We are no longer the good guys fighting the bad guys. We are the right guys fighting the wrong guys. We are right about democracy, women’s’ rights, free speech, blah, blah blah, and Al-Qaeda, the Taliban, jihadists, in general are wrong. But we cannot claim to be good, compared with them; we only can claim, perhaps, to be less bad. They blow up innocent civilians on purpose; we blow them up accidentally, while we’re targeting persons we decide are not innocent. Collateral damage is our euphemism for this crime; martyrdom is theirs.
Both of us have our good points, too. It might even be argued that, just as they are better at being evil than we are, they also are a little better at being good. They do not have the means that we have, but when they do good works – food distribution, charity, health care – they probably get more bang for their bucks than we do, with our many-layered, administration-heavy delivery systems.
Another difference between the Islamists and we democratists (to coin a word) – is that they are more consistently true to their principles than we are. This is not necessarily a good trait; the definition of a fanatic might be “someone whose consistency to principle overrides all other considerations.” But our alliances with dictators, and monarchs like the Sauds who claim to rule by divine right, make our protestations of democratic ideals seem somewhat feeble, our detention and torture of prisoners, and our enabling the security services of other countries to torture prisoners detained by us, make our stands on human rights abuse seem pretty empty, and our bland acceptance of the sixty-year Israeli occupation of Palestine and our refusal to join an international war crimes court and to sign onto global pollution control treaties makes our protestations of international solidarity seem pretty hypocritical.
And then there are the drones, our use of which might almost be described as blithe.
The targeted assassination of Al-Qaeda operative, Anwar al-Aulaqi, which involved the collateral killing of jihadist journalist, Samir ibn Zafar Khan, and the killing, in a separate drone attack, of al-Aulaqi’s 16 year old son, also collateral damage, raised a grave constitutional question, since all three were American citizens. (It is not unlikely that other American citizens, more anonymous ones, have been killed by drones over the years.)
According to the Fifth Amendment, “no person shall be. . . deprived of life, liberty or property without due process of law.”
An Obama administration white paper justifying the extrajudicial killing of American citizens recently was disclosed. As a legal document it should stand as an insult to law school professors everywhere. At least the convolutions of John Yoo, in his memo justifying the use of torture by the Bush administration, show that Yoo was aware that some fairly fancy legal footwork was going to be needed. The extrajudicial killing white paper, prepared by so-far anonymous authors in the Justice Department, is full of vagaries and inconsistencies which even a journalist, much less a lawyer, would be expected to avoid.
Here is the meat of the white paper, setting out three criteria to be filled before the assassination of a US citizen can be approved.
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 targeted individual poses an imminent threat of violent attack against the United States; (2) where a capture operation would be infeasible—and where those conducting the operation continue to monitor whether capture becomes feasible; and (3) where such an operation would be conducted consistent with applicable law of war principles. In these circumstances, the “realities” of the conflict and the weight of the government’s interest in protecting its citizens from an imminent attack are such that the Constitution would not require the government to provide further process to such a U.S. citizen before using lethal force.
Well, first of all, who are “high-level officials of the U. S. government?” The wife of the head of New York City’s IRS office might describe her husband as such. The phrase has no meaning whatsoever. Narrowing it down to “cabinet-level or above” might have gone some way toward correcting the defect, but whoever wrote this thing obviously preferred to keep the question of who “the decider” would be open-ended. And don’t you just love the neo-conesque quotation marks around the word “realities?”
Then, “imminent.” You know what imminent means, I know what it means. However, according to the white paper, “the condition that an operational leader presents 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.”
A decision maker determining whether an al-Qa’ida operational leader presents an imminent threat of violent attack against the United States must take into account that certain members of al-Qa’ida (including any potential target of lethal force) are continually plotting attacks against the United States; that al-Qa’ida would engage in such attacks regularly to the extent it were able to do so; that the U.S. government may not be aware of all al-Qa’ida plots as they are developing and thus cannot be confident that none is about to occur; and that, in light of these predicates, the nation may have a limited window of opportunity within which to strike in a matter that both has a high likelihood of success and reduces the probability of American casualties.
How’s that for begging the question? Or, as the Brits say, for taking a piss? Basically, the above paragraph says, we are justified in killing anyone we believe is a member of al-Qaida. Period.
