by Joe Scarry
Now that it is available online, every American should read the Justice Department memo approving the targeted killing of Anwar Al-Awlaki.
There is a lot in the memo, much of it recitation of precedents, and teasing apart of legal categories like “non-international armed conflict” and “public authority,” and the parsing of the precise definition of terms like “taking no active part in hostilities” and “unlawful killing.” Readers with law degrees could spend years dissecting it. And once you get into it, it can be easy to miss the forest for the trees.
That’s where being a non-lawyer comes in handy. Because if you don’t know enough about legal theory to become fascinated with the minutiae, you are more inclined to sense the big thing that is missing here, namley, the “facts” upon which the government based its decision to go to war against Anwar Al-Awlaki.
The memo seeks to circumvent the rule of law — in which a person is charged with a crime, a trial is conducted (including presentation of evidence, contesting of evidence, and findings of fact and findings of law), a verdict is reached, and in the event of a guilty verdict a sentence is passed, after which the sentence is carried out — and replace it with a justified act of war.
But what is missing in the “targeted killing” memo are the evidence, the contesting of the evidence, and the finding of fact. And by offering nothing to make up for the jettisoning of these parts of the process, the U.S. government leaves us unconvinced that abandoning legal process can be justified.
Let’s face it: the Obama administration and the rest of the U.S. government know that they have a big problem: they want to go to war against anyone they suspect is an enemy — and skip the rule of law. They wish that a miracle could happen and everyone would just let them do it.
The closest they can come is some hand-waving and fast talk, ending with the words, ” . . . and that’s why we can skip legal process and go to war against (fill in name here),” and then hoping like hell that Americans fall for it.
But Americans aren’t such pushovers. Sure, not every American has figured out what’s going on yet. But they will. And when they do, there will be political consequences for the leaders that have been trying to pull the wool over all of our eyes.
If the public will join us in asking the question “Who decides?” about drone executions, I believe they will rapidly come to realize that they are utterly dissatisfied with what the government is saying.
Eric Holder addressed a group of Northwestern Law students and others. Afterward one audience member summed up the speech as he left: “He pretty much said he can kill anyone he wants.” The details of that speech will turn you more topsy-turvy than anything Alice experienced when she ventured through the looking glass.
By now, everyone knows about theNew York Times article describing Barack Obama’s personal administration of drone killing around the world. What few people are willing to face up to is that Obama 2012 partisans actually see this as a way to get a lot of Americans to like Obama: “This is the candidate; you MUST support him!”