28 Sep The Real Reason Progressives Support the ACLU/CCR Lawsuit (Updated)
Ben Wittes at Lawfare and Adam Serwer at TAPPED traded posts today on the government’s motion to dismiss the ACLU/CCR lawsuit. I think the exchange — particularly Wittes’ response to Serwer — illustrates perfectly why discussions about national security between conservatives and progressives always seem to have a Pinteresque quality. Here is the point to which Wittes responded:
I think it’s really easy to get sucked into acquiescing to this kind of authority out of the belief that terrorists are really scary, or that such powers only apply to “the bad guys.” On an individual basis, some of these arguments may seem really reasonable. But ultimately, like Greenwald and Marcy Wheeler, I can’t get past the fact that what they add up to is the idea that the president can have someone executed on his say-so based on mere suspicion of a crime, as long as it declares doing so a state secret. We’re so frightened of terrorism that we forget that there’s a reason democracies limit the government’s legitimate use of force, particularly against their own citizens. It’s hard to imagine a more direct or final deprivation of liberty without due process.
I’d only add that whether or not al-Awlaki is a very bad person is irrelevant to the question — which is whether or not the president has the authority to kill anyone he wants with no judicial review based on having simply labeled them a terrorist. If due-process rights only applied to “good people,” they wouldn’t be rights, and if the government can deprive you of such rights merely by labeling you a “bad person,” then ultimately none of us is safe.
And here, in relevant part, is Wittes’ response (emphasis mine):
So the real authority is limited not just by geography and governance but by the nature of the target himself. That is, the president may only target an American national when when he has concluded in good faith that this person is either covered by the AUMF or poses a sufficiently-immediate threat to the country so as to trigger its right to self-defense.
In other words, Adam’s fear that “the president can have someone executed on his say-so based on mere suspicion of a crime” does not describe the claimed power properly. The better description would read: “The president has the power to target a U.S. national whom he concludes in good faith is meaningfully at war with the United States, who lies beyond its law enforcement capacities, and whose capture he cannot effectuate without undue risk to forces.”
This response completely misses the point. Wittes treats Serwer’s claim as fundamentally one about the class of people who can legitimately be killed — hence Wittes’ insistence that we are not talking about killing “criminals,” but only killing terrorists “at war with the United States.” Serwer’s claim, however, is only secondarily (if at all) about the class of Americans who can be summarily executed. His basic point is about the process used to determine whether an American falls within that class. Serwer believes — as do I, as do most progressives — that, except in the most desperate circumstances, no American should be summarily executed without judicial review of the President’s claim that he is “at war with the United States.”
Unfortunately, Wittes simply ignores the issue of judicial review, as is evident from his claim that the “better description” of the President’s claimed power is “[t]he president has the power to target a U.S. national whom he concludes in good faith is meaningfully at war with the United States, who lies beyond its law enforcement capacities, and whose capture he cannot effectuate without undue risk to forces.” Notice what is lost in that redescription: Serwer’s insistence on a meaningful judicial check on the President’s power.
Put more simply: progressives don’t trust the President to make such determinations in good faith. Not President Bush, not President Obama, and certainly not President Palin. We will defer to the President — in the hope that he or she will genuinely act in good faith — when the U.S. is possibly faced with an imminent terrorist attack. (As the ACLU/CCR lawsuit makes clear.) But we insist on judicial review when the threat of an attack is merely speculative. (And recall, Wittes has admitted that he does not believe imminence is required for the use of deadly force against an American; he believes such force is also justified whenever “the individual is covered by the AUMF, reasonably interpreted” — an explicitly non-temporal criterion.)
Wittes concludes his post with the following (emphasis mine):
Now, I don’t mean to suggest that this power is less than awesome. It is terrifying. Indeed, I can think of only a few things in this space more terrifying than a presidency with the power to kill its citizens, even under these very limited circumstances. One of them, however, is a presidency that lacks this power–one barred by law from attacking citizens even when those citizens make war against it and when it has no other available means of neutralizing them.
Once again we see the disconnect. No progressive is arguing that the President should be “barred by law” from killing Americans who pose an imminent threat to the security of the U.S. We are not even arguing that the President should be “barred by law” from killing an American who does not pose such an imminent threat. Instead, we argue that the decision to kill an American who does not pose an imminent threat should be submitted to law — to the judicial process — not left to the “good faith” of the President.
