Friday, February 8, 2013

(Don't Fear) The MQ-9 Reaper: The Department of Justice White Paper and the Targeted Killing of American Citizens

Disclaimer: this blog post is not meant to be a sign of support for the overarching policy of targeted-killings-by-drone that the United States has pursued in the Middle East, the Asian Subcontinent, and Africa over the past nine years.  There are certainly significant consequences to the use of drones - including civilian casualties, missed targets, and the effects of drone use on foreign public opinion - that go well beyond any strictly legal analysis of drone-based targeted killing.  That said, these issues will not be addressed in this blog post, which strictly discusses the rationale of the DoJ whitepaper that was recently released.

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Unless you've been hiding under a rock (or just busy) for the past few days, you've no doubt heard about the Department of Justice memo on targeted killing that was leaked to NBC news on Monday.  And hoo boy what a stink it's caused, especially in the Right Wing Blogosphere and among a host of (*cough* hypocritical *cough*) conservative pundits.   I mean, did you know that the Obama Administration thinks it's honkey-dorey to ASSASSINATE AMERICAN CITIZENS without DUE PROCESS?!  For all the subtlety of their headlines and arguments, the whole lot of them may as well have pooled together and said, in the immortal words of Antoine Dodson: "Hide yo' kids, hide yo' wife, and hide yo' husband, cuz they dronin' e'erbody out here."

Conservative Punditocracy to the Average American: "Do
not ask for whom the Predator drone hums . . . it hums for thee."

Source: PolicyMic, "Predator Drone Strikes"
(As an aside, left wing pundits have been no less hypocritical in their *support* for the DoJ whitepaper.  MSNBC's typically far-left punditocracy - including "people's rights come from the government" Touré, Chris "Tingles" Matthews, and Rachel Maddow - weighed in in favor of the targeted killing policy, and the network's Krystal Ball went full hack and decided to just come out and say what everyone who listened to the original MSNBC slobberfest already knew: that these same pundits would *not* have supported the *exact same* policy had it been implemented by George W. Bush. So, yes, there's plenty of hackery and hypocrisy to go around . . .)

But, back to business.  The level of hysteria over the targeted killing memo has somewhat confused me, and not just because of its mystical ability to turn cable news into a "Through the Looking Glass" topsy-turvy laugh-fest (as if it wasn't already).  This is largely because, even from reading the first page of the memo, the DoJ's central caveat is obvious: the memo *does not* provide a legal justification for the targeted killing of Americans.  It provides a legal justification for the targeted killing of Americans . . . who are operational leaders of al-Qaeda, who are residing in a foreign country, and who, for whatever reason, cannot be captured.  Which, of course, is not necessarily a good thing or a good policy.  But there is a world of difference between "The DoJ Believes the Government Can Kill American Citizens Without Due Process!" and "The DoJ Believes the Government Can Kill al-Qaeda Leaders, Who Happen to be American Citizens, with Minimal Due Process."

Literally the end of the very first paragraph of the DoJ memo.
Note the phrase "only where the following three conditions are met."
I was relieved to find that I was not the only person who picked up the distinction, and, luckily, those who did are a lot smarter and more articulate than I am.  In fact, why are you even reading this blog when you could be reading:
The point is that the DoJ memo doesn't give the Obama Administration a license to kill any thought-criminal or Republican that it happens to be annoyed with this week.  It's a limited legal opinion, applied in limited circumstances, to a relatively small group of individuals.  

In fact, with the deaths of Anwar al-Awlaki (who, as Clint Watts points out, was likely the very person whose targeting the DoJ white paper was written to justify) and Inspire magazine editor Samir Khan, I don't know if there are currently *any* American members of al-Qaeda who are sufficiently "senior" to fall within the white paper's definition of who could be legally targeted.  A case might be made for targeting Adam Gadahn, al-Qaeda Central's Oregon-born media advisor, spokesperson, and propagandist . . . but even this might be stretching the definition of "senior operational leader" a bit far.  While there are certainly other Americans who have joined al-Qaeda or its regional affiliates (Somalia's al-Shabaab seems to be a particularly popular choice for American terrorist wannabes, though some have found the experience to be a lot less fun than they were expecting), they are all comparatively small fry.  I would personally be curious to hear just who - if anyone - still falls within the ambit of this DoJ memo.

