Two significant events happened on Thursday: (1) the Democratic-led Senate rejuvenated and expanded the War on Terror by, among other things, passing a law authorizing military detention on U.S. soil and expanding the formal scope of the War; and (2) Obama lawyers, for the first time, publicly justified the President’s asserted (and seized) power to target U.S. citizens for assassination without any transparency or due process. I wrote extensively about the first episode on Thursday, and now have a question for those supporting the assassination theories just offered by the President’s lawyers.
To pose that question, I’d like to harken back for a moment to the controversy over the Guantanamo detention system. Democrats universally purported to be appalled that the Bush administration was indefinitely imprisoning people without any charges or due process. Barack Obama, as a Senator from Illinois, denounced “the Bush Administration’s attempt to create a legal black hole at Guantanamo” — i.e., that people would be put in cages, possibly forever,with no charges. But Bush lawyers offered a theory for why due-process-free imprisonment was justifiable.
The theory had these four fairly simple premises:
(1) Terrorism is not primarily a criminal offense. It is an act of war. Thus: We Are At War With The Terrorists.
(2) Those who try to harm the U.S. as part of this War are combatants and Terrorists — not criminals — and are thus entitled to no due process or any other rights to which accused criminals are entitled. It is the U.S. military (led by the Commander-in-Chief) — not courts — which decides who is and is not a combatant and Terrorist.
(3) Whether someone is a combatant or Terrorist is decided by only one thing: the President’s unilateral decree. Once the President decrees someone a combatant or Terrorist — including one of his own citizens — that person by definition becomes one, and he can then be treated as such without any further judicial process or Constitutional protection. Once that presidential accusatory decree issues, protections of the Constitution and law disappear. In sum, presidential accusations that someone is a Terrorist are the same as proof and a verdict of guilt.
(4) Unlike virtually every other war ever fought, the “battlefield” of this War is not found where opposing forces are shooting at each other, but is rather defined as: wherever an accused Terrorist is found anywhere in the world. Thus, the President’s battlefield powers — which are limitless: unilateral targeting for death, indefinite imprisonment without charges, spying on communications without any oversight – are not confined to any geographical location, but instead can be applied everywhere. Wherever an accused combatant or Terrorist physically exists — sleeping in a bed, riding in a car with his children, thousands of miles away from any actual shooting — is the “battlefield.”
Those were the once-controversial theoretical premises offered repeatedly by Bush lawyers and other defenders to justify the Guantanamo detention system. More generally, these theories were (and remain) the heart and soul of the neocon view of the War on Terror. Once you accept those four premises, there is no coherent way to oppose Guantanamo. So here is my question:
At this point, do Obama defenders reject any of these four premises? I mean this literally: I cannot count how many times I have heard exactly this same theory offered by Obama supporters justifying his assassination powers (the President is entitled to target citizens for death because we are at War, and once you take up arms against the U.S. (meaning: once the President accuses you of doing so) you have no due process rights). Indeed, there simply is no possible way to defend the assassination powers claimed by Obama without embracing each of these theories. And therefore, here is what Obama lawyers said on Thursday:
U.S. citizens are legitimate military targets when they take up arms with al-Qaida, top national security lawyers in the Obama administration said Thursday. The lawyers were asked at a national security conference about the CIA killing of Anwar al-Awlaki, a U.S. citizen and leading al-Qaida figure. . . .
The government lawyers, CIA counsel Stephen Preston and Pentagon counsel Jeh Johnson, did not directly address the al-Awlaki case. But they said U.S. citizens do not have immunity when they are at war with the United States.
Johnson said only the executive branch, not the courts, is equipped to make military battlefield targeting decisions about who qualifies as an enemy.
When Obama lawyers refer to “U.S. citizens who take up arms with al-Qaida,” what they mean is this: those whom the President accuses (in secret, with no due process or evidence presented) of having taken up arms with al-Qaida. When they refer to “battlefield targeting decisions,” they do not mean a place where there is active fighting, but rather: anywhere in the world an accused Terrorist is found (leaving no doubt about that, Johnson decreed that the limits of “battlefield v. non battlefield is a distinction that is growing stale“). In other words: the whole world is the battlefield, a claim Obama officials have long embraced, and someone is a Terrorist the minute the President declares him to be one: the President is the sole judge, the sole jury, and now even the sole executioner.