Differently put: progressives are not asking for Presidents to be barred by law; conservatives are asking that they be exempted from it.
UPDATE: Jack Goldsmith responds to my post by arguing that it “is not right to claim that those who support the President’s authority to make such decisions free from judicial review do not believe in legal constraints on the presidency.” No, they simply believe that the only applicable legal constraints are those that the Executive imposes on itself. Indeed, after touting the untestable claim that “the program under review in Al-Aulaqi was thoroughly vetted by scores of lawyers across many agencies, with precise limitations and guidance attached,” Goldsmith then admits that those “legal constraints” are, in fact, not constraints at all: “There is, moreover, a very good argument that our fundamental law, the U.S. Constitution, commits wartime targeting decisions to the President alone, subject to his self-compliance with law” (emphasis mine). I’ll leave it to readers to decide whether such unreviewable “self-compliance” qualifies as a “legal constraint.”
On D-Day around 2500 patriotic Americans gave their lives to defend their country. Although every solider who came ashore knew that he might die, none have been given access to a lawyer, or due process in a courtroom. Every officer in command knew that some percentage of the men under him would die that day. They also knew that they would be shooting at and killing German soldiers, and maybe some of those soldiers would hold dual German and US citizenship.
Now it appears that it is OK as far as you are concerned for the executive to order the deaths of thousands of US citizens, as long as they are patriotic Americans who are fighting to defend our country. You only have a problem when the same executive orders them to shoot at one Traitor who makes war on the US and seeks to kill Americans, even women and children. You trust the President to make the hard call that kills patriots, but you would take away from him the power to order the death of enemy soldiers and transfer that job to some judge. The existing Constitution doesn’t allow that, so I suppose you need to begin by rewriting it.
There is no judicial process in war. There never has been, and never will be. There is no judicial standard for making military decisions. What precisely is a judge supposed to decide before ordering the attack on Omaha Beach? What exactly is the courtroom procedure for deciding about the landing on Iwo Jima? What exactly is the contest when deciding about the Doolittle Raid?
The military decision is legally and logically the same whether the target is an enemy division, a platoon, or a single enemy soldier. It is the same without regard to any additional citizenship the enemy soldier happens to hold.
If you insist on some sort of judicial review, then tell us how it works. Remember there is no criminal charge here. The only question is whether someone is an enemy soldier (or combatant). So this is some sort of civil procedure. Now are you willing to kill someone based on a preponderance of the evidence, or what is the standard and why? Can you decide to kill someone in abstentia, since he cannot be present in the court room. He cannot even be served. Who represents him, when he cannot be served and has no opportunity to chose representation? Where is the Article III controversy? He is charged with no crime, nor is there any issue of domestic statutory interpretation (enemy combatants are defined under international law, not domestic law). Wouldn’t the bill of rights prohibit such a hearing? Wouldn’t the ABA refuse to allow it?
There certainly was an opportunity for such a proceeding if it had ever been possible. In the Civil War every enemy soldier was a US citizen. No judge issued a warrant for the corn field at Antietam, or an order for Little Roundtop.
So if you want this sort of thing, amend the Constitution to create the process, and then fill in all the missing pieces so the idea at least makes sense. Simply complaining that there should be “some judicial review” because an American happens to join a foreign enemy army and because you personally don’t trust the executive does not answer any of the million very hard questions that must be addressed to turn your discomfort into an actual process.
@ Howard Gilbert
Of course, the crux of this situation is that you start from the premise that being accused is equal to being guilty. My question: how do we know a certain individual “is an enemy soldier (or combatant)?” Especially when that individual is not present on any battlefield, and curiously not charged with violating any laws.
This is the question we should be asking and a judge should decide. Once the President is allowed to claim you are guilty where does it end? I accuse you of being a burglar. Presto you are a burglar!
To avoid this sort of sillyness we have invented this waste of time called presumed innocent … and that quaint thing due legal process. Absent such checks and balances we essentially have a dictatorship. The Leader offers a guilty verdict by decree.
What we should be asking is “why is it impossible to ask a judge (in camera if necessary) to review the evidence and then rule on the matter?”
…starting with avoiding stupid wars would be a good beginning, you might actually avoid needless killing. And of course I am NOT referring to Normandy, but to Iraq and to the ‘war against terror’.