And how’s this for fuzzy thinking?
Regarding the feasibility of capture, capture would not be feasible if it could not be physically effectuated during the relevant window of opportunity [or if the relevant window of opportunity] or if the relevant country were to decline to consent to a capture operation. Other factors such as undue risk to U.S. personnel conducting a potential capture operation also could be relevant. Feasibility would be highly fact-specific and potentially time-sensitive intensity.
First of all, these passages are from what purports to be a transcript of the white paper, but I assume that the erroneous repetition, which I’ve bracketed, is the fault of the transcriber. But. . . the whole thing has so much of an off-the-cuff quality, that I wouldn’t be surprised if it had only been glanced over once or twice, instead of being carefully proofread, before it was sent around to the clandestine movers and shakers whose actions it was meant to justify.
What does “window of opportunity” mean? Does it mean the 15 minutes that the target’s vehicle is between one village and another, or the 15 days that the target is in a certain area? And what does “relevant” mean? It implies that there is an irrelevant window of opportunity. And “relevant country?” Why not “the government of the country in which the operation is to take place?” “Relevant” is a lazy, meaningless word which only indicates that this white paper – it would be better to call it a gray paper – was dashed off because “well, I guess we have to have something down in writing.” The last sentence of the above paragraph – which again, may have been poorly transcribed, but probably not – has no meaning whatsoever. “Feasibility would be highly fact-specific and potentially time-sensitive intensity.”
This is getting boring, I’m afraid. But just a couple more bits.
It is a premise here that any such lethal operation by the United States would comply with the four fundamental law-of-war principles governing the use of force: necessity, distinction, proportionality, and humanity (the avoidance of unnecessary suffering). . .
For example, it would not be consistent with those principles to continue an operation if anticipated civilian casualties would be excessive in relation to the anticipated military advantage. Chairman of the Joint Chiefs of Staff Instruction 5810.01D, Implementation of the DoD Law of War Program, ¶ 4.a, at 1 (Apr. 30, 2010).
It sounds as if the referenced JCS Instruction 5810.01D spells out how to determine how much collateral damage would be justified in a specific operation. Not at all. Thanks to Google, Instruction 5810.01D is available on-line as a PDF file. Signed by General Abizaid in 2002, before the lethal drone program was underway, it deals with the reporting and investigation of incidents which may have violated the law of war. Again, typical for a phony legal finding, it gives an authoritative reference to a specific document that turns out to be related only vaguely to the issue under discussion.
And, finally:
Under this framework, the United States would also be required to accept a surrender if it were feasible to do so.
I can imagine some ragheads, faced with an oncoming drone, running out of their hovel, throwing down their weapons, and raising their arms above their heads. Would the drone operator in his Quonset hut in New Mexico call his superior officer first before determining that it was not “feasible” to accept their surrender?
I have deliberately ignored the fact that this entire justification only deals with the assassination of United States citizens. If there is a written “legal” justification for assassinating foreigners, it has not yet been revealed.
As Bishop Tutu wrote to the New York Times after this white paper was revealed,
Do the United States and its people really want to tell those of us who live in the rest of the world that our lives are not of the same value as yours? That President Obama can sign off on a decision to kill us with less worry about judicial scrutiny than if the target is an American? Would your Supreme Court really want to tell humankind that we, like the slave Dred Scott in the 19th century, are not as human as you are? I cannot believe it.
I used to say of apartheid that it dehumanized its perpetrators as much as, if not more than, its victims. Your response as a society to Osama bin Laden and his followers threatens to undermine your moral standards and your humanity.
Gary Younge has a good piece in the latest Guardian Weekly which points out the double-standard in Obama's bewailing the death to gun violence of a teenager in Chicago while “maintaining a stony silence over the murder of Abdulrahman al-Awlaki, the 16-year-old American born in Denver who was killed by a drone in Yemen in 2011.”
Here’s the link to the Younge piece, although it may only have been accessible to me because I’m a subscriber. I’m sure it can be dug up somewhere on the web, though. Its title is: "Barack Obama is pushing gun control at home, but he's a killer abroad".
http://www.guardian.co.uk/commentisfree/2013/feb/10/obama-gun-control-drones-killer
P. S. I just finished reading a great biography of James Baldwin by David Leeming. Bishop Tutu's remark that apartheid "dehumanized its perpetrators as much as, if not more than, its victims" is the baseline of Baldwin's position on racism. He often said that racism does more harm to white Americans than to black Americans because it dehumanizes them, arresting their capacity to empathize with others.
