Of Killings and Imminent Threats and Nonticking Bombs

I’m making this a post because a comment wouldn’t take. (Hope we aren’t becoming PL Junior!)

I don’t know whether anyone previously posted a link to this NYT article about a DOJ legal memo justifying the target killing of alAwlaki.

Two of the points I find interesting are that it is claimed that the memo does not establish any broadly applicable precedent, and that it approves the killing despite the target’s not posing any imminent threat. The claim that the analysis is nonprecedential is one that is often made but is nonetheless unpersuasive at best. It is in the books; it is precedent for the next time an administration wants to kill an American abroad.

The fact that the memo reportedly approves the killing despite the lack of an imminent threat is interesting when juxtaposed against the arguments commonly made against harsh interrogation that (a) there are no ticking time bombs in real life, and (b) even if there were, they could not justify enhanced interrogation (let the world perish, just don’t waterboard or blow cigar smoke in a detainee’s face).

It’s hard for a conservative not to reflect on the different reaction that undoubtedly would have come from the media and Congress had this been a Bush Admin memo authored by Yoo or Bybee. Yoo reportedly has commented that he is glad that his Democratic critics turned out to be unprincipled hypocrites and not principled fools. Hard to blame him.

26 Responses

  1. QB:Someone posted the link in the "link dump" section on the right, but I'm glad you made it a post.Yoo is a whiny little bitch. The critic who withdrew the torture memos as legally defective was Bybee's successor, Jack Goldsmith, who is hardly a Democrat, unprincipled, or a hypocrite.

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  2. QB, Article 51 of the UN Charter is sid to authorize all nations to treat targeted killing terrorists as "self defense". Regardless of the tenuous and self serving arguments made by us, the UK, Russia,China, and Israel under Article 51 it is an open door compared to the Geneva limits.And we have had Executive Orders about this for a very long time. We treat it completely differently than torture issues.I understand the temptation to argue the torture – targeted killing parallel, but this is not an actual legal analogy.

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  3. Maybe I'm being completely intellectualy dishonest, but I don't see these two activities as comparable. Maybe I'm sitting on a moral slippery slope, but I have less of a problem with targeted killings than torture. We've touched on this over at PL, but I think there should be established standards and more transparency (obviously that would have to wait until after the fact) in the process.

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  4. No, ashot, you are taking the same position all major nations take under Article 51 of the UN Charter, which is viewed as an exception to Geneva.

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  5. Mark,The Yoo and Bybee memos didn't authorize torture. They analyzed whether proposed methods were torture. We haven't seen the al-Awlaki memo, so we don't really know what it says. But as my post says, I was more interested in the moral parallel between the approval of killing to stop a nonimminent threat and the condemnation of waterboarding (or using any other IE method) to stop a threat, whether or not imminent. I just don't see any possible reconciliation. The attacks on Yoo, Bybee, cheney and others weren't just that they were legally unprincipled (which I don't think they were at all) but that these were depraved, moral monsters as well as war criminals. Mike, I won't bother with your characterization of Yoo. I'm familiar with Goldsmith and the relevant events. I wouldn't equate him, however, with Obama, for example, and his campaign promise of a "reckoning" against Yoo et al, or any of the more unhinged Dem critics.If there is a moral justification for targeted killing to prevent a non-imminent threat that doesn't apply to waterboarding, though, I would be interested in seeing it (although I'm not interested if it is only a variant of "it doesn't work").

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  6. How about assassination versus unpleasant but nontorture interrogation, ashot? Does characterization make a difference?

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  7. Qb- No it doesn't make a difference to me. I do question your statment that the memo reportedly ok's the targeted killing even absent an imminent threat give the following from the NYT article: "The document’s authors argued that “imminent” risks could include those by an enemy leader who is in the business of attacking the United States whenever possible, even if he is not in the midst of launching an attack at the precise moment he is located."My interpretation of that is that they saw al-Alwaki as an imminent threat. I'm not sure that makes a difference in your moral argument, but I'm just wondering where you came to that conclusion. As for the criticism of Yoo and Cheney, depraved seems a little out there, but war criminal makes perfect sense if you think wateboarding is torture. Whereas, as Mark has pointed out, it doesn't appear as if targeted killing violates international law.

