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The DOJ Memo on why killing is not always prohibited

Published by marco on

NBC has released a Department of Justice (DOJ) memo titled DOJ White Paper: Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force by DOJ (MSNBC). As you read through the document (or just the citations below), if you find yourself being swayed by the DOJ’s seductive logic, it is a useful exercise to turn the parties around: instead of the US claiming the rights detailed in this document, imagine that it were Israel or Russia or Iran. This is what the rest of the world does when confronted with such brashness, such arrogance, such utter fanaticism. The memo evinces a mad desire to convince the very people that the U.S. slays that the U.S. is doing it for the best of reasons, with the highest of purpose, and supported by the most ironclad of legal reasoning.

Love thy executor

This is not new. For some reason, those in power want not just to wield nearly unimaginable and unstoppable power over their subjects, but want their love as well. It is one of the most reliable ways of preventing revolution. This document from the DOJ was supposedly leaked. It is more likely that its contents were floated among what passes in the U.S. for the intelligentsia to see how it would be received. In the vernacular, the Obama administration threw it up on the wall to see what sticks.

This history of this behavior is well-documented and discussed in the article The Paranoia of the Superrich and Superpowerful: Washington’s Dilemma on a “Lost” Planet by Noam Chomsky & David Barsamian (TomDispatch), this attitude is not at all new. From the article,

“The Clinton doctrine was that the United States is entitled to resort to unilateral force to ensure ‘uninhibited access to key markets, energy supplies, and strategic resources.’ […] The belief in that entitlement continues right to the present. It’s also part of the intellectual culture.”

As detailed in the recent Obama DOJ memo, the only kind of legal killing discussed is that by the U.S. And the majority of the memo deals with legal justifications for killing U.S. citizens, acts for which it is deemed necessary to make more of an effort at explanation. That it is legal for the U.S. to kill any and all other non-U.S.-citizens is so obvious as to need no discussion.

For example, when some commentators—Chomsky foremost among them—thought that even an Osama bin Laden deserved a trial and due process, that “[i]f you apprehend a suspect, he’s a suspect until proven guilty. He should be brought to trial.” The well-trained U.S. intelligentsia deemed this attitude “amazingly naive”, as detailed in the following passage.

“Matthew Yglesias, a well-known and highly respected left liberal commentator, […] said that ‘one of the main functions of the international institutional order is precisely to legitimate the use of deadly military force by western powers.’ Of course, he didn’t mean Norway. He meant the United States. So the principle on which the international system is based is that the United States is entitled to use force at will.”

Chomsky and Barsamian covered many more examples of very well-respected members of the U.S. intellectual elite from both sides of the political spectrum being equally morally corrupt and thoroughly abasing themselves before what they somehow convinced themselves to be unquestionable U.S. hegemony.[1]

The DOJ Memo justifying murder of U.S. citizens

What follows is a series of excerpts with my stream-of-consciousness notes that I took as I was reading the document. The citations were transcribed by hand since the PDF was composed of only a series of scanned pages and was obfuscated with MSNBC watermarks.

Who can be legally killed?

One of the first parts of the document establishes to whom the document applies:

“The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future […]”

This assurance that extra-judicial killing applies only to the worst of the worst—i.e. an American “who is a senior, operational leader of al-Qa’ida or an associated force of al-Qa’ida”—wouldn’t last long, as the DOJ would soon open up the memo’s applicability by weakening all of the conditions described above, utterly obviating them from a legal perspective.

So far, though, the memo still doesn’t quite cover Anwar al Awlaki.

“Targeting a member of an enemy force who poses an imminent threat of violent attack to the United States is not unlawful.”

Well, it used to be, didn’t it? Now, apparently, anytime you feel like killing someone, you just have to declare war on them and their annihilation is legal. Or, as we’ll see later, just have Congress give the Executive the power to declare a permanent war.

They still didn’t feel that Anwar al Awlaki’s murder was covered yet. Let’s up the ante:

“It is a lawful act of national defense.”