Both of us have our good points, too. It might even be argued that, just as they are better at being evil than we are, they also are a little better at being good. They do not have the means that we have, but when they do good works – food distribution, charity, health care – they probably get more bang for their bucks than we do, with our many-layered, administration-heavy delivery systems.
Another difference between the Islamists and we democratists (to coin a word) – is that they are more consistently true to their principles than we are. This is not necessarily a good trait; the definition of a fanatic might be “someone whose consistency to principle overrides all other considerations.” But our alliances with dictators, and monarchs like the Sauds who claim to rule by divine right, make our protestations of democratic ideals seem somewhat feeble, our detention and torture of prisoners, and our enabling the security services of other countries to torture prisoners detained by us, make our stands on human rights abuse seem pretty empty, and our bland acceptance of the sixty-year Israeli occupation of Palestine and our refusal to join an international war crimes court and to sign onto global pollution control treaties makes our protestations of international solidarity seem pretty hypocritical.
And then there are the drones, our use of which might almost be described as blithe.
The targeted assassination of Al-Qaeda operative, Anwar al-Aulaqi, which involved the collateral killing of jihadist journalist, Samir ibn Zafar Khan, and the killing, in a separate drone attack, of al-Aulaqi’s 16 year old son, also collateral damage, raised a grave constitutional question, since all three were American citizens. (It is not unlikely that other American citizens, more anonymous ones, have been killed by drones over the years.)
According to the Fifth Amendment, “no person shall be. . . deprived of life, liberty or property without due process of law.”
An Obama administration white paper justifying the extrajudicial killing of American citizens recently was disclosed. As a legal document it should stand as an insult to law school professors everywhere. At least the convolutions of John Yoo, in his memo justifying the use of torture by the Bush administration, show that Yoo was aware that some fairly fancy legal footwork was going to be needed. The extrajudicial killing white paper, prepared by so-far anonymous authors in the Justice Department, is full of vagaries and inconsistencies which even a journalist, much less a lawyer, would be expected to avoid.
Here is the meat of the white paper, setting out three criteria to be filled before the assassination of a US citizen can be approved.
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 targeted individual poses an imminent threat of violent attack against the United States; (2) where a capture operation would be infeasible—and where those conducting the operation continue to monitor whether capture becomes feasible; and (3) where such an operation would be conducted consistent with applicable law of war principles. In these circumstances, the “realities” of the conflict and the weight of the government’s interest in protecting its citizens from an imminent attack are such that the Constitution would not require the government to provide further process to such a U.S. citizen before using lethal force.
Well, first of all, who are “high-level officials of the U. S. government?” The wife of the head of New York City’s IRS office might describe her husband as such. The phrase has no meaning whatsoever. Narrowing it down to “cabinet-level or above” might have gone some way toward correcting the defect, but whoever wrote this thing obviously preferred to keep the question of who “the decider” would be open-ended. And don’t you just love the neo-conesque quotation marks around the word “realities?”
Then, “imminent.” You know what imminent means, I know what it means. However, according to the white paper, “the condition that an operational leader presents 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.”
A decision maker determining whether an al-Qa’ida operational leader presents an imminent threat of violent attack against the United States must take into account that certain members of al-Qa’ida (including any potential target of lethal force) are continually plotting attacks against the United States; that al-Qa’ida would engage in such attacks regularly to the extent it were able to do so; that the U.S. government may not be aware of all al-Qa’ida plots as they are developing and thus cannot be confident that none is about to occur; and that, in light of these predicates, the nation may have a limited window of opportunity within which to strike in a matter that both has a high likelihood of success and reduces the probability of American casualties.
How’s that for begging the question? Or, as the Brits say, for taking a piss? Basically, the above paragraph says, we are justified in killing anyone we believe is a member of al-Qaida. Period.
And how’s this for fuzzy thinking?
Regarding the feasibility of capture, capture would not be feasible if it could not be physically effectuated during the relevant window of opportunity [or if the relevant window of opportunity] or if the relevant country were to decline to consent to a capture operation. Other factors such as undue risk to U.S. personnel conducting a potential capture operation also could be relevant. Feasibility would be highly fact-specific and potentially time-sensitive intensity.