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  8. ashot,Does that usage of "imminent" not strike you as at a minimum parsing at least as bad as anything critized in the Bybee and Yoo memos? I think it is beyond parsing; that simply isn't what imminent means. It certainly isn't consistent with usage of the term by critics of the Bush admin — typically the same critics who attack IE — regarding the Iraq War, for example. Beyond this, it seems to me that you and Mark are engaged in simple circular reasoning. You say this killing didn't violate international law, because there is a secret memo by the Obama Admin that reaches that conclusion. The Yoo and Bybee memos concluded that IE wouldn't violate law either. And, incidentally, I don't believe those conclusions, but for the separation of powers part, were rejected in the superceding memo that replaced the Bybee memo. It seems to me that claims that the Bush Admin personnel were "war criminals" while the Obama Admin aren't, because the latter have a memo that says they aren't, are more politically than legally based.I read plenty of attacks on Yoo, Bybee, Cheney and others, at PL and elsewhere, btw. I'm not exaggerating what was said a bit. Heck, I was called the same things just for challenging the conventional wisdom at PL.

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  9. "If there is a moral justification for targeted killing to prevent a non-imminent threat that doesn't apply to waterboarding, though, I would be interested in seeing it (although I'm not interested if it is only a variant of "it doesn't work")."It seems to me that the doesn't work argument would be even more damning to killing a non-imment threat. Unless you send in a SEAL team to confiscate computers and file cabinets, you extract zero actionable intelligence via outright assassination, where as you could potentially get at least some actionable intelligence out of someone put under enhanced interrogation. Although perhaps I'm comparing apples to kumquats.

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  10. We can probably bracket the debate over what "imminent" is. Killing al-Awlaki and waterboarding AZ and KSM were both done to try to stop ongoing, organized terror threats. The former was not (at least this is the premise) engaged in any immediate operational strike against us. But we killed him anyway because he probably would be part of such attacks in the future or in planning. I see no more salient premise for killing him than for waterboarding KSM or AZ.

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  11. QB- It's totally parsing. I was just thought maybe you had read something that made it seem like even that parsing wasn't necessary. I think the way you phrased the post was inaccurate. That is a bit beside the point, but itjust jumped out at me. After reading Article 51, I see your point. If you want to argue that the targeted killing wasn't in self-defense than you can say it was a war crime. So in that sense both administrations are essentially arguing that there actions are legal because they interpret them to be legal. But my opinion isn't based on the respective memos so I don't think your circular logic argument is accurate. I think it's much more persuasive to argue this attack was in self-defense than that water-boarding isn't torture. As I said, maybe I'm being intellectually dishonest or inconsistent, but I just see them as two different issues.

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  12. ashot,I see your point about how I phrased the post; haste is my only excuse.

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  13. It seems a conflation of two different questions. A. Is Technique X torture?B. Is it legal to kill Y without attempting to capture?One can answer Yes in both cases without being a hypocrite. I think Yoo is making the slippery slope argument. One is either all in, all out, or a hypocrite. I can handle shades of grey.BB

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  14. Two immediate points on this:1. You omit the entire "secret law" issue that was also used to attack the Bush Justice Department on their justifications for interrogation and that the Obama administration has completely adopted as an appropriate method to make Justice Department policy.2. The Obama administration didn't end torture. They simply decided to outsource it to avoid the domestic political complications, basically returning to the Clinton policies. Bagram airbase is the new Guantanamo, as the Obama administration finally got the Supreme Court ruling that President Bush's administration had been trying to get for years establishing where the limits of U.S. judicial review end. U.N. Finds ‘Systematic’ Torture in AfghanistanU.S. to build new massive prison in Bagram

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  15. I would add that critics of the Bush DOJ memos (those not completely unhinged, that is) often said that they resulted from lawyers feeling pressure to justify what officicials felt was imperative.Now consider that since taking office and even before the Obama Admin has boasted that it is the truly aggressive administration in finding and killing terrorists. Democrats routinely charged that Bush didn't really care about OBL or AQ, took his eye off the ball, etc. They said he made us less safe than we were.If we are to believe they believe all this, why should we believe the Obama DOJ isn't under even worse pressure to justify what officials want to do? Does this just come back to, Democrats are better people?I know that some liberals and Democrats don't appreciate our continuing to focus some attention on these issues. But after the demonization the Bush Admin experienced, followed by continued developments like this, I don't think anyone can reasonably feel that it's unfair to do so.