Killing an American abroad who posed a potential if very vague threat—even in faraway Yemen—counts as an act of national defense. It kind of makes you wonder whether the people writing this horseshit even believe it. Or do they chuckle? I almost hope that they chuckled while they were writing this. I’m much more comfortable with evil bastards who know they’re evil bastards than with those who are convinced that they are working on the side of goodness and light. (See footnotes below for some startling examples.)

“Nor would it violate otherwise applicable federal laws barring unlawful killing in Title 18 or the assassination an in Executive Order No. 12333.”

Of course it doesn’t. Because you need it not to. So what’s the reason that it doesn’t conflict with all of these things? The message is: because we the mighty DOJ says it doesn’t. So sit down and shut up while the grownups do the dirty work you’re too much of a chickenshit to take care of.

To be fair, though, if you accept the argumentation, the DOJ is definitely getting warmer on justifying the murder of Anwar al Awlaki.

Where can people be killed?

“Moreover, a lethal operation in a foreign nation would be consistent with international legal principles of sovereignty and neutrality if it were conducted, for example, with the consent of the host nation’s government or after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted. (Emphasis added.)”

Well, we’ve cleared up now that it was legal to nail Anwar al Awlaki in Yemen because they clearly weren’t going to do it.

Does that mean that Cuba can finally legally drone-strike Orlando Bosch? Oh, he’s already dead? Was it Cuba who killed him? He died of old age in a Miami hospital? Oh.

Does it mean that Yemeni soldiers are also allowed to hunt and kill the drone operators who are hunting and killing people in Yemen? Those are terrorist attacks executed by the U.S. on Yemen, no? By these self-same rules? No? I suppose it would be useful to review the initial few paragraphs of this article as a reminder as to who runs the world—and who makes the rules.

But just to continue the thought experiment, let’s assume that at least part of the Yemeni government is on board. Would those members of the Yemeni government who took umbrage to U.S. attacks also be justified in writing up a document allowing them to kill both Yemenis and Americans and anyone else in the U.S. who poses an “imminent threat of violent attack to [Yemen]”? What would the U.S. think of such an attack? Would they accept its legality after Yemen explained that Yemen had only carried out the attacks after establishing to their own satisfaction that the U.S. was “unable or unwilling to suppress the threat posed by the individual targeted”?

“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.”

Before you ask the obvious question—why would the crystal-clear 4th Amendment not apply?—the answer is—say it with me—because we say so.

“[…] against a senior operational leader of al-Qa’ida or its associated forces who poses an imminent threat of violent attack against the United States. (Emphasis added.)”

If you thought not being a senior operational leader of al-Qa’ida would protect you (as suggested in the first paragraphs of the memo), think again. To establish a baseline for what “imminence” means in the U.S., remember that this is the country that believed that an attack by Iraq was imminent. The standard of proof for imminence of an attack is pretty f&$#ing low.

Also, “the United States” is pretty much defined as anywhere where Americans live: bases, embassies, diplomat’s houses. Going by the logic cited above, I can only assume that the United States is pretty much wherever the f%#$ we say it is. That is, anyway, how I would translate the declaration that “the AUMF [Authorization of Military Force] itself does not set forth an express geographic limitation” and the “Common Article 3 of the Geneva Conventions” says the conflict is not a “clash between nations” and thus has no jurisdiction.

That Al-Qa’ida has no nation makes the U.S. think it can magically make the Geneva Conventions go away. The U.S. is holding all of the guns, so it would be behoove you to go along. As mentioned above, though, the more interesting thing is this need, this compunction to get the consent of the oppressed.

The paper cites many cases of precedence, most of quite recent provenance (2004, 2006, several from 2010, 2011), illustrating quite clearly that the main logic is newer and based on laws made up just in the last couple of administrations. They use a lot of sophistry and legalese but it boils down to: we want this to be legal, so we will make it legal.

