be because there are still terrorists in the world. There will always be terrorists and it’s impossible to kill or capture them all. The very fact that we keep sending unmanned drones in to kill alleged terrorists almost guarantees that more frustrated people will decide to join a terrorist organization near them in retaliation. Violence begets more violence. Something that never ceases to amaze me is the willingness of our citizens to use such deadly force and tactics, despite the fact that so many of these same people profess to be Christians. Didn’t Jesus say that if someone should slap our cheek we should offer him the other? How can so many people call themselves Christians and yet defy one of the main tenets of their religion?
There will always be people wanting to do harm to our nation and its citizens. We can’t just decide to call them all “terrorists” and convince ourselves the AUMF applies. The use of terrorism has always been a problem, and with advances in technology the danger has always increased over time. You’re never going to be able to kill everyone who wishes to conduct acts of terrorism, so when do we stop sending our military all over the world to kill them? When does it all end?
This is our daily open thread. The opinions expressed in this post reflect those of the author and not necessarily those of other members of The Zoo. Feel free to discuss this topic or any other.