Fabricated Terminology

by Dave Schuler on February 5, 2013

International legal scholar Mary Ellen O’Connell condemns John Brennan and the Obama Administration as being to targeted killings what the Bush Administration was to torture:

Four years ago, John Brennan withdrew from consideration for C.I.A. director because of his leadership role there while serious human rights violations were occurring, including waterboarding and secret detention. Mr. Brennan has said he regrets these practices. Yet he moved from the CIA to the White House, where he began to support a practice many consider worse than torture: targeted killing.

Brennan has been a champion and defender of attacks by C.I.A. drones that have killed thousands of people, including hundreds of children, far from any battlefield. These killings have occurred in Pakistan, Somalia and Yemen. Defense Secretary Leon Panetta has recently said the killing is likely to expand to Libya, Mali and Nigeria.

Panetta, Brennan and others in the Obama administration defended these lawless killings the same way the Bush administration justified the unlawful treatment of detainees. Officials in both administrations have sought to win public support and overcome opposition by repeatedly asserting that what they are doing is effective and lawful. The tactical parallels are striking.

To create an illusion of legality, both administrations coined new labels for unlawful practices. President Bush’s people coined the term “enhanced interrogation methods” to describe torture, and are still asserting that waterboarding is not torture but an effective, necessary tool to keep the country safe.

Brennan unveiled the phrase “hot battlefield” in a speech at Harvard Law in September 2011. A “hot battlefield” is the type found in traditional armed conflicts, where enemy fighters are killed without warning and it is permissible to also kill civilians, as long as their deaths are unintentional collateral damage and not disproportionate to the military objective.

The CIA is killing civilians away from “hot battlefields,” but according to Brennan, there are other types of battlefields that are not “hot” but nevertheless lawful places to intentionally kill targets and unintentionally those nearby.

Read the whole thing.

Mary Ellen is an old, old friend. Haven’t seen her for years. Very smart woman. Judging by the picture she’s holding up pretty well.

She deals mostly with the legal and moral issues. For curmudgeonly pragmatist old me the question of effectiveness is also important. I see very little evidence that targeted killings are effective in making us more secure other than in a tiger repellent sort of way.

Unfortunately, the American people have already expressed their opinion on this subject. Whichever candidate won the election, the killings would have continued regardless of demonstrable effectiveness. Haven’t seen any tigers, have you? It must be working!

{ 27 comments… read them below or add one }

PD Shaw February 5, 2013 at 8:00 pm

I certainly disagree with the complaint of illegality. Yoo’s interpretation of “torture” was upheld by the immigration courts, including the Eighth Circuit Court of Appeals in Cherichel v. Holder. Its not the only interpretation out there, but it stands scrutiny as being wrong. I think people confuse law and morality and prudence. Something that is one may not be the other, and in difficult situations all three may never exist at the same time.

The American people might be more prone to action if they weren’t lied to all the time. They were told that the law was clear and without complications and all you had to do was get rid of the bad people who disregarded it. And I assume those that cared, who believed the lies are now completely disenchanted and cynical.

steve February 6, 2013 at 6:40 am

PD- DO you think they would uphold Yoo’s interpretation now? People like to think judges are not influenced by current events. I dont buy that.

Steve

PD Shaw February 6, 2013 at 9:00 am

steve, yes. The Cherichel case was decided in 2009 with Holder as A.G.; the SCOTUS refused to review it in 2010. The complaining party brought to the court’s attention a 2004 OLC memo that specifically retracted the Yoo memo and its reasoning. IIRC human rights professors submitted briefs to the court, arguing that the administration and the courts were perpetuating a discredited legal doctrine (which is how I found out about it).

“Torture” is not merely a crime; the government is precluded from deporting illegal immigrants likely to face “torture” in their home country. Its useful for the government to use a restrictive interpretation of “torture,” or else amnesty is effectively given to every resident of a third world country likely to be in trouble with his or her government. In 2002, someone in the DOJ got a hold of the Yoo analysis and used it without identification in a an immigration deportation proceeding, and the Board of Immigration Appeals adopted it as its own. That Board of Immigration decision (In re J-E (2002)), has been cited hundreds of times by lower bodies dealing with the issue of “torture,” and was relied upon by the Eighth Circuit Court of Appeals case above.