As for the case when “operations [are executed] in a new nation”, well, then it’s perfectly legal and logical—it’s common sense!—to spread the conflict to that nation as well, all without asking them. The best part is the precedent: Vietnam! That’s right, the war theree spread to Laos and Cambodia—spread by the U.S., but that’s neither here nor there—and the U.S. was not prosecuted for it so that established the legal precedent that war can spread. Q.E.D.

The memo doesn’t even beat around the bush here:

“[…] if a neutral state has been unable for any reason to prevent violations of its neutrality by the troops of one belligerent using its territory as a base of operations, the other belligerent has historically been justified in attacking those enemy forces in that state.”

Sounds like taking the Afghan conflict into Pakistan is also legal. What were the odds? I know the answer to this question, but can Iraq and Afghanistan now attack the U.S. legally for belligerence? I can’t imagine that it would work that way.

Who can order a killing?

“In view of the interests and practical considerations, the United States would be able to use lethal force against a U.S. citizen, who is located outside the United States and is an operational leader continually planning attacks against U.S. persons and interests, in at least the following circumstances: (1) where an informed, high-level official of the U.S. government has determined that […]”

The “at least” means that the listed circumstances would be sufficient, but serve only as an example and other situations not listed would also fall under this rule. Presumably the applicability would be decided on an ad-hoc basis—presumably by “an informed, high-level official”. That’s pretty damned open-ended as far as who can be targeted—with no due process, the burden of proof for providing that an individual is “continually planning attacks” is exactly zero—and who can authorize it. How many thousands of “informed, high-level” people are there in the U.S. government? There are almost a million people with top-secret security clearance. Do they all get to act on this law?

What about the Constitution?

“In these circumstances, the “realities” of the conflict and the weight of the government’s interest[s…] are such that the Constitution would not require the government to provide further process to such a U.S. citizen.”

No trial for you. No trial for anyone. The nature of the undefined conflict has forced the U.S. into this very uncomfortable and unfortunate corner. We all just have to make the best of it. You will be doing so in itty-bitty pieces sprayed all over the neighborhood in which you and your family used to live.

What about the requirement that you have to be “planning attacks”? That part is addressed in the next section, pleading again that common sense and the “nature of the conflict” dictate that the U.S. cannot “refrain from action until preparations for an attack are concluded.” Not only does the attack never have to take place, neither would any or a majority of the planning.

Essentially, if an “informed, high-level” U.S. government official thinks you may be thinking dangerous thoughts about the U.S. and orders a drone strike, their ass would be amply covered by this paper. How will we be able to evaluate the actual imminence of these theoretical attacks? There isn’t really any way to do that doesn’t involve what seems like a lot of work, so why even try? How can we tell the difference between actual, Armageddon-asteroid–level imminence and the crazed imaginings of an American zealot? You can’t but rest assured that you will either be much safer for it—or dead, depending on your circumstances.

The paper confirms this in stating that “the threat posed by Al-Qa’ida and its associated forces demands a broader concept of imminence in judging when a person continually planning terror attacks […]” Everything after that doesn’t matter because the gist is that the leeway granted to those acting on this rule/law/paper would be “broad”—a ten-lane highway, most likely.

The paper goes on to note that the high-level official would have, of course, to abort an operation if “anticipated civilian casualties would be excessive in relation to the anticipated military advantage. This is followed by a long section softening the Hague convention against treachery and further reducing Fourth Amendment protections to, essentially, nothing.

If no proof or process is required for execution of sentence, then it can be applied to anyone, with retroactive justification. That’s pretty much all there is to it.

The language is fancier and I’m sure the people who wrote it are just in love with what they see as their own brilliance in dodging loopholes, but we don’t have to accept it. They are trying to make state murder legal, which just won’t wash. Or it shouldn’t, at any rate.

What about the courts? Precedent? Can’t they help?

