I confess, I was having a hard time getting too worked up over the leaked DOJ White Paper describing the legality of the Administration policy for assassinating American citizens abroad who are supposedly actively working against our interests. But then I was asked by a serious person I take seriously to write about it “from a lawyer’s perspective”.
So I read it, and I find myself in what seems to me to be an odd place with regard to it: opposing another lawyer who I respect a lot…Mark Levin. Earlier this week, I was listening to Mr. Levin when I was driving home from work, and he was talking about how he thinks that the media that is actually talking about it (as the usual suspects have been expectedly silent on the matter) is wrong, and that as a Constitutional scholar, he has no problem with it. As I listened with a measure of surprise to him talking about it, I wondered what it was that was in the white paper that left him so unconcerned about it (because I hadn’t yet read it). My takeaway was that the conservative media’s opinion on it tries to take war off the battlefield and put it in the courtroom, which is what we expect the left to do, with the abortive attempt to give Kalid Sheik Mohammed a civilian trial, and to have civilian proceedings for GITMO detainees as well, and because these al-Qa’ida leaders, US Citizens or not, are trying to kill us.
I remain unconvinced, largely because in this case, Mr. Levin is wrong. (And with this statement, my chance to ever have him sign my copies of Men In Black, and Liberty and Tyranny go straight down the toilet.) And someone needs to say so, even if he is unlikely to take notice, or care.
Why is the estimable Mr. Levin wrong? I’m glad you asked.
First, the KSM trial, and a lot of GITMO detainees are NOT citizens. I know it has been Demcong policy for decades to devalue the worth of citizenship, spearheaded by their constant attempts to give away many of the benefits to those who have not earned it, or made any attempt to lawfully attain it, and bolstered by their constant cultural attempts to balkanize us with “identity politics” and the inevitable hyphens that accompany it, and their moral relativism, which stubbornly maintains that there is nothing exceptional about being American, and there is nothing that makes our culture better than anyone else’s, despite the sometimes frantic attempts people from other nations will make to come here, and live and breathe FREE. But if the essence of American conservatism is an appreciation of the freedoms we have guaranteed to us, then it also means that citizenship means something.
This isn’t a new idea, and it isn’t even a uniquely American idea. In the Bible, the Apostle Paul was a Roman citizen. His ministry was offensive to Rome, and in some cases, breached the Pax Romana…an offense worthy of death for those who weren’t citizens. But in Paul’s case, it meant that he had rights that not every person who lived in the Roman Empire had. Among those were the right of a citizen to not be summarily executed on the authority of a government functionary. And today, nations recognize that citizenship affords rights and privileges, and these are not casually given away to those who do not have that status. Heck, even Mexico treats its citizens much differently than non-citizens. Don’t believe me? Try to sneak into their country along their southern border. Accepting the idea that any citizen can be targeted for assassination on the say so of the President, or ”an informed, high-level official of the U.S. government”, even within the framework of the test set forth in the White Paper is unacceptable because it further cheapens the concept of citizenship.
Mr. Levin is also wrong with his argument that to oppose the practice and adhere to the idea of due process is trying to drag war into the courtroom the same way that leftists would like. Resistance to an assassination protocol for American citizens is distinguishable from an abortive and ill-conceived attempt to try KSM in Manhattan if for no other reason than KSM is NOT an American citizen, and as such does not have the same due process rights as a citizen. While there are instances where a representative of the government may end up killing a citizen without due process, those situations are NOT necessarily ones where death of that citizen is the reason why that action is taken. Suicide by cop doesn’t happen because the cop has marked the citizen for death. It happens because that citizen (or not, in some cases) does something to deliberately put someone else in danger, and the police have to act in order to protect the public, or themselves. A U.S. citizen who is on a battlefield shooting at our forces could likewise expect that they are going to be killed, but again, the difference is that there was not a mission planned and dedicated to the sole purpose of ending that citizen’s life.
