Why Holder's letter carries little water
Last week, Senator Rand Paul (R-TX) forced a long overdue conversation in Washington about checks and balances on executive power. Yet few observers recognize the ultimate importance of his actions, or why the Senate's confirmation of the new CIA director remained premature.
Prompted by Sen. Paul’s filibuster last Wednesday, Attorney General Holder wrote a letter the following day, acknowledging that our government lacks authority to execute Americans within the US without trial.
His concession is welcome, but must be taken with a grain of salt. It behooves observers to understand why, for several reasons, Holder’s statement may be less secure than we would ideally hope.
Accepting disclosure without investigation
Much of the controversy surrounding Brennan’s nomination concerned mere disclosure: whether the executive branch would let Congress read the administration’s legal analysis governing the targeted assassination program. President Obama apparently heard the message, admitting in his State of the Union address that more transparency is required.
The result proved underwhelming. One congressional committee received a single legal memo among several, which did not even purport to delineate the boundaries of the assassination program, but rather explored the use of deadly authority against a single target among several hundred who have been killed, including at least four US citizens.
Mere disclosure of some OLC memos to some Senators is insufficient.
Meaningful congressional oversight requires full access to all the legal memos, as well as active investigation of the underlying facts. It is not enough to simply read executive legal analyses paying lip service to constitutional values routinely violated on the ground.
The congressional intelligence committees, after all, were founded after robust investigations revealed widespread abuses by intelligence agencies, including the CIA, spanning decades and the terms of several presidents. Factual investigation has revealed more recent abuses, as well.
Last year, the Senate Intelligence Committee concluded a thorough investigation of torture, which produced a report recognizing torture as an international human rights abuse that ultimately undermined US national security by producing false intelligence, eroding pro American sentiment abroad, and helping our enemies recruit foot soldiers.
Yet, reflecting its pattern of embracing secrecy while claiming transparency, the Obama administration has refused to declassify the report. It is only because neither the press nor the public know the facts that irresponsible Hollywood fiction proved so problematic and controversial.
Forgotten in commentary on Brennan's confirmation were some troubling details suggesting that, on both torture and drone strikes, transparency remains inadequate.
First, Senators had to fight tooth & nail to secure even the most minimal disclosure from the White House. Second, other congressional committees also sought access to the OLC assassination memos, but were denied.
Finally, beyond disclosure of the OLC's legal memos are important questions about how the standards in them are applied to real facts. The Obama administration and CIA still refuse to answer congressional questions beyond the memos—such as, “How much evidence does the President need to determine that a particular American can be lawfully killed?” These questions are crucial, but Brennan’s confirmation could ensure that Congress receives few answers.
How the facts suggest elastic powers
Brennan spoke to the committee of the "great care" taken to ensure that drone strikes kill only their intended targets. What little we know about them suggests otherwise.
The OLC memo leaked to NBC's Michael Isikoff disclaims limiting principles. It cites several factors that officials review when considering the assassination of Americans (eg, the imminence of an attack, infeasibility of capturing a suspect, and compliance with laws of war), but describes them “not…[as] minimum requirements necessary to render an operation lawful,” but rather as mere considerations guiding one particular use of that authority.
In other words, these factors do not constrain targeting decisions, which remain unfettered, as well as secret and—even after the filibuster—completely unaccountable. Others have already explained how:
the Obama Administration took a process that is supposed to constrain the president within the law's confines; nodded toward the notion that they can kill only if capture is infeasible and the threat of attack imminent; and then qualified those constraints so drastically that it would be more honest to acknowledge that neither imminence nor infeasible capture are really required.
The standard for imminence, for example, is so elastic that it permits the presumption that “all military-age males in a strike zone [are] militants.”
Similarly, while claiming to authorize strikes only on senior operational leaders of Al-Qaeda and associated forces, other citizens have been killed “incidentally” without any explanation or accountability.
This Sunday, the NY Times printed a story examining the authorization of the drone strike on US citizen Anwar al-Awlaki. Setting aside concerns that it reflected blatant propaganda, the article alludes to executive abuses for which no one has ever been held accountable.
While presenting the leaked memo authorizing al-Awlaki’s death as limited to that particular target, the Times acknowledges that at least two other US citizens—against whom drone strikes were supposedly not authorized—were killed without trial. Yet no one has been held accountable, the program has been only reinforced by Brennan’s confirmation, and the unaccountable use of targeted assassination continues in secret.
The question ignored by proponents of drone strikes is the same overlooked by those who defend torture: “How do we know our government has the right person?” The overwhelming proportion of detainees released from Guantanamo, or recurring revelations of surveillance targeting non-violent activists, reflect our government’s poor track record of assessing guilt.
Is Anwar al-Awlaki the new Jose Padilla?
Considering these issues across time exposes a further concern, illustrated by the case of Jose Padilla.
A US citizen detained at O'Haire airport in 2002 and held in a military prison until he lost his mind, Padilla was eventually tried in a civilian court, where he was convicted of offenses bearing no relation to the plot for which he was originally accused. His example, in the context of a later debate on the power to detain Americans without trial, demonstrates how powers initially introduced as exceptional can grow entrenched and more pervasive.
The authority to detain Americans without trial is the subject of Obama v Hedges, an appeal challenging the NDAA of 2012. Many misconstrue the breadth of the NDAA’s detention powers, including members of Congress who voted for them.
Apologists who downplay the impact of the NDAA's detention provisions often cite section 1021(e), which states that “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of…persons…captured or arrested in the United States.” But they forget Padilla, whom the government subjected to indefinite military detention even before the NDAA became law.
For over a decade, a pattern has emerged of executive evasion of judicial review when the military detains particular (seemingly exceptional) Americans. Ten years after Padilla was first detained, the NDAA reflected congressional ratification of that power applied to not particular Americans, but potentially to anyone.
Padilla represents the once isolated case that serves as a baseline for future abuses. Put simply, legal decisions take place not in a vacuum, but reflect a vector. And with respect to drone strikes targeting Americans, the trend points in a disturbing direction, which Brennan's confirmation only confirms.
It’s not paranoia if it’s true
Reflecting their own confusion, many have suggested that Paul's concern about extrajudicial assassination reflects paranoia. Unfortunately, it's only paranoid if unfounded.
Whatever Obama apologists may claim, our government has in fact executed multiple US citizens without trial. And a potential drone strike within the US hardly requires a flight of imagination: the manhunt that mobilized across Southern California to find LAPD officer Chris Dorner presents a scenario all too likely to recur.
Given Congress’ dismal record, Paul's filibuster was a clarion call. It emboldened members from both parties in both houses of Congress, whose bipartisan concerns about checks & balances will resonate well beyond the legal authority for drone strikes, which remain unacceptably secret and effectively above the law.