It is only a few countries in the world that consider terrorism not a crime but an act of war. The whole spin on terrorism constituting acts of war creates the premise that the paradigm must be combatant/non-combatant and justifies disproportionate use of force, thus unjustified killings. This is a choice the US did and from this choice/premise all the consequences follow. Maybe it is time to revisit the premise, however politically difficult this might be, and revert to the ordinary criminal law paradigm. This probably means getting engaged in inter-state judicial cooperation, capacity-building and, yes, the ICC (which could deal with terrorist acts under various headings). Not too flashy, does not look as good as an aircraft carrier with banners on Mission Accomplished, but what 100+ countries around the world consider useful in combating international and transnational crime.
Would the US accept if Iran and North Korea started killing US citizens (Rumsfield, Cheney, Clinton…) by drone attacks because their Presidents decided that they are terrorists? Or, to put it more concretely, if for instance Allende had decided to target Kissinger and Nixon and kill them because Nixon was planning to organize a coup against the legitimate Chilean government on September 11, 1973? Would the US just say: well, it is war, what can you do? Ins’t international law applicable to everybody?
[…] Heller says that progressives “argue that the decision to kill an American who does not pose an imminent […]
I am quite sympathetic to the position that the President and his subordinates must be afforded discretion to determine who or what should be targeted in the context of an actual armed conflict. However, I am highly suspicious of the claim that an individual is an imminent threat to the U.S. simply by “making war” against it, whatever that means.
If a citizen presents an imminent threat to a specific person, then that citizen may be targeted in self-defense without judicial review. If a citizen is a member of an armed hostile organization engaged in armed conflict with the U.S., or even taking a direct part in hostilities against the U.S., that person may be targeted without judicial review. In either case, the decision to use force is not vested solely in the President by the Constitution. It is subject to review after the fact in a court with appropriate jurisdiction, if any, but not usually before. The Supreme Court has been relatively clear that the government can exercise the rights of both belligerent and sovereign over those properly deemed an enemy. (See The Prize Cases, and others.) However, the Court has also engaged in post hoc review over many of those decisions in appropriate cases.
The correct reply to Goldsmith’s response would first note his book, where he stated that “all OLC lawyers and Attorneys General over many decades” for Presidents of both parties are “driven by the outlook and exigencies of the presidency to assert more robust presidential power, especially during a war or crisis, than ha[s] been officially approved by the Supreme Court or than is generally accepted in the legal academy or by Congress.” This is the crux of the problem. Rather than seek an objectively correct view of the law, Harold Koh told the ASIL that Executive Branch attorneys “are expected to look to the previous opinions of the Attorneys General and of heads of this office to develop and refine the executive branch’s legal positions.” Columbia Law Review will soon be publishing an excellent article by former OLC and White House lawyer (Columbia law professor, and genuinely good guy) Trevor Morrison arguing for the application of Stare Decisis in the Office of Legal Counsel. Hopefully it will also publish my response indicating the dangers of myopic Executive Branch legal interpretation and breifly offering an alternative to how Executive Branch attorneys should view their role.
I consider myself neither conservative nor progressive. I simply seek an accurate understanding of the law, as it seems to me that all government lawyers should. Starting with one or the other ideology, or with an institutional focus, (or both, as John Yoo did) risks infecting one’s legal analysis with confirmation bias. From a purely objective standpoint, we should ask whether this admittedly extreme exercise of executive power may be premised on what Goldsmith called “a very good argument that…the U.S. Constitution, commits wartime targeting decisions to the President alone, subject to his self-compliance with law” or on an objective legal analysis and conclusion that it does. I vote for the latter, and submit that it is unlikely that a truly objective analysis would yield this result.
I apologize that my comment lost its paragraph formatting in the transmission.
This is International Law. The individual is either a combatant or a civilian. The question is whether he is subject to targeting under DPH as a member of an armed unit of a non-state party to a non-international conflict who is engaged in continuous combat function.
There is no doubt that he is a member of AQAP. He has released public statements to that effect. Therefore, there are two questions: is AQAP part of an armed conflict and is he engaged in continuous combat function. Since this is not a criminal charge, he is neither guilty nor innocent.
He may be a criminal. He may be a terrorist. These are charges unrelated to the current decision. Even bringing them into the discussion is prejudicial, just as bringing evidence of an unrelated criminal conviction is prejudicial to a criminal trial. You should be able to make the combatant/civilian decision without using words like “guilt”, “innocence”, or “terrorist”, and if you can’t then you should not be part of the discussion on either side.