The White Paper itself sets forth the following test for determining if it’s ok for our federal government to snuff a U.S. citizen in a foreign country:
“In the view of these interests and practical considerations, the United States would be able to use lethal force against a U.S. citizen, who is located outside the United States and is an operational leader continually planning attacks against U.S. persons and interests, in at least the following circumstances:
(1) where an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States;
(2) where a capture operation would be infeasible—and where those conducting the operation continue to monitor whether a capture operation becomes feasible; and
(3) where such an operation would be conducted with applicable law of war principles.”
Of course, this standard raises all manner of questions that should be asked. “Who is “an informed, high-level official”? A Cabinet Officer? A member of the Joint Chiefs of Staff? A czar? The Commissioner of the Internal Revenue Service? The Senate Majority Leader? The standard as it is set forth in the White Paper is incredibly nebulous. The Imminent Threat standard as set forth in the White Paper raises questions as well. On page 7, the White Paper makes clear that this requirement “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.” While this was followed by a somewhat unconvincing argument that such a burden would reduce American defensive options, the explanation really goes off the rails at the end.
(what constitutes an imminent threat “will develop to meet new circumstances and new threats….It must be right that states are able to act in self-defense in circumstances where there is evidence of further imminent attacks by terrorist groups, even if there is no specific evidence of where such an attack will take place or of the precise nature of the attack.).”
Got that? We use the word “imminent” without defining it, claim self-defense without having to prove what we’re defending against, because we think that people who don’t like us are going to do something bad, somewhere, at some time. Sure. That’s certainly enough to allow government to deprive a citizen of their right without due process.
The next question is “Who is it who is monitoring who decides if capture is feasible?” This is a fair question, if only because this administration has proven to not necessarily be inclined to give much credence to the military’s recommendation on various operation that it has been tasked to accomplish. I’m not sure that there is much incentive for the “informed, high-level official of the U.S. government” to consider an option that isn’t as easy as using a Predator drone and smoking the citizen.
Finally, if this is “to be conducted with applicable law of war principles”, aren’t we back to bringing the war into the courtroom, just as Mr. Levin wants to avoid? Hasn’t one of the main arguments against the war in Afghanistan been the rules of engagement that have hampered and even endangered our soldiers?
The White Paper also goes to great lengths to point out that the policy applies to “senior operational leaders of al-Qa’ida or an associated force”. Who decides who is a senior operational leader? Who decides what is an associated force? And why is this process not subject to some kind of oversight?
While the White Paper lays out a legal foundation establishing the legality of this practice sufficient enough to give cover to a Wise Latina Woman or Laney Kagan, I cannot support it, not only for the reasons stated above, but also for the reasons not stated by Mr. Levin, or the authors of the White Paper.
I discussed this for a while with a friend who believes that this policy is just fine, because guys like Al-Zwahiri have “committed treason” against this country, and acted in a fashion that is inconsistent with citizenship by plotting to kill Americans. My problem with this is that Treason is actually the only crime set forth in the Constitution, and the standard of proof is specifically set forth in the Constitution, in Article 3, Section 3:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
While treason is punishable by death, unless you are killed in the act of committing it, the state may only impose this penalty if you are convicted of it. While this standard was drafted before the due process requirements of the 5th and 14th Amendments, it comports with them. And, unless you are a naturalized citizen, a conviction for treason will NOT result in the loss of your citizenship, as only naturalized citizens may be involuntarily stripped of their citizenship. The only way for a natural-born citizen to lose their citizenship is by renunciation according to 8 U.S.C. 1481(a)(5).
Finally, my last objection is my lack of trust in government. Government has proven to us time and again that there is no power that it won’t abuse at some point. And we currently have an executive branch that doesn’t respect the Constitution as it is, whether it is determining for itself whether or not Congress is in recess for the purpose of making appointments, or by brazenly declaring that the President decides who is “entitled” to Second Amendment rights. I would have trouble trusting a different administration with such a nebulous authority to abrogate basic Constitutional rights, let alone one that believes that the President can determine who is entitled to exercise Constitutional rights. Citizenship means more than that, or we have allowed them to render it worth little or nothing at all.