The Obama administration’s targeted killing program is disturbing for its elastic definition of “imminent threat” and its absence of independent review, but it’s not Skynet and it’s not happening in the U.S. (More)
“I’ll be Bach,” Mrs. Squirrel said, imitating Arnold Schwarzenegger’s character in The Terminator as she left to gather ingredients for dinner.
“And we’ll be Haydn,” the twins Nancy and Michelle replied with a giggle.
I don’t know if their reply was from one of the movies, as I haven’t seen them all. A human pretending to be a robot pretending to be a human is a rhetorical Möbius strip. Like some of the ‘theories’ currently percolating around the internet about the Obama administration’s targeted killing program.
I’ll admit that program bothers me even more after the Department of Justice white paper released yesterday. Joan Walsh explains one of the reasons in her excellent article at Salon:
Specifically, where Attorney General Eric Holder insisted such attacks would only be used to deter “imminent threat of violent attack,” similar to the rights police officers have to kill a suspect in a hostage situation or impending terror attack, the white paper clarifies what that means – or rather obfuscates – in chilling language:
The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States 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.
I understand that not everyone suspected of illegal activity will get arrested and stand trial. For example, Jimmy Lee Dykes, the 65-year-old Alabama man who killed a bus driver and held a 5-year-old boy hostage for six days, did not get arrested. A rescue team approached the hatch of Dykes’ underground bunker with what he thought was a delivery of food and other items for the boy. Instead a team member dropped a flash-bang grenade through the hatch. Dykes fired a shot, and the rescuers shot and killed him. The boy was unharmed and today he’ll celebrate his sixth birthday.
As Walsh notes in her article, most Americans accept that situations like the Dykes hostage standoff, and recognize the parallels to attempts to capture terrorists who are about to kill Americans. But as Walsh also notes, the DOJ white paper defines “imminent threat” so loosely that vague plans of possible future attacks might meet the threshold.
While many in the media stress the fact that this program has targeted U.S. citizens, to me that seems beside the point. Put another way, our standards for targeting a non-citizen should be no different than our standards for targeting a U.S. citizen. The issues are the imminence of the threat and the feasibility of capture. Jimmy Lee Dykes was a U.S. citizen, and he was targeted by the hostage rescue team in Alabama. And from what we know of that situation, Dykes should have been targeted.
But the hostage rescue team’s action in Alabama will be publicly reviewed, and that is my other problem with the Obama administration’s program. Lawfare‘s Steve Vladeck explains it well:
It’s the process that we’re all interested in – how, exactly, the government decides that the various criteria it articulates for these strikes are met, who is in the room when such decisions are made, and whether anyone tries to argue the opposite side. Accepting, as I do, that there are necessarily some number of cases in which the government may lawfully use lethal force even against its own citizens, the issue reduces to how the government decides that such a case is presented – and what checks there are to minimize false positives… Nothing in the white paper provides any further elaboration on this point – and because of that, it’s that much more mind-boggling that it took this long (and even then, only through a leak) for even this discussion to be publicly disclosed.
Vladeck explains the legal questions in some depth, and concludes:
This all leads me to what I’ve increasingly come to believe is the only real solution here: If folks are really concerned about this issue, especially on the Hill, then Congress should create a cause of action–with nominal damages – for individuals who have been the targets of such operations (or, more honestly, their heirs). The cause of action could be for $1 in damages; it could expressly abrogate the state secrets privilege and replace it with a procedure for the government to offer at least some of its evidence ex parte and in camera; and it could abrogate qualified immunity so that, in every case, the court makes law concerning how the government applies its criteria in a manner consistent with the Due Process Clause of the Fifth Amendment. This wouldn’t in any way resolve the legality of targeted killings, but it would clear the way for courts to do what courts do – ensure that, when the government really is depriving an individual of their liberty (if not their life), it does so in a manner that comports with the Constitution – as the courts, and not just the Executive Branch, interpret it. It’s not a perfect solution, to be sure, but if ever there was a field in which the perfect is the enemy of the good, this is it.
Walsh and Vladeck offer very reasoned criticisms, and Vladeck offers what seems an eminently sensible solution to ensure that actions against suspected terrorists overseas meet the same constitutional standards our government applied in Alabama. Those who voice such criticisms do not undermine our president. They safeguard the rule of law that is at the heart of our system of government.
And then there are the other critics, who claim this program is the birth of Skynet as predicted by James Cameron in The Terminator. Some of these crackpots say the program has been turned on gun industry supporters. These conspiracy theories, like too much of our political dialogue, are an exercise in future schlock: “Sure, that’s what they say now, but what if they start to [insert paranoid fantasy here]?”
Progressive Democratic activists must resist the impulse to lump Walsh, Vladeck, and other reasoned critics of this program together with that paranoid fringe.
Good day and good nuts.