Targeted Killings: Justice is Relative

By David K. Shipler

            A dozen years ago, the notion that a named American overseas could be legally targeted for death on the say-so of any “informed, high-level official of the U.S. government,” as the Obama administration now argues, would have been patently absurd. The constitutional requisite for due process in which government allegations are challenged and tested and never taken for granted remained largely intact. Only in the heat of combat was the commander in chief entitled to exercise lethal power. Otherwise, death sentences were handed down from the courtroom, not from the Oval Office.

            But the country has fallen so far to the right on national security since 9/11 that anything less than autocracy seems reasonable and moderate. So it is with a new proposal, put forth by Sen. Dianne Feinstein, to involve the judiciary in the secret process of assassination. It is a mark of the age that what was once unthinkable becomes sensible. If the rule of law interferes, change the law. But if history is just, it will not judge us kindly.

The pattern is familiar. Bush evaded the judicial branch in ordering sweeping domestic surveillance, and Obama has evaded the judicial branch in placing individuals on a list to be struck down by drones, far from any battlefield.

Bush’s tactics were later legalized by Congress, which placed them under the thinnest possible oversight by the secret Foreign Intelligence Surveillance Court, composed of judges who see warrant applications in closed sessions, with no one to challenge the government, and have little authority to follow up to be sure the rules are being observed.

Feinstein’s idea for an assassination court (which would surely have a more benign name) is modeled on the FISC: judges would secretly consider government assertions that this or that person in Yemen, Pakistan, Somalia, or elsewhere “poses an imminent threat of violent attack against the United States,” in the words of a Justice Department white paper rationalizing the legality of targeted killings. Like the surveillance court, the assassination court would presumably never hear rebuttals to the allegations of imminent threat, so the government’s assertions would go uncontested.

Furthermore, judges would probably have to contend with the Justice Department’s delight—under Obama, as under Bush—in writing its own revised dictionary. If the white paper’s serpentine self-contradictions are put into law,  “imminent,” “threat,” and other terms whose meaning we once thought we knew will have been redefined in ways that could handicap an honest judge who tries to subject an assassination application to strict scrutiny.

The administration’s memo puts forth “a broader concept of imminence,” namely, that certain al-Qaida members “are continually plotting attacks,” so that “the condition that an operational leader present an ‘imminent’ threat . . . 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.” Thus, “imminent” does not mean “immediate,” the case for killing needs no “clear evidence,” and “threat” need not include a “specific attack.”

Some might say this memo could have been written by George Orwell, but a more severe indictment is that it could have been written by John Yoo, the Bush lawyer who justified some methods of torture simply by defining them as not torture. Should Congress get around to creating a secret court to authorize assassinations, and in a statute that codifies the administration’s logic, then Obama’s drone strikes at particular individuals would be legalized, not restricted. In practical terms, judicial sanction would be little more than a fig leaf.

Unfortunately, most public discussion of drone strikes has been muddied, because two separate issues have been mixed together by senators, pundits, and executive branch officials. One is military, the other legal.

The military question is whether drones are a moral and effective tool in fighting al-Qaida and associates, or whether the attacks are counterproductive by provoking more and more civilians to join anti-American movements. This debate usually comes down to the number of innocent bystanders who are obliterated by the missiles that take out the “target.” Of course the government contends that the number is few; governments always do. Feinstein put it in the single digits annually. Various reports from the ground, one tallied by the Bureau of Investigative Journalism, puts the total at 473 to 893 since 2004, including 176 children, plus 1,270 to 1,473 injured.

The legal issue is the question of accuracy—not the accuracy of the drone strikes on the targets, but the accuracy of the target selection. How do names get on the kill list? The Obama administration won’t say, but it certainly relies on reports from intelligence agencies, which—we should be relieved to know—are suddenly infallible, their findings no longer massaged and distorted as they pass up the chain of command. All error and bias, all the dubious conclusions from fragments of partial fact, have been removed since a decade ago when Americans were told that Iraq had weapons of mass destruction. Today, apparently, the same agencies that brought us the Iraq war on a fictional pretext are able to finger precisely, by name and location, a would-be terrorist half a world away.

Such intelligence (not “clear evidence,” remember) should be seen, questioned, and challenged, within the bounds of protecting secret sources and methods. This does not seem too much to ask when a person’s life is about to be ended.

Drones are seductive. Boots on the ground are risky. Conventional bombers and fighters put the pilots in danger of capture or death, and some of their weaponry is less focused that drones’. If we want to fight a war without fighting a war, drones are convenient.

But war has become more of a mindset than an actual state of affairs. “War” is used loosely in this country. We’ve had the war on poverty, the war on crime, the war on drugs, and the war on terrorism. The Obama administration mostly eschews the term “war on terrorism” when describing this fight; although John Brennan used the word “war” in his confirmation hearing for CIA director, and the Justice Department’s white paper referred to the law of war in justifying drone attacks, the memo called the struggle “an armed conflict with al-Qaida.”

Perhaps the name doesn’t matter. Whatever it is called, it has skewed our values and pulled us down.