Courts take notice when Congress does not change the language of a statute in response to judicial rulings; its a form of ratification. Even when they are troubled by the earlier ruling, courts may find it better for the legislature to “fix” the problem than complicate matters by overruling their own decision.

PD Shaw February 6, 2013 at 9:02 am

I should add that I don’t know that Obama is doing anything illegal either. I’m troubled by the apparent scope of the drone wars, but I’m not aware of why it would be illegal even to target U.S. citizens with it.

PD Shaw February 6, 2013 at 9:54 am

. . . but I also want Congress to be able to do oversight here.

steve February 6, 2013 at 10:01 am

Thanks PD.

Steve

jan February 6, 2013 at 10:33 am

Arbitrarily killing people by drones may be legal, but it apparently is not palatable to many in the MSM. Bob Beckel, Ed Schultz, Rachel Maddow are but a sample of the presidential media fan club who appear ‘uncomfortable’ with this policy.

KT McFarland, a conservative military analyst, while not expressing any repugnance in drone kills, does see troubling unintended consequences in their overuse. She cautioned that extending the scope of their use (such as has been done under the Obama Administration) gives us a video game kind of mentality in offing people. While we distance and/or desensitize ourselves from face-to-face violence, those, targeted on the ground do feel the pain caused by drones. Thus, we may be creating even more ‘hate America’ animosity than we can possibly understand. She went on to also remind us that the furor over Bush’s torture allegations was over 3 people being water-boarded. This new drone policy, though, indiscrimately ‘kills’ people. Let’s see, torture of 3, versus death of many — which is worse? Oh, the former is ‘legal,’ so then it’s ok?

Finally, McFarland, brings up the queasy possibility that when our foes finally master our drone technology (which they eventually will), what kind of precedent are we setting for them using arbitrary drone kills on us, in this country?

Therefore, it is very possible that Obama’s short-term lethal military applications, much like his short sighted inept domestic ones, may have dire consequences in the future.

Icepick February 6, 2013 at 12:28 pm

Bob Beckel, Ed Schultz, Rachel Maddow are but a sample of the presidential media fan club who appear ‘uncomfortable’ with this policy.

Not enough that they won’t bury the story if it hurts electoral prospects for their beloved party and Dear Leader. Let me guess, now that Dear Leader has been anointed again they’re making concern face on TV?

what kind of precedent are we setting for them using arbitrary drone kills on us, in this country?

This is a non-starter of an argument. The people we’re talking about saw the heads off of people and put it on-line for bragging purposes. They’ve flown planes full of people into buildings full of people and danced in the streets with joy over the results. They’re willing to strap bombs onto their children in the hopes of killing a few of their enemies. Think they would blanch at this whether we do it or not?

Drew February 6, 2013 at 2:03 pm

“Not enough that they won’t bury the story if it hurts electoral prospects for their beloved party and Dear Leader. Let me guess, now that Dear Leader has been anointed again they’re making concern face on TV?”

Maddow and Beckel might actually have real reservations. Schultz is a cretin and basically despicable human being not fit for anything but the zoo.

“This is a non-starter etc……”

Exactly. Its like trying to rationalize with John Wayne Gacy or the Unibomber………or Bill Ayers.

PD Shaw February 6, 2013 at 4:09 pm

It would help me to understand the criticism of Obama’s drone policy on legal terms if I knew what those same people thought about Clinton’s use, or attempted use, of missiles to attack Bin Laden before 9/11. That was done without the AUMF on the grounds that killing him was an act of self-defense against an imminent or ongoing threat.

A relatively few people thought that was an illegal assassination attempt, an illegal act of war with a country we were not at war with, etc. I don’t agree, but I understand that.

Some are satisfied by the fact that bin Laden is not a U.S. citizen. I understand that as well, but that ship sailed a long time ago. The Supreme Court does not agree with your concern (unless bin Laden was brought to Gitmo and then the Law of Gitmo must be consulted).

