Dear Norm,
I hope this note finds you well. I know it's been
a long time, but the outrages continue, Norm,
and I just couldn't resist reporting more
suspicious activities that have come to my attention
among this nation's highest officials. I enjoy
reporting such suspicious activities, and it's my duty.
The Attorney General says that
"the decision to use lethal force against a United States citizen . . . is among the gravest
that government leaders can face," after asserting that
the due process provisions of the fifth amendment of the constitution afford no bar
to the application of lethal force abroad
(the word "assassination", Mr. Holder notes, is
inapposite as it denotes unlawful killing)
to "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,"
provided the government has determined
that the target "poses an imminent threat of violent attack,"
"capture is not feasible" and
the application of lethal force to the target
"would be conducted in a manner consistent with applicable law of war principles"
(and with permission of the host country's government).
Such a decision must be more grave only to the targeted citizen
(and anyone standing within fifty meters or so of said citizen).
One might ask whether such a decision might
properly be contemplated at all by
the government constituted by the cited document.
Mr. Holder believes "it is important to explain
these legal principles publicly," and offers this
carefully hedged language, certainly subject to
a great deal of varied historical construction.
The Attorney General waves his hands around
the totality of the circumstances imminent threat analysis,
states that assessing feasibility of "capture
of a U.S. citizen terrorist" is "fact-specific,
and potentially time-consuming," and sketches the just war
principles of necessity, discrimination, proportionality and humanity
with broad and conclusory strokes,
as though presenting consensus definitions
(although they are the deliberate, expansive
position of the Executive Office, consistent
and consonant with previous administrations, while
perhaps not entirely endorsed by international
jurists and the community of nations)
but, despite incantory repetition of the phrase,
did not scruple to explain the "senior operational leader,"
the "active engagement in planning."
Would a junior operational leader,
a senior operational follower,
a junior corporate relations leader,
a vice-president in the accounting department,
the mail-carrier, the head of IT, or
the executive assistant of a senior operational leader
be fair game? how about if he or she were
active in planning but not engaged,
or actively engaged in human resources activities,
or grudgingly — or passively — engaged in planning,
or maintaining the s.o.l.'s communications equipment,
or procrastinating the assigned active engagement
in planning, but not really having quite gotten to it, yet?
(circle all that apply)
Due process is "not judicial process." Assessing the former,
the courts weigh "the private interest that will be affected"
(that's the "deprivation of life" of Mr. s.o.l. Citizen Terrorist)
"against the interest the government is trying to protect, and
the burdens [it] would face in providing additional process."
Provided the courts have opportunity to make that assessment, eh?
Due process is "not judicial process." Due process,
Mr. Holder asserts, allows the government to state the
targeted individual's interest as the "weighty" one of
"making sure that the government doesn't target him erroneously"
(whereas the most cursory judicial process would recognize
that person's life as the fundamental interest at stake), assert
his various reqisite qualifications, as above,
deny the feasibility of extraction
("it may not always be feasible to to capture
a United States citizen terrorist who presents
an imminent threat of violent attack," he
says as though the boots that shot bin Ladin
weren't standing in the room with him at the time,
as though extraordinary rendition had not become
commonplace during the tenure of this so called war)
and, with thumb on scale, weigh
the government's "imperative" to "counter threats
of senior operational leaders of al Qaeda"
and "protect the innocent people whose lives
could be lost in their attacks."
(One might say "the innocent people whose interest in
making sure that al Qaeda doesn't target them erroneously,
or accurately— what, they're not civilians?—
might be importuned by their attacks.")
But that's not all: "Due process is ironclad!"
"It is essential," and you know you've got it when
"robust oversight" is being exercised—
is actually checking and balancing! — in the form of
the regular delivery of reports to
appropriate members of Congress on
"counterterrorism activities, including the legal framework."
Which sounds to me like no oversight at all, robust or otherwise.
So, assuming, for the moment, that the Attorney General is right, that
it is lawful for the government to apply lethal force to
a citizen terrorist abroad who is a senior operational leader of
al Qaeda or associated forces, is actively engaged in planning to kill
Americans, would be burdensome to extract, and poses an imminent
threat of violent attack, provided the application of lethal force is
accomplished according to just war principles and with permission
from the host country, and assuming that all of these factors were
applied according to honest and valid construction of their significance,
and, further, assuming that these were all actually, in fact, shown,
"after a thorough and careful review" to be the case in the case of
Anwar al-Awlaki, then, Mr. Holder asserts, his targeted killing by
drone attack last year in Yemen was within the government's authority.
What then of his sixteen-year old son, Abdulrahman,
killed by a drone strike two weeks later? Was that one
clearly within the government's lawful authority?
In fact, Mr. Holder's presentation
of the administration's authorities and its lawfulness has
only graven my doubts deeper as to any such program's
constitutional permissiblity, notwithstanding its
obvious expediency, and about that official's veracity,
so I'll go on understanding these to be
just the extrajudicial killings just described: assassinations.
Why doesn't the administration release the authorization memos?
Anyway, maybe I'll write again—
there's no shortage of reportable suspicious activities!
In the mean time, take care of yourself, Norm,
and please give my love to Temperance and the kids.
- Conway