The Secret Warriors’ Secret Law Unveiled (Sort Of)

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The Secret Warriors’ Secret Law Unveiled (Sort Of)

Published in the Maryland Daily Record February 11, 2013

            And why am I under arrest? Herr K asks in Kafka’s The Trial. That’s something we’re not allowed to tell you, the plainclothes arresting officer responds. This surprises K: K was living in a free country, after all, everywhere was at peace, all laws were decent and were upheld.

            Ordinarily, as Kafka intimated, when laws are decent and are upheld, governments are forthcoming about why they do what they do.

FOIA Foiled

            Last July I wrote in these pages about the silence surrounding the nation’s continuing drone assassination program. At the time, I pointed out that we are killing people, some of them American citizens, some of them noncombatants, and our government will not publicize its reasoning. I decried the failure of the Obama administration to release the Office of Legal Counsel memos which must exist to explain the alleged legality of the program. But there were no fuller explanations until this last month, when there were two major developments.

            Well before my earlier comments, reporters for the New York Times, followed by the ACLU, had filed Freedom of Information Act requests to obtain this information. On January 3 of this year, U.S. District Judge Colleen McMahon of the Southern District of New York ruled, in essence, that FOIA will not be the tool to pry that information out of the government’s hands.

The General Drift, Maybe

            As Judge McMahon wrote, we thought we knew the general drift of what would have been revealed, if the requests had been honored. From various public comments of various administration officials, it would appear that the legal justification for this bloodshed runs roughly like this:

  • The September 18, 2011 Authorization of the Use of Military Force was tantamount to a declaration of war upon Al Quaeda and the Taliban, despite the fact that, legally speaking, war had previously been thought to exist only between states or at least would-be states, like the American South in the Civil War, and Al Quaeda, at least, was not even arguably a state.[1]
  • In war, a nation is allowed to kill enemy combatants if it cannot capture them.
  • The people we are targeting are combatants, even if they are tracked down and blasted with missiles far away from a “hot” battle-zone.
  • We have determined that we cannot capture these combatants, and hence have the right under the laws of war to kill them.
  • The laws of war permit the killing of innocents as “collateral damage” to the killing of combatants if an appropriate determination of “proportionality” has been made.
  • If an American becomes a combatant against the U.S., he/she is not entitled to judicial due process, but only to the benefit of the “rules” listed above.

            We only thought we knew the rationale, however: a point Judge McMahon repeatedly made. For instance, in discussing Attorney General Holder’s speech at Northwestern University on March 5, 2012, the Judge summarized: “Nor can it be said that Mr. Holder revealed the exact legal reasoning behind the Government’s conclusion that its actions comply with domestic and international law. In fact, when you really dissect the speech, all it does is recite general principles of law and the Government’s legal conclusions.” She characterized her own analysis of the government’s position as nothing better than “reverse engineering,” an “informed guess” by an “outsider.”

The Questions We Were Prevented From Addressing

             Judge McMahon also noted that this bland and sketchy position raises many important legal questions.

            One had to do with separation of powers; though the War on Terror is colloquially called a war, it has many of the hallmarks of a police action, and police actions end up in front of a judicial, not an executive officer. Is it really right to have the executive serve as the equivalent of judge, jury, and executioner?

            Looking at what the targeted Americans did as possible treason, it is notable that the procedural threshold for proving treason is constitutionally set very high. Is it acceptable to kill those we (supposedly) cannot arrest when they would have enjoyed such protections if we could have arrested them?

            As to the killing of innocents, Holder acknowledged that proportionality is only established if “the anticipated collateral damage [is] not excessive in relation to the anticipated military advantage.” But how can we know whether that calculus is being correctly done if we do not know what yardstick is being applied or what it is being applied to?

            Then, too, the U.S. is subject to international law, which forbids the nation to engage in “assassinations.” Apart from some utterances containing syllogistic logic which the Judge correctly treated with skepticism, we had no clear idea how the administration determined we did not run afoul of that prohibition.

            In short, a more detailed disclosure of administration thinking would have made for a much better informed public debate about the killings the drones commit constantly in our nation’s unstated name. It is even possible that public opinion would have rebelled against our occasioning this carnage, even to protect ourselves; at a bare minimum, we would have chosen it deliberately.

            Judge McMahon may well have been right that because of the FOIA exemptions (exemptions practitioners know often render the Act useless), it proved the wrong tool for eliciting the information that unlocks the debate. The problem seemed to be that there was no right tool. Without one, a detailed answer to the question what justification? was as impregnably protected from meaningful disclosure as the name of the crime Herr K was charged with and executed for.

The Leakocracy Intervenes

            However, at this juncture what I once described in these pages as “the messy but necessary leakocracy” came to the rescue. On February 5, NBC News revealed that someone had provided it with a “white paper” culled from the Office of Legal Counsel memos the Times, the ACLU and the public had all sought. This was not the memos themselves, but instead a congressional briefing. The style is unmistakable, however. This is the stuff of OLC memos. Indeed Daniel Klaidman of the Daily Beast reports that it is an abridgement of them.

            It turns out, as Klaidman reports, that there was, all the time, a struggle within the Obama administration, as there has been within the commentariat, about whether the killing rationale should be publicized. Predictably, the CIA was in one corner and State and Justice were in the other. Initially, the CIA won, and all we got were general remarks like Holder’s. But someone interested in providing some fodder for the interrogation of John Brennan, nominee for CIA head, whom the New York Times calls the “chief architect” of the drone killing program, resolved the matter by making the white paper public.

            That apparently decided President Obama. On February 6, the White House announced it would make the full texts of the secret memos available to Congress. We’ll all surely see them eventually.

Not OK

            For the moment, we already have something semi-substantive. We should have had it long ago. This is not Kafka’s Mitteleuropa. It’s our government and our information. We should not have had to wait for leakers to get our hands on it.

            Next time, I’ll discuss what we have learned about the legal rationale as we know it by then.

[1].         And I leave aside the fact that the document is not captioned a declaration of war. See my discussion of Congressional declarations of hostilities that stop short of war here.


Copyright (c) Jack L. B. Gohn