The authors of this memo know this and try to justify that as well, by stating that “under the circumstances described in this paper, there exists no appropriate judicial forum to evaluate these constitutional considerations.” Isn’t that convenient? If we accept that statement, then we have to accept that the prior pages cannot be adjudicated and must be accepted a priori. The paper arrogates all power to the Executive and then cautions the Judiciary against even thinking about interfering because it would endanger the nation. Or, in their words,

“[w]ere a court to intervene, it might be required to issue an ex ante command to the President […a]nd judicial enforcement of such orders would require the Court to supervise inherently predictive judgments by the President.”

The court can’t interfere because then it would be judging the President. That is, the President can’t even come up with evidence for even the shadow of due process, so how will the court manage to do it? The President has decided that a person needs killin’ and who is the court to even question that? And if they were allowed to interfere, they might try to put the kibosh on the killin’ and then America would be unsafe. Does the court want millions of American lives on its hands? No? Then sit the f&$k down and shut the f%&k up while the real men do some killin’.

And then I swear to God that the end of page 10 and most of page 11 redefines murder as OK when it’s justified. Manslaughter laws, international unlawful-killing laws, murder laws—they all go out the window, one by one, in the inexorable march toward the natural conclusion that “we know who needs killin’ and we ain’t got time for proof”. Since the authors had already eliminated due process on page one, this section—while gob-smackingly amoral—is mostly moot. It was likely more inspired more by some lingering feelings of humanity and conscience than by any real legal need.

Are there any limits whatsoever?

There is apparently a limit. Shockingly, on page 12, the paper admits that “[t]he public authority justification would not excuse all conduct of public officials from all criminal prohibitions”. So, they seem to have stopped just short of enabling “God mode”.[2] They do, however arrogate to themselves—the public authority—the right to acts that would not be allowed to the hoi polloi (i.e. the “persons not acting pursuant to public authority”). It just “would not make sense” for “Congress […] to criminalize […] activities undertaken by public officials”. The goose knows what it’s doing; the gander does not.

Then they finally slip up and put in an analogy:

“federal criminal statutes should be construed to exclude authorized conduct of public officers where such a reading “would work obvious absurdity as, for example, the application of a speed law to a policeman pursuing a criminal […]”

To apply the analogy back to the situation being protected by this memo: just as a cop can break the speed limit to catch a speeder, the executive is allowed to kill people without due process that they suspect of wanting to kill others without due process. Even if they haven’t actually done so. It’s called preventative defense.

“Nor is there anything in the text or legislative history of section 1119 [prohibits unlawful killing; ed.] itself to suggest that Congress intended to abrogate or otherwise affect the availability of this traditional justification for killings.”

Surely when Congress outlawed unlawful killing, they didn’t mean us, did they? Just those other guys. The bad guys.

Because: perpetual war

This would all be utter insanity if it was a post on a right-wing blog. It is not. It is a memo by the U.S. Department of Justice. It’s not law, though. There are a tremendous number of cases cited, all leading to the foregone conclusion. They may, in fact, logically provide justification. The law of the U.S. may, at this point, be such a steaming pile of shit that it literally allows some people to kill others without justification or due process. But, if that’s the case, rather than just accepting it, we instead have a lot of laws to overturn. Starting with this one,

“The United States is currently in the midst of a congressionally authorized armed conflict with al-Qa’ida and associated forces, and may act in national self-defense […]”

The bar for providing that an action is “in the interests of national defense” has historically been so low as to be nearly non-existent. And this one congressional authorization—the AUMF (Authorization of Military Force)—seems to have put the country in a perpetual state of war during which wartime rules apply—and those are, essentially, that the strongest gets his way.

And, the war cannot end because “mere suspension of combat is insufficient” for a former member of Al-Qa’ida to claim protection under Geneva Conventions Common Article 3. Simply “hav[ing] laid down their arms” or being injured hors de combat is not sufficient for the U.S. to not have the right to kill that person. Once the U.S. has suspicion, the only way to avoid being justifiably and legally killed is to die, apparently.