So my question to defenders of Obama’s assassination powers is this: which of those four core Bush/Cheney War on Terror premises do you reject, if any? Given the theories used to justify Bush/Cheney powers — ones that were just repeated almost verbatim by Obama lawyers when asked about the Awlaki assassination — how can anyone coherently have objected to the Bush/Cheney Guantanamo detention system but support Obama’s assassination powers now? Indeed, if anything, the Obama assassination powers are more extremist than the Guantanamo detention system; that’s true for two reasons: (1) Bush/Cheney imprisoned foreign nationals at Guantanamo, whereas Obama has targeted U.S. citizens with death (foreign nationals captured on foreign soil have – according to the Supreme Court – far less Constitutional protections (if they have any) than U.S. citizens, who retain Constitutional protections no matter where they are); and (2) death-by-CIA-drone is obviously a more draconian deprivation than imprisonment at Guantanamo. In sum, how is it possible to support Obama’s assassination powers without embracing each of those four theories used to justify Guantanamo?
Once you have embraced those theories offered by Obama lawyers, you have, by definition, embraced the Bush/Cheney War on Terror (indeed, as Marcy Wheeler documents, those Obama lawyers even explicitly defended the very theories used by Bush DOJ lawyers to justify the Bush NSA eavesdropping program and sweeping secrecy powers; Obama DOJ lawyer Marty Lederman, for instance, announced: because of secrecy powers, “we’re in armed conflicts with some groups the American public doesn’t know we’re in armed conflict with“). During the Bush presidency, I spent years arguing — without opposition from a single progressive, literally — that the two most radical and dangerous premises ushered in by Bush/Cheney were these: (1) the whole world — including places where this is no shooting or fighting — is now deemed a War battlefield (which means unlimited Presidential war powers exist everywhere); and (2) presidential accusations of being a Terrorist are now deemed the equivalent of binding verdicts of guilt. Is there any possible way to support Obama’s assassination powers without embracing both of those notions? I’m genuinely interested in hearing answers to that question.
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There is one other point to make about what used to be a leading point of contention between progressives and neocons – the mantra that We are at War with the Terrorists! and must treat accused Terrorists as warriors, not criminals – but has now, in the Obama era, become standard dogma for Democrats as well (you will not have a debate with a defender of Obama’s assassination powers or other War on Terror policies of his without hearing this war sloganeering). It’s hard to overstate how central this We-are-at-War! mentality is to all of these powers being claimed in the name of Terrorism.
But far more than it is a political or legal belief, it’s a psychological need — a deep-seated, eager need — to believe we are at War. It’s really an addiction. For instance, Lindsey Graham — easily one of the nation’s most radical warmongers — is so single-mindedly devoted to insisting that We-are-at-War! that it has become a full-time obsession of his for years. He constantly compares the War on Terror to the war against Nazis (the way neocons, and now the hardest-core Obama defenders, have long invoked the Civil War to justify War on Terror abuses), and even once went so far as to proclaim: “Free speech is a great idea, but we’re in a war.”
But this need to embrace the idea that We-are-at-War! is driven far more by psychological and emotional desires than it is legal or policy views. It’s all about feeling strong and purposeful — we are Warriors for a great cause just like our noble forefathers who won the Civil War and vanquished the Nazis – and has virtually nothing to do with combating Terrorism. This obsession with mandating military detention for Terrorists — when civilian trials have succeeded more effectively than military tribunals in keeping Terrorists imprisoned — underscores its real purpose: it has nothing to do with counter-Terrorism and everything to do with clinging to the psychological purpose bestowed by War. As a recent report from the ACLU put it:
This dynamic of our political discourse has been driven in part by a wholly contrived “debate” over whether the threat of terrorism calls for a “military” or “law enforcement” response, with the former depicted as muscular and the latter anemic. According to this view, punishing terrorists as the criminals they are is derided as a reflection of a “pre-9/11 mindset,” while aggrandizing them as the warriors they claim to be is celebrated as taking the threat “seriously.” But this debate says more about the self-image of the would-be warriors than it does about any realities of counter-terrorism.
What’s most striking to me about this need on the part of so many Americans in both parties to insist that We-are-at-War! is how similar it is to the mindset driving Al Qaeda members. Al Qaeda members are every bit as insistent as America’s little Lindsey Graham warriors that they are not mere criminals, but are combatants engaged in glorious War. Here is how Richard Reid, convicted of attempting to detonate a shoe bomb on an civilian airplane, described himself at his sentencing hearing:
I am at war with your country. I’m at war with them not for personal reasons but because they have murdered more than, so many children and they have oppressed my religion and they have oppressed people for no reason except that they say we believe in Allah.
