Sunday, October 9, 2011


It's hard to be precise about this because all my information is at least third hand.  You know, the guy who claims he read it told someone else who believed him and who then told me.  Or something like that.
What I'm talking about here is the alleged 50-page memorandum supposedly prepared by the Office of Legal Counsel in the Justice Department that purportedly said that it was just peachy for the CIA to fire a drone and kill and kill Anwar al-Awlaki.  Charlie Savage, writing in the Times, says that the memo
was described on the condition of anonymity by people who have read it.
I have no reason to doubt that.  Nor do I have any reason to doubt that Savage's anonymous sources gave him accurate information.  In fact, I believe those things.
Still, I generally have a healthy (or unhealthy, depending I suppose on how you feel about it) skepticism of hearsay, so I begin with the double qualifiers:
  1. It might all be bullshit.
  2. The Times might have left out something that would, at least in some way, change the analysis.
That much said, here are the pertinent (and lengthy, sorry) excerpts (from the Times, not the memo, which you'll recall we haven't seen, though if anyone wants to leak it to me, with some serious evidence that it's the real thing, I'll post it).
The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.
. . .
Mr. Awlaki was accused of helping to recruit the [underwear bomber].
Mr. Awlaki, who was born in New Mexico, was also accused of playing a role in a failed plot to bomb two cargo planes last year, part of a pattern of activities that counterterrorism officials have said showed that he had evolved from merely being a propagandist — in sermons justifying violence by Muslims against the United States — to playing an operational role in Al Qaeda in the Arabian Peninsula’s continuing efforts to carry out terrorist attacks.
Other assertions about Mr. Awlaki included that he was a leader of the group, which had become a “cobelligerent” with Al Qaeda, and he was pushing it to focus on trying to attack the United States again. The lawyers were also told that capturing him alive among hostile armed allies might not be feasible if and when he were located.
Based on those premises, the Justice Department concluded that Mr. Awlaki was covered by the authorization to use military force against Al Qaeda that Congress enacted shortly after the terrorist attacks of Sept. 11, 2001 — meaning that he was a lawful target in the armed conflict unless some other legal prohibition trumped that authority.
The memo goes on, Savage says, to conclude that killing Al-Awlaki wouldn't be a prohibited assassination because he isn't a political leader but "a lawful target in an armed conflict."  
And it wouldn't be murder because he was a lawful target and his killing would "in compliance with the laws of war."
And it wouldn't violate the laws of war a civilian rather than a soldier because, er, well, Savage doesn't even try to explain that one.
And there's no Fourth Amendment problem because it would be reasonable to kill him and no Fifth Amendment problem because the government decided he should be killed and when the government decides something that's due process.  (OK, Savage doesn't put it that way, and my guess is that neither does the memo.  But really, that's the gist of it.)
It also cited several other Supreme Court precedents, like a 2007 case involving a high-speed chase and a 1985 case involving the shooting of a fleeing suspect, finding that it was constitutional for the police to take actions that put a suspect in serious risk of death in order to curtail an imminent risk to innocent people.
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.
A week ago, I wrote that killing al-Awlaki was unconstitutional.  The short version of why is that the Constitution does not contain blanket authority for the government (even on direct orders of the President) to just go ahead and do whatever it wants and that the Fifth Amendment in particular prohibits government deprivations of life "without due process of law."
Due process, alas for those who demand absolute clarity from the Constitution, is a fuzzy thing.  Chief Justice Burger, writing for the Court in Morrissey v. Brewer, explained (I'm retaining Google's hyperlinks).
Whether any procedural protections are due depends on the extent to which an individual will be "condemned to suffer grievous loss." Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 168 (1951) (Frankfurter, J., concurring), quoted in Goldberg v. Kelly, 397 U. S. 254, 263 (1970). The question is not merely the "weight" of the individual's interest, but whether the nature of the interest is one within the contemplation of the "liberty or property" language of the Fourteenth Amendment. Fuentes v. Shevin, 407 U. S. 67 (1972). Once it is determined that due process applies, the question remains what process is due. It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. "[C]onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action." Cafeteria & Restaurant Workers Union v. McElroy, 367 U. S. 886, 895 (1961). To say that the concept of due process is flexible does not mean that judges are at large to apply it to any and all relationships. Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.
Got that? I'll pare it down for you.
[T]he question remains what process is due.
And the answer will vary.
[N]ot all situations calling for procedural safeguards call for the same kind of procedure.
Which pretty well captures how the government generally tries to squirm out of the constitutional messes it makes for itself.
Gosh, golly.  No flies on us.  Close enough for government work.
Which is, of course, the veriest bullshit.  
We need to keep the folks in Gitmo there forever because they're all really really bad guys.  Really.  And we know that because they wouldn't be there if they weren't.  No need to double check. Because we said so.  Someone made the decision.  That's the process that was due.
And then there's procedure, and damned if 2/3 of the folks aren't released because gee, they're not really the really really bad guys.  
But we didn't make any mistakes about the others.  And you can be sure.
Because we said so.  Someone made the decision.  That's the process that was due.
And well, darn it, someone looked at the evidence and decided that al-Awlaki was just the kind of guy who it was proper to kill.  And it was proper to kill him because he was just the sort of guy that someone looked at and decided he was the sort of guy it was proper to kill.
Because we said so.  Someone made the decision.  That's the process that was due.
And he posed an imminent threat, which is what made it OK, even though the threat wasn't imminent because, you know what I mean.  And someone looked at it and decided it was OK.  
Because we said so.  Someone made the decision.  That's the process that was due.
Which, of course, is the Law of Rule.
Not the Rule of Law.

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