First of all, these passages are from what purports to be a transcript of the white paper, but I assume that the erroneous repetition, which I’ve bracketed, is the fault of the transcriber. But. . . the whole thing has so much of an off-the-cuff quality, that I wouldn’t be surprised if it had only been glanced over once or twice, instead of being carefully proofread, before it was sent around to the clandestine movers and shakers whose actions it was meant to justify.
What does “window of opportunity” mean? Does it mean the 15 minutes that the target’s vehicle is between one village and another, or the 15 days that the target is in a certain area? And what does “relevant” mean? It implies that there is an irrelevant window of opportunity. And “relevant country?” Why not “the government of the country in which the operation is to take place?” “Relevant” is a lazy, meaningless word which only indicates that this white paper – it would be better to call it a gray paper – was dashed off because “well, I guess we have to have something down in writing.” The last sentence of the above paragraph – which again, may have been poorly transcribed, but probably not – has no meaning whatsoever. “Feasibility would be highly fact-specific and potentially time-sensitive intensity.”
This is getting boring, I’m afraid. But just a couple more bits.
It is a premise here that any such lethal operation by the United States would comply with the four fundamental law-of-war principles governing the use of force: necessity, distinction, proportionality, and humanity (the avoidance of unnecessary suffering). . .
For example, it would not be consistent with those principles to continue an operation if anticipated civilian casualties would be excessive in relation to the anticipated military advantage. Chairman of the Joint Chiefs of Staff Instruction 5810.01D, Implementation of the DoD Law of War Program, ¶ 4.a, at 1 (Apr. 30, 2010).
It sounds as if the referenced JCS Instruction 5810.01D spells out how to determine how much collateral damage would be justified in a specific operation. Not at all. Thanks to Google, Instruction 5810.01D is available on-line as a PDF file. Signed by General Abizaid in 2002, before the lethal drone program was underway, it deals with the reporting and investigation of incidents which may have violated the law of war. Again, typical for a phony legal finding, it gives an authoritative reference to a specific document that turns out to be related only vaguely to the issue under discussion.
And, finally:
Under this framework, the United States would also be required to accept a surrender if it were feasible to do so.
I can imagine some ragheads, faced with an oncoming drone, running out of their hovel, throwing down their weapons, and raising their arms above their heads. Would the drone operator in his Quonset hut in New Mexico call his superior officer first before determining that it was not “feasible” to accept their surrender?
I have deliberately ignored the fact that this entire justification only deals with the assassination of United States citizens. If there is a written “legal” justification for assassinating foreigners, it has not yet been revealed.
As Bishop Tutu wrote to the New York Times after this white paper was revealed,
Do the United States and its people really want to tell those of us who live in the rest of the world that our lives are not of the same value as yours? That President Obama can sign off on a decision to kill us with less worry about judicial scrutiny than if the target is an American? Would your Supreme Court really want to tell humankind that we, like the slave Dred Scott in the 19th century, are not as human as you are? I cannot believe it.
I used to say of apartheid that it dehumanized its perpetrators as much as, if not more than, its victims. Your response as a society to Osama bin Laden and his followers threatens to undermine your moral standards and your humanity.
Gary Younge has a good piece in the latest Guardian Weekly which points out the double-standard in Obama's bewailing the death to gun violence of a teenager in Chicago while “maintaining a stony silence over the murder of Abdulrahman al-Awlaki, the 16-year-old American born in Denver who was killed by a drone in Yemen in 2011.”
Here’s the link to the Younge piece, although it may only have been accessible to me because I’m a subscriber. I’m sure it can be dug up somewhere on the web, though. Its title is: "Barack Obama is pushing gun control at home, but he's a killer abroad".
http://www.guardian.co.uk/commentisfree/2013/feb/10/obama-gun-control-drones-killer
P. S. I just finished reading a great biography of James Baldwin by David Leeming. Bishop Tutu's remark that apartheid "dehumanized its perpetrators as much as, if not more than, its victims" is the baseline of Baldwin's position on racism. He often said that racism does more harm to white Americans than to black Americans because it dehumanizes them, arresting their capacity to empathize with others.