In reply, the sentencing judge said this — addressing first the U.S. Government and then the defendant:
There is all too much war talk here. And I say that to everyone with the utmost respect. . . . [To Reid:] You’re a big fellow. But you’re not that big. You’re no warrior. I know warriors. You are a terrorist. A species of criminal guilty of multiple attempted murders. In a very real sense Trooper Santiago had it right when first you were taken off that plane and into custody and you wondered where the press and where the TV crews were and you said you’re no big deal. You’re no big deal.
People involved in mere criminal activities — committing them or catching them — are “no big deal.” That’s precisely why both Al Qaeda members and war-obsessed Americans have the same goal: to elevate their conflict, and thus themselves, by viewing themselves at war, as warriors.
Just listen to how vital it also was for Khalid Shiekh Mohammed to see what he was doing as an act of war rather than a mere crime, echoing Lindsey Graham and those in the U.S. who insist that we-are-at-War! The accused 9/11 mastermind clung desperately to the same pretense: that he was a warrior and a combatant in a raging war, just like George Washington and the members of the American military he was addressing at his military commission. As a result, he argued, they should understand that the civilian casualties Mohammed was accused of causing on 9/11 are simply part of what every “military man” does:
What we find here is that the extremes on both sides of every conflict eventually come to mirror one another perfectly. Israelis settlers and Hamas have an equal desire to prevent a peace agreement and for the same reasons. American neocons and extremists in Iran have an equal desire to inflame conflict between the U.S. and Iran and end up thinking exactly alike. And Al Qaeda members and the we-are-at-war! extremists in the U.S. have a convergence of mindsets as well (see here to understand how Lindsey Graham is as deranged and bloodthirsty as anyone in the world). Historian Richard Hofstadter, in his influential 1964 Harper‘s essay entitled “The Paranoid Style in American Politics,” described perfectly how the extremists on two sides of a conflict are almost always identical (and, in doing so, he emphasized, accurately, that this dynamic “is not confined to our own country and time; it is an international phenomenon”):
The paranoid spokesman sees the fate of conspiracy in apocalyptic terms — he traffics in the birth and death of whole worlds, whole political orders, whole systems of human values. . . . He does not see social conflict as something to be mediated and compromised, in the manner of the working politician. Since what is at stake is always a conflict between absolute good and absolute evil, what is necessary is not compromise but the will to fight things out to a finish.
Since the enemy is thought of as being totally evil and totally unappeasable, he must be totally eliminated — if not from the world, at least from the theatre of operations to which the paranoid directs his attention. This demand for total triumph leads to the formulation of hopelessly unrealistic goals, and since these goals are not even remotely attainable, failure constantly heightens the paranoid’s sense of frustration. Even partial success leaves him with the same feeling of powerlessness with which he began, and this in turn only strengthens his awareness of the vast and terrifying quality of the enemy he opposes.
The enemy is clearly delineated: he is a perfect model of malice, a kind of amoral superman — sinister, ubiquitous, powerful, cruel, sensual, luxury-loving. Unlike the rest of us, the enemy is not caught in the toils of the vast mechanism of history, himself a victim of his past, his desires, his limitations. He wills, indeed he manufactures, the mechanism of history, or tries to deflect the normal course of history in an evil way. . . . It is hard to resist the conclusion that this enemy is on many counts the projection of the self; both the ideal and the unacceptable aspects of the self are attributed to him.
The Enemy — which America’s warriors maintain and glorify with their endless we-are-at-War! fixation and in whose name Endless War is waged and civil liberties are destroyed — is, indeed, “on many counts the projection of the self.” There’s a good reason why Al Qaeda members and American would-be warriors are both equally desperate to maintain the we-are-at-War! mindset: it’s what gives them purpose and justifies everything they do.
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One last point about these we-are-at-War! advocates: The Atlantic‘s Jeffrey Goldberg yesterday compiled establishment news reports documenting the multiple acts of war directed at Iran: explosions, murders of their scientists, cyber warfare, and he asked: Is Iran Already Under Attack by some combination of the U.S. and Israel? I wrote about the same question earlier this week in the context of Roger Cohen’s New York Times column which essentially argued (and celebrated) that the U.S. and Israel are already waging a covert war against Iran (Cohen wrote that it “would take tremendous naïveté to believe these events are not the result of a covert American-Israel” effort). Just consider how amazing that is: so war-obsessed is America’s political and media culture that it seems indisputably clear that the U.S. Government — in total secrecy, without any remote legal basis — is involved to some unknown degree in multiple acts of war against Iran, and nobody seems to notice or care or even want to know what the U.S. Government is doing in this regard. If you feel like you need to attack countries in total secrecy, Mr. Commander-in-Chief, go ahead: no need even to tell us. That is what this we-are-at-War! mindset produces.