Some would like an independent judge reviewing such decisions to provide oversight. I find judicial review of information fed to them about foreign operations outside of any judge’s realm of experience to be possibly worse than no oversight at all.

Some complain that these people the people being targeted by drones are not bin Ladens in terms of importance, which I agree with. But this is all a legal head fake; the administration is not truly operating under a self defense rationale, they are operating under an associational test originating from the AUMF. Imminence isn’t relevant.

Andy February 7, 2013 at 12:02 am

Ms. O’Connell’s op-ed, IMO, suffers from two big flaws:

First, Congress isn’t even mentioned. It’s fine to oppose nominees for whatever reason(s) one wants, but the Administration’s policies, and those of administration appointees, don’t exist in isolation. I think O’Connell makes a mistake frequently made by others – she focuses too much (exclusively, actually) on Presidential preferences and hopes to change policy through legalistic arguments, electing or appointing “better” leadership and/or by forcing the issue through the courts. PD Shaw explained better than I could why the legalistic arguments will go nowhere, but the bigger problem is the absence of criticism of Congress and the AUMF from the debate. Since the AUMF is the foundation for these policies, I have to wonder why Ms. O’Connell and so many others neglect to even mention them.

But there is an even bigger issue than that. Personally I find the notion of deference to executive power dangerous and IMO, Ms. O’Connell in this op-ed tacitly supports it by ignoring Congress’ role in these affairs, to say nothing of the failure to criticize Congress for not taking corrective measures.

Secondly, there is this:

It is surprising to me that anyone feels the need to actually see these secret memos. International law clearly makes waterboarding, secret detention and targeted killing away from battlefields unlawful. The fact these practices have continued after the writing of the memos demonstrates the analysis is window dressing.

Emphasis mine. First of all, the emphasized sentence seems to presume that targeting killings are A-OK as long as they are not “away from battlefields?” So if an American AQ member is the Khost Bowl it’s perfectly fine to drop a JDAM on his mud hut? Also, I think anyone who has an understanding of where these strikes take place would have a hard time believing that Yemen or the Pakistani hinterlands are not “battlefields.” After all, the reason we’re sending drones there is because the governments of Yemen and Pakistan are unable to militarily occupy and defeat insurgent forces in these areas. Regardless, I am aware of no such distinction that mentions “battlefields” in international law.

From my perspective I can describe some alternative distinctions in a few different ways. For one, there is a difference between military and covert actions. Presumably Ms. O’Connell understands the difference (debatable as it is) between what is colloquially referred to as the “title 10 vs. title 50 debate.” That is, by definition, a legalistic debate.

Another way to draw the distinction, based more on history and strategic theory, is to differentiate between warfare and other violent means to achieve political ends. This is really, though, about the same issues as the title 10 vs title 50 debate, just on different plane.

A third, more moral distinction, is between targeting functional areas vs targeting individuals. Few have any issue with attacking command-and-control nodes/facilities/functions and, in the process, killing hundreds in an enemy organization. We’ve done it dozens of times over the past few decades with few complaints. Everyone agrees that command-and-control functions are legitimate military targets and they always have been. By contrast, targeting individuals, quite naturally, strikes us as, at least, more problematic. So what happens when the functional element in an organization you’re at war with is one person or a very small group of individuals?

And so, this is a very short preamble to what I see as the real problem with the whole “debate,” such as it is, which is the obfuscation of these distinctions in political arguments and, more importantly, the broken structure of our present national security system. The issue is not really killing Americans – after all we have, historically, had little problem with killing Americans who sided with the enemy. What’s novel, or made much easier thanks to drones, is the ability to specifically target them as individuals.

To bring this full circle I would go back again to Congress. It is the AUMF which allowed two administrations to interpret their legal authorities to be whatever policy they wanted to pursue. It is Congress which consistently fails to even talk about national security reform beyond moving pucks on the an org chart. It is Congress, not the President or the courts, which should determine the division of labor, if you will, between military forces and our intelligence and other agencies when it comes to kinetic action or even if there should be such a distinction at all. (Here’s an interesting paper on that which PD might enjoy). These are, like the AUMF, issues only Congress can address. Unfortunately, Congress seems quite happy that such “debates” are focused on the White House and the courts.