As for the memo's legal reasoning, well . . . it might be a little strained, but I don't think it's necessarily unreasonable.  The "Mathews v. Eldridge Balancing Test" referenced at several points throughout the memo is a somewhat arcane (to non-lawyers/law students) test that is very, very significant in the field of administrative law.  The test is used to determine what level of process is due to a person who is being deprived of liberty, property, or now, apparently, life resulting from the action of an administrative agency.  The test stipulates that three factors must be considered:
  1. The private interest that would be effected by government actions
  2. The risk of an erroneous deprivation and the likely benefit of additional procedural safeguards
  3. The government's asserted interest
Typically, a less significant private interest, a low risk of erroneous deprivation, a low probability that additional procedural safeguards will lead to a greater degree of certainty with respect to an action, and a high government interest are all factors that cut in favor of a lower level of due process (for example, no constitutional requirement that a hearing take place prior to the deprivation of liberty/property).  The opposite, of course, cuts in favor of more significant procedural safeguards (e.g. pre-deprivation hearings that operate more like a traditional trial).

Now what, you might ask, does some administrative law mumbo jumbo have to do with the laws of war?  Good question, and the answer lies in the case of Hamdi v. Rumsfeld (2004), which, as you might have noticed, is also cited throughout the DoJ white paper.  In Hamdi, a case in which an American citizen held at Guantanamo Bay sued the Bush Administration challenging his detention and demanding access to the evidence against him, the Supreme Court pulled the Mathews Test completely out of its bag of tricks (NEITHER party had cited Mathews in its briefs to the Court!) to effect a compromise between Hamdi's position and that of the US government.  Based on Hamdi's important liberty interest in, you know, not being imprisoned in Gitmo for the rest of his life and due to the moderate risk of an erroneous deprivation (e.g. was Hamdi really al-Qaeda? He, like hundreds of others, was picked up by Afghanistan's Northern Alliance and turned over to the US later...), the Court ruled that American citizens like Hamdi who were challenging their enemy combatant status need to be provided with a greater amount of due process.  Specifically, they ought to 1) receive notice of the factual basis of their classifications as enemy combatants, and 2) receive a fair opportunity to rebut the Government’s factual assertions before a neutral decision-maker.  Recognizing that the Government, too, had important interests, however, the Court also ruled that at such hearings before a neutral decision-maker, there would be a rebuttable presumption in favor of the government’s evidence and hearsay evidence would be allowed.  It's not a perfect decision, by any means, but it incorporated (bizarrely) a key administrative law tool into a wartime scenario, laying the groundwork for a (somewhat) more clear-cut way of making procedural due process determinations with respect to armed conflicts.

By extending the reasoning in Hamdi and applying the Mathews balancing factors, the DoJ memo is drawing two central conclusions: 1) the US Government's interest in protecting its citizens and homeland from attack outweighs the interests that American citizen "senior operational leaders of al-Qaeda" have in continuing to live and plot, and 2) the risk of erroneous targeted killings (e.g. the targeting and killing of an American citizen who is not a "senior operational leader of al-Qaeda) is low and will not be made any lower by the creation of additional procedural safeguards.  It's a pretty big jump from Hamdi, but, again, it's not completely unreasonable.  And let me reiterate that, by its very language, the memo only applies this logic to "senior operational leaders" of al-Qaeda "in a foreign country."

This, however, is where the ACTUAL arguments against the DoJ white paper can really come into play, because, at least in my opinion, the idea that additional procedural safeguards - say, the creation of a special court that reviews the evidence against an al-Qaeda leader and issues the final decision on whether to drone or not to drone - are unnecessary comes off as at once naive and a little sinister.  I'm no fan of al-Qaeda, but, if we're going to keep the drone program, I'd at least like to see a greater degree of judicial oversight with respect to who deserves to have a Hellfire missile dropped on them.

While, as I hope that I and others have shown, the average American has little to worry about with respect to the DoJ's targeted killing memo, I think that, perhaps, the memo has led to an important conversation about drones and their use (discounting, of course, the paranoid ramblings or the slobbering sycophancy of the punditocracy).  Because with John Brennan up for Director of the CIA, the US drone policy is - without the limits that a public conversation on the issue may potentially create - likely to continue apace.  Or, to put it another way: John Brennan and the counter-terror establishment have a fever . . . and currently the only prescription is more cowbell.

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