So, extra-judicial killing is required because Al-Qa’ida—insofar as it actually even exists as an entity—is not a state and cannot be attacked. Conflict can spread to any country in which we claim that Al-Qa’ida is hiding and it will be their fault for hiding there. And, finally, there’s no way for anyone who we say is in Al-Qa’ida to either disavow it or to stop being a member.

Even for those who’ve never actually done anything to the U.S., this paper would allow the U.S. to continue to target that person if we suspect that they have bad thoughts. They can’t prove that they don’t—no due process, remember? The only alternative is to give yourself up to the welcoming arms of Guantànamo or kill yourself. The U.S. would be satisfied with either.

Go ahead: make their day

“This paper does not attempt to determine the minimum requirements necessary to render such an operation lawful. […] it concludes only that the stated conditions would be sufficient to make lawful a lethal operation.”

The paper doesn’t acknowledge that the Executive is in any way restricted to applying this logic only to Al-Qa’ida members either. It has demonstrated to the satisfaction of its authors that it is legal to kill those unsavory types—but that the legal scaffolding will very well apply to any other enemies of the state.

Much of the reasoning in this memo rests on the original Congressional AUMF (Authorization of Military Force) which was, apparently, a watershed moment in U.S. history in that it utterly eradicated checks and balances and instituted a monarchy. Oops.

Of course, if we refuse to accept that that happened, we can also ignore the utterly mad reasoning of this memo. Be aware, however, that the Obama administration will not ignore it.

So you’ll be right, but you’ll be dead. You will have been right, though, so that’s something.


[1]

The two citations that stood out in this respect were the following two examples, the first discussing the idea that the U.S. yearns for democracy in any realistic way.

“If you look at the record, the yearning for democracy is a bad joke. That’s even recognized by leading scholars, though they don’t put it this way. One of the major scholars on so-called democracy promotion is Thomas Carothers, who is pretty conservative and highly regarded — a neo-Reaganite, not a flaming liberal. He worked in Reagan’s State Department and has several books reviewing the course of democracy promotion, which he takes very seriously. He says, yes, this is a deep-seated American ideal, but it has a funny history. The history is that every U.S. administration is “schizophrenic.” They support democracy only if it conforms to certain strategic and economic interests. He describes this as a strange pathology, as if the United States needed psychiatric treatment or something. Of course, there’s another interpretation, but one that can’t come to mind if you’re a well-educated, properly behaved intellectual.”

The brainwashing is so deeply ingrained that, even when the fact that the U.S. never supports actual democracy—in one case after another after another—they are all regarded as anomalies, aberrations to what is perceived as the baseline desire for democracy. The next example is in the same vein, with the “transcendent” purpose of the U.S. taken as a given—a fact whose truth is borne out only my hundreds of claims but isn’t borne out by any historical evidence whatsoever.

“The main founder of contemporary IR [international relations] theory, Hans Morgenthau, was really quite a decent person, one of the very few political scientists and international affairs specialists to criticize the Vietnam War on moral, not tactical, grounds. Very rare. He wrote a book called The Purpose of American Politics. You already know what’s coming. Other countries don’t have purposes. The purpose of America, on the other hand, is “transcendent”: to bring freedom and justice to the rest of the world. But he’s a good scholar, like Carothers. So he went through the record. He said, when you study the record, it looks as if the United States hasn’t lived up to its transcendent purpose. But then he says, to criticize our transcendent purpose “is to fall into the error of atheism, which denies the validity of religion on similar grounds” — which is a good comparison. It’s a deeply entrenched religious belief. It’s so deep that it’s going to be hard to disentangle it. And if anyone questions that, it leads to near hysteria and often to charges of anti-Americanism or “hating America” — interesting concepts that don’t exist in democratic societies, only in totalitarian societies and here, where they’re just taken for granted.”

For Americans, U.S. superiority and goodness is a matter of faith.

[2] If you’re not into video games, then just move on.