So to conclude a longer-than-intended post, I personally share many of Ms. O’connell’s concerns about targeted killings, but I do not buy into her legalistic arguments which ignore Congressional malfeasance.

Dave Schuler February 7, 2013 at 8:01 am

That’s a good critique, Andy. A couple of observations. Congress’s specific objections in this matter are that the executive branch hasn’t given it the information necessary for it to perform its oversight function. It’s excessive to blame the Congress for that.

For the last twelve years (at least) we’ve had the situation that the executive branch has fomented a series of what would amount to constitutional crises in the name of security. Congress’s primary recourse is impeachment and in the highly politicized circumstances of today that would be meaningless. One house would vote to impeach mostly for political reasons and the other would reject the impeachment, also mostly for political reasons.

Congress has other recourses but they all suffer from the same problem: they couldn’t be implemented for political reasons. Usually I’m the first to blame Congress but not in this case.

Let’s go back to your highlighted snippet:

International law clearly makes waterboarding, secret detention and targeted killing away from battlefields unlawful.

I think that Mary Ellen is overreaching with the phrase “targeted killing away from battlefields”, unless the definition of battlefield is distorted beyond recognition.

I think that CIA wetwork is wrong, full stop. Practically by definition it’s not subject to adequate oversight. It will inevitably be abused. The distance between “dangerous enemy” and “troublesome political opponent” is shorter than any of its advocates suppose. Additionally and significantly, I don’t think that we as a society have the social conditioning necessary to make the fine distinctions that would be required to render it moral.

There’s also the matter of cost-benefit. I don’t think that we need to act unscrupulously and, therefore, shouldn’t. To my eye the main cost is the abandonment of coherent moral suasion on any matter, a significant ceding of ground to our opponents, and inuring ourselves to criminal conduct in the name of the greater good. When you walk up to an unarmed man, no immediate threat to you, and shoot him, it’s wrong no matter who he is.

Dave Schuler February 7, 2013 at 8:09 am

Risking a reductio ad Hitlerum, let me give an example of the problem that I see. I think that most people would say that if you could walk up to Hitler and shoot him in 1943, you should do it. How about 1936? How about 1925? Why not just shoot everybody you don’t much like? Why not shoot everybody your friends don’t much like? Why not just shoot anybody?

PD Shaw February 7, 2013 at 8:43 am

Thanks Andy, I’ll take a look at it. I know that Kenneth Anderson has written a lot about the purported “away from battlefields” limitation, which he doesn’t think exists. I haven’t read much about the issue because it seems obvious that any right of self-defense implicitly involves attacking the enemy or the enemy’s capabilities before hostilities.

Dave Schuler February 7, 2013 at 8:46 am

it seems obvious that any right of self-defense implicitly involves attacking the enemy or the enemy’s capabilities before hostilities

Only if attack is imminent, not merely if it is possible.

Icepick February 7, 2013 at 8:58 am

When you walk up to an unarmed man, no immediate threat to you, and shoot him, it’s wrong no matter who he is.

Is the above statement still true of you change immediate to imminent?

PD Shaw February 7, 2013 at 9:06 am

I think the problem with the Hitler analogy, is that nobody thinks we’re attacking a Hitler, we’re attacking members of a group, (similar to NAZIs), but doing so after hostilities had been joined. So, this is more like a situation arising after WWII, if certain NAZI party members fled to the mountains of Transylvania and joined up with German nationalists in that area to form an insurgency that was difficult to root out because Romania was either weak or indifferent to their activities, and plus we didn’t like the communist government anyway. I think we would be more than justified to use military force against these NAZIs as a continuing threat, but there are a number of strategic issues about how or the extent we should do so.