The question of whether AQAP is part of an armed conflict with the US might plausibly be argued in court, but since it is a matter of military and foreign policy that seems the wrong venue. The question of combatant status is typically decided “on the ground”.
When a soldier sees someone in an enemy army uniform, he opens fire on someone who is presumptively a combatant. When a soldier sees someone who is dressed as a civilian, then DPH rules require that he begin by assuming that person to be a civilian unless there is evidence that he is a combatant. This may be unfair to the soldier, but the ICRC says that we have to accept this unfairness. In any event, the decision between “civilian” and “combatant” has to be made on the spot by a low ranking member of the military based on his own split second observation and judgment.
In this one unusual case we have a specifically identified person in hiding who has been individually designated as a combatant by top ranking commanders using intelligence sources. The legal status of the decision does not change somehow based on the decision maker and distance. If 99.999% of the time this decision has to be made by PFC Smith in the second before someone dressed as a civilian fires an RPG at him, then in the 0.001% of the time when the decision can be made at a higher command level based on real evidence considered objectively, there is no plausible constitutional theory that transfers the decision from the military to a court. You can certainly pass a statute to add additional protections to the decision making within the executive, but to transfer the decision you have to amend the Constitution.
At the bottom of all this is the notion that “rule of law” translates directly and only into “judicial review.” That the only way to ensure we are operating under a “rule of law” is to have judicial review of these decisions (and this notion extends beyond the present targeted killing topic). In fact, in the present case, the President is operating in accordance with the “rule of law” if he determines that the action is authorized by Congress–this is “rule of law” per se. Not only the judiciary constitutes a “check” on the executive power. If someone were to argue thhat the President exceeded his statutory authority, that conflict between the legislative and the executive is precisely the sort of thing the judiciary was created as a separate branch to officiate. The other basis–that the President believes in good faith that a suspect poses an imminent threat–is most assuredly a worrisome standard–worrisome in that the stakes are so high should the power be abused–but on what foundation other than a sentiment is it proper for a progressive to assert that only by case-by-case judicial review of each executive decision on this basis is “rule of law” preserved?
From this discussion, it appears that the judge is a kind of black box with mysterious but infallible powers. We drop a potential case of targeted killing into the hopper and out comes a Yes/No decision after he or she conducts “judicial review”. What is it about the judicial review process that makes it infallible while a review by the President and his advisors is not? Could not the major judicial review skills be learned by others, or is some kind of magic going on?
Ed’s right. In fact, we should just abolish the judiciary. If judges haven’t gone to Hogwarts, that whole silly separation of powers/checks-and-balances thing is obviously pointless.
No no, I wouldn’t dream of abolishing the legal profession. All I’m asking is to observe that the procedures that it uses in decision-making are not unique. Even the judge (like the president) may be mistaken. The President is not infallible and neither is the judge.
Or perhaps the procedures are unique. Then, perhaps, they can be to some degree explained to the rest of us illiterates (including the President) so that we can make better decisions.
I would never suggest that judges do not make mistakes. I would simply say that they are less likely to do so given the nature of the process by which they reach their decisions.
I think Prof. Goldsmith raises an interesting point. IF (and this is a big IF) scores of lawyers are in fact meaningfully vetting the Executive’s targeting decisions, then I don’t think that this kind of review is necessarily inferior to judicial review. Presumably a court that reviews targeting decisions would be modeled on the secret FISA courts, which, though preferable to no review at all, have generally tended to act as a rubber stamp.
However, Prof. Goldsmith’s argument is undermined by the fact that he has mused that the job of OLC attorneys may be to tell the administration what it can likely get away with. Certainly after the Bush years, one can understand Kevin’s reluctance to put too much faith in government attorneys as a curb on executive power.
If the President’s team of lawyers, working at the pleasure of the President, assure him that it is legal for him to act in a certain way, then who are we to think that their advice is anything but reasoned and true?
Goldsmith of all people must know that following one’s conscience, in disagreeing with the wishes of the administration, means offering one’s resignation at day’s end. Didn’t Goldsmith state the reason for offering his own resignation was Goldsmith’s withdrawing Bybee’s/Yoo’s memos contrary to Pres. Cheney’s/Vice Pres. Addington’s wishes?
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