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  16. QB:Fairlington Blade has beaten me to the punch. But I too don't find Yoo's logic compelling: that you have to approve/disapprove of both torture and assassinating US citizens who are terrorists to be internally consistent and that disapproving of both is somehow foolish. As it happens, I am uncomfortable in both scenarios with a unitary Executive that has little to no oversight, so I guess I would be the "principled fool" in Yoo's mind. Of course, I would argue that disagreeing with his basic premise about the extent of power in the Executive Branch says little about one's judgment.The hunt for OBL has shown that JSOC is fully capable of capturing a high value target, if necessary, so assassination is not always the answer. Plus, if the reporting is correct, significant intelligence was gathered from the computers taken from OBL's hideout.

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  17. Mike,My original, central point was on the moral contradiction between the claim that waterboarding (or pick your interrogation technique) can never be justified as means to prevent a threat from being realized, while killing someone can be. I do think this is a contradiction that needs explaining (but in fact can't be explained). Moreover, the argument constantly has been made that there just plain are no such things as ticking bomb scenarios — there is never a threat so imminent that it can justify waterboarding. How then can we accept that there is a threat so imminent as to justify blowing someone up with a missile, especially when it is admitted that he is not in the process of attacking us?If you find both scenarios objectionable (I find neither objectionable), then perhaps you would agree that the reaction in the media and Congress would have been quite different if this had been five years ago. The unitary executive theory isn't really a theory; it is a fact based on the text of the Constitution that vests executive power in the President and solely in the President. We can argue about specific instances of executive and legislative or judicial power, but at bottom all the unitary executive doctrine is is an expression of separation of powers.I don't quite understand your point about OBL. You mean they could have captured him instead of killing him? I don't doubt it. But I don't think we should necessarily limit ourselves to operations of that magnitude.

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  18. QB:Well, I just had a reply ready for you, but I seem to have lost it somewhere in the ether.In brief, I agree the moral problem where killing someone bad is OK, but torturing them is not, cannot be explained by logic. Even in our Constitutional jurisprudence, we have the dichotomy of an Eighth Amendment stricture against cruel and unusual punishment that does not include the death penalty. So, it is something societal or maybe even genetic.The ticking time bomb scenario (or the "Jack Bauer" scenario) probably isn't going to happen very often. If "imminence" is required, then the whole "Drone War" comes under scrutiny. OTOH, the al-Awlaki case is more specific for US citizens, but I think they dealt with imminence in the context of previous case law (police chases, etc.).I agree that the reaction would have been different in 2006, particularly since it was an election year with a strong D challenge to the R incumbents.The point about OBL was just that we could have taken him out with a drone as well. Then we would have lost the PR battle (couldn't say for sure that he was dead) and the intelligence from his computers.

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  19. From the Cohen piece to which Mark linked:"There was a question, though, about what to do with him. The Constitution is persnickety about due process, the right to a trial and so on. Awlaki’s citizenship seemed to complicate matters, although in the view of some it should not have. He was an enemy combatant, pure and simple. We were at war, pure and simple, and his life could be taken."Under what article & section of the Constitution can POTUS / Executive Branch declare a US citizen an 'enemy combatant' (find that phrase in the original) and order them killed?

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  20. bsimon:Under what article & section of the Constitution can POTUS / Executive Branch declare a US citizen an 'enemy combatant' (find that phrase in the original) and order them killed? Surely certain powers of the President have penumbras, formed by emanations from those powers that help give them life and substance.

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  21. BTW…the above comment was for our resident lawyers, who hopefully will appreciate the snark.