Dave Schuler February 7, 2013 at 9:13 am

The problem with that, PD, is that the administration isn’t just going after people who are a threat to the U. S. They’re going after people who are a threat to the governments of Afghanistan or Pakistan or Yemen or Mali. Some of the people they’re going after were children in 2001. Might they be a threat to the United States? Anybody might be. Where are the boundaries? The administration won’t even reveal its decision-making process.

I’m sure that some of those being assassinated are bad dudes. Is “bad dude” enough to justify homicide?

Dave Schuler February 7, 2013 at 9:16 am

I think the answer to your counter-example is that if we’re really worried about a handful of Nazis hiding in the Transylvanian Alps we should tighten up on our own border security rather than invading or attacking Romania. If your problem is with the Romanian government, then attack Romania. If you don’t want to attack Romania, don’t just ignore everything and prosecute covert activities wherever you please.

Dave Schuler February 7, 2013 at 9:24 am

In answer to your question, icepick, no, there’s no difference. If U. S. forces had come upon Hitler, unarmed and unprotected, they were under obligation to arrest him rather than just killing him. There were explicit orders to that effect, as I’ve documented here before. Deliberately and intentionally killing unarmed people is murder even in war time. Killing unarmed people while bombing a munitions factory is not “deliberately and intentionally”.

Did we murder people during World War II? Yes. Those were crimes not war and they were prosecuted when found out.

Dave Schuler February 7, 2013 at 9:26 am

A complicating factor is that I don’t think we were fighting Nazis in WWII. I think we were fighting Germans.

Icepick February 7, 2013 at 9:53 am

If U. S. forces had come upon Hitler, unarmed and unprotected, they were under obligation to arrest him rather than just killing him.

That’s great, but if a drone isn’t a US force capable of landing and arresting someone, unarmed or armed. If we had had drones and they discovered Hitler having a gay romp at Berchtesgaden they would have taken the shot.

And it is all well and good to cite US morality during WWII, but we didn’t have any. We murdered entire cities, for example. I’ve quoted Chuck Yeager’s account of being sent on missions late in the war in Europe where the sole purpose was to destroy anything that moved, including individuals. If a young girl was out leading her cow home from pasture, the pilots were under orders to kill her. And they did. In his autobiography Yeager recounts a pre-mission briefing, and leaning over to tell another pilot that they’d damned sure better win the war or they’d all be hung for that. I seem to recall Stephen Ambrose recounting similar stories in one of his books.

War is hell, and that isn’t just some cliche. And frequently, even during our “good” wars, that has been official US military doctrine. See WWII and the Civil War.

Icepick February 7, 2013 at 9:58 am

Not to mention the US morality during WWII of first ignoring that war for over two years, and then aligning ourselves with a regime every bit as evil and heinous as the Nazis or the Imperial Japanese.

PD Shaw February 7, 2013 at 10:12 am

The analogy isn’t entirely apt, but I do think people need to wrestle with the notion that preemptive or preventive action is being taken within the context of actual past hostilities, we’re not dealing simply with speculative fears of future events. I don’t see why America would try to kill Hitler before WWII; if he had fled the aftermath of WWII to a remote and lawless place, the U.S. would have pursued him using whatever force was most appropriate, including drones if they had the technology.

Dave Schuler February 7, 2013 at 10:30 am

What’s being missed is that we’re not fighting for our survival. We’ve fighting because it’s more convenient to do so than the alternatives. There are all sorts of measures that would have plainly prevented the attacks in 2001 but we haven’t taken any of them. Why? Inconvenient.

I’ll give examples: denying visas to foreign nationals, restricting the movement of foreign nationals within the United States, withdrawing our forces from the Middle East, ending our various subsidies for oil consumption, not removing Saddam Hussein from Kuwait, having removed Saddam Hussein from Kuwait removing him from Iraq, too. Just to name a few. None of these were matters of national survival. All were matters of convenience or political expediency.

Icepick February 7, 2013 at 12:35 pm

What’s being missed is that we’re not fighting for our survival.

Hitler was going to invade Delaware?

TastyBits February 7, 2013 at 2:59 pm

What about firebombing Dresden and Tokyo? Civilians were intentionally targeted to break the will of the enemy.

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