Wednesday, February 06, 2013

Targeted Killings Guidelines: Not As Bad As Some Are Saying

Drum quotes the following passage from Scott Lemieux:
Much of the coverage of the memo, including Isikoff's story, focuses on the justifications offered by the Obama administration for killing American citizens, including Anwar al-Awlaki and Samir Khan (two alleged Al Qaeda operatives killed by a 2011 airstrike in Yemen.) In some respects, this focus is misplaced. If military action is truly justified, then it can be exercised against American citizens (an American fighting for the Nazis on the battlefield would not have been entitled to due process.) Conversely, if military action is not justified, extrajudicial killings of non-Americans should hardly be less disturbing than the extrajudicial killing of an American citizen. The crucial question is whether the safeguards that determine when military action is justified are adequate.
That's my view, though it's probably a little on the cosmopolitan side for most folks. OTOH, we might see the emphasis on citizenship in the discussion as an attempt to focus out attention on a claim roughly like: if they can do this even to American citizens, imagine what they're permitted to do to non-citizens. (Hint: we don't have to imagine. The answer is: Gitmo.) But that's a kind of sloppy response. My sympathies on these points are firmly cosmopolitan, and I agree with Lemieux.

He goes on to cite Connor Friedersdorf, who is worrying about the "elastic" definition of "imminent," and making a shaky comparison to the misuse of the term by the Bush administration in the run-up to the Iraq war. Look, 'imminent' is not necessarily "elastic," but it is inherently vague. As Peirce points out, there's nothing inherently wrong with vagueness, so long as you're clear about what you're being vague about. Imminence is exactly the concept we need here, and we can't do without such concepts. (Try making good driving laws without concepts like recklessness.) In a statement of principles, this is just what we'd want. (Similarly for informed.) To make good laws, however, we do want some more specific guidelines to constrain governmental authority. For example, one might reasonably say that a threat is sufficiently imminent to warrant such action by the president if the threat will act too quickly to allow for judicial review.

Anyway, Lemieux is, I think, right to say that we're entitled to throttle back a bit on our out-freaking. That doesn't mean that calm concern and further attention is unwarranted, of course. But let's make sure that our concerns are sensible ones.


Anonymous Lewis Carroll said...


I guess my own discomfort with this policy the larger implicit premise that the 'War on Terror' is a concept that deserves the complete militarization it has received. Or what Gary Hart says:

"The drone assassination policy is the product of the confluence of the notion of preemption, terrorism as war not crime, and a mistaken notion that "national security" can be defined so broadly that any action is justified."

in this piece:

So while I can understand why say, "an American fighting for the Nazis on the battlefield would not have been entitled to due process", and agree with that, I see a big lacuna in the argument in that Al Qaeda =/= Nazis.

Other complications are the implicit assumption that the entire planet is the 'battlfield' and 'imminent' isn't the only important term that has been only vaguely defined. How about 'terrorism' itself?

As a thought experiment, would you be comfortable with a 'high-level' Administration official making a non-externally reviewable call to take out a guy holed up somewhere in Texas with a load of weaponry and who, based on "credible information" is planning a large-scale attack to make a political statement?

And before you respond that he is within reach of domestic authorities because he is on our soil, remember that we seem to have the complete cooperation of the domestic authorities in Yemen as well, and yet we have relied to a great extent on drone attacks there.

So I guess my problem is that I see too much reliance on the discretion of the executive branch, and not enough durable law based on specifics about geography, who the enemy is, what constitutes a potential terrorist etc. I like Obama, but I'm just not comfortable with the over-militarization of the so-called War on Terror which makes the possibility of abuse much more likely. As Hart wrote, our history is not encouraging.

1:48 PM  
Anonymous Lewis Carroll said...

And I should mention Winston that I don't mean to imply that you are accepting the Administration's positions uncritically and taking a firm position of defending them automatically, especially since you say that "That doesn't mean that calm concern and further attention is unwarranted, of course."

But I do think we should be more wary of the dangers of legal vagueness in this area than your post seems to imply.

2:00 PM  
Blogger Winston Smith said...

Yeah, man, I feel ya. I'm actually right there with you on this.

I really did only mean that it's not quite as bad--or at least not for exactly the reasons--as some are saying.

5:15 PM  
Blogger Dark Avenger said...

Winston, history has shown that when one side starts treating the other side as 'below the law', it rarely turns out well for either side.

DUKAT Really. I wonder what else we have in common.

SISKO Very little, I imagine.

DUKAT (laughs)Other than the fact that you have my office.
(a beat)

What's going to happen to your prisoners?

SISKO They'll be tried for their crimes under the Federation Uniform Code of Justice.

DUKAT And if they're found innocent?

SISKO I doubt they will be, but if they are, they'll be set free.

DUKAT How barbaric. On Cardassia, the verdict is always known before the trial begins. And it's always the same.

SISKO In that case, why bother with a trial at all?

DUKAT Because the people demand it. They enjoy watching justice triumph over evil. Every time. They find it comforting.

SISKO Isn't there a chance you might try an innocent man by mistake?

DUKAT Cardassians don't make mistakes.

SISKO I'll have to remember that.

6:24 PM  

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