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  22. Very good, Scott.I would be very interested to see the memo but suspect it will be a long time, if ever, when we do. I don't have a problem with killing al-Awlaki, at least not this problem. The Constitution doesn't explicitly grant the President any power to have anyone killed. It simply vests executive power in the President and, among other things, makes him commander of the armed forces. He also swears an oath pursuant to Art. VI that includes protecting and defending the COnstitition. The 5th Amendment deals with criminal process and punishment. This killing was not for criminal punishment but to eliminate someone openly at war with the U.S.I would turn the question around and ask, where does the Consitution provide that American citizens may wage war against the country and be immunized by their citizenship against exercise of our powers and right of self-defense? Nowhere, of course. I also disagree with the criticism that this was done "on the sneak" or "in secret." As pointed out above, it's only fair for Bush critics to level this criticism at the Obama Administration, since they would be hypcrites not to, but there is nothing nefarious or extra-constitutional about the executive branch asking for and receiving a legal opinion about its proposed actions, and legal advice generally is confidential. They didn't hide the killing of al-Awlaki. They boasted of it.

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  23. The NYT editoral board notes today that when the Bush administration used secret legal memos they were "reckless legal thinking". When the Obama administration uses them they are "detailed and cautious", despite the fact that no one has actually independently examined them. Disturbingly, despite the NYT's usual anti-Bush, pro-Obama cheerleading, I find myself in complete agreement with their conclusion as to what the process should be. "Due process means more than a military risk analysis. It requires unambiguous and public guidelines for how the United States will follow federal and international law in approving targeted killings, particularly of Americans. And it means taking the decision beyond the executive echo chamber. We have argued that judicial review is required, perhaps a closed-door court similar to the Foreign Intelligence Surveillance Court, before anyone, especially a citizen, is placed on an assassination list."Justifying the Killing of an American"NDEPENDENT OVERSIGHT Dealing out death requires additional oversight outside the administration. Particularly in the case of American citizens, like Mr. Awlaki, the government needs to employ some due process before depriving someone of life. It would be logistically impossible to conduct a full-blown trial in absentia of every assassination target, as the lawyers for Mr. Awlaki prefer. But judicial review could still be employed.The government could establish a court like the Foreign Intelligence Surveillance Court, which authorizes wiretaps on foreign agents inside the United States. Before it adds people to its target list and begins tracking them, the government could take its evidence to this court behind closed doors — along with proof of its compliance with international law — and get the equivalent of a judicial warrant in a timely and efficient way."Lethal Force Under LawThat being said, I'm completely indifferent to arguments about "international law", as the relevant controlling authority is the United States Constitution, specifically Article III, Section 3 (Treason defined) and the Fifth Amendment. I'd also draw a distinction between drone attacks in active war zones carried out by the military pursuant to a Congressional resolution authorizing the hostilities and those done by the CIA that can be carried out anywhere.

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  24. jnc4p,I will have to try to read the links. I don't think it is obvious that the treason clause or the 5th Amendment are controlling provisions here. From what we know, al-Awlaki was not being executed for treason or otherwise punished for past crimes. He was killed in an act of self defense as an enemy comabatant waging ongoing war against the country. Clearly, I agree, however, that the NYT has a serious problem of inconsistency and credibility in deferring to the unseen Barron memo as being careful and deliberate after summarily trashing the Bush DOJ memos and their conclusions.

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  25. "He was killed in an act of self defense as an enemy combatant waging ongoing war against the country."Where would you classify the activities of Julian Assange in comparison to al-Awlaki? Is he a legitimate target for targeted killing? Regardless, I'm not arguing that al-Awalaki couldn't or shouldn't be killed, but rather that the Executive should not be able to make this determination unilaterally with regards to an American citizen. To the best of my knowledge, the Congressional authorizations for Iraq and Afghanistan/Pakistan haven't been read to extend their authority to Yemen. That's why the military had to hand off their drone attacks to the CIA when the Yemeni government stopped cooperating. CIA to operate drones over YemenI think the FISA court system provides the minimum level of due process and checks and balances necessary to sustain these sorts of counter-intelligence and anti-terrorism policies for the long run. The court has something like a 95% record of granting the applications, but the mere fact that the Executive has to go before an independent judge helps improve the quality of the warrant requests to begin with. I think that rolling the authority to grant warrants for targeting killings and enhanced interrogation into the FISA structure is the most sustainable approach for the long term. It provides the benefits of independent judicial review, without the constraints on inadmissible evidence present in Article III courts, which is the main problem with using them in counter terrorism cases.

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