Wednesday, February 6, 2013

Romancing the Drones

The title of this post is of course derived from the movie Romancing the Stone, "romancing" apparently being jewelers' jargon for preparing a stone for use in jewelry.  "Preparing the Drones" seems an appropriate title for this post accordingly, though "romance" here may have other connotations as well.  Drones seem to be the weapon of choice for our government these days, but there is no reason to think they are or must be the only choice in pursuing its policy regarding American citizens and others who are believed to pose a threat.

The "White Paper" of the Department of Justice regarding the circumstances in which American citizens may legally be killed without due process in foreign countries is a most interesting document.  At the time this post is being typed, it can be found in toto through the good offices of NBC News, which has thoughtfully inserted its name and its stylized peacock feathers all over it, on every page, thereby assuring that we know it is, indeed, being provided by that organization, and also assuring that portions of it will be difficult to read.

To a lawyer, the document will be familiar in some sense, as lawyers even in the private sector regularly render legal opinions in the form of memoranda for clients and other lawyers.  Its purpose is familiar enough as well.  Lawyers are asked whether doing X would be legal, and if the issue is an important one, will intensely research and write a careful memo which states an opinion, normally qualified in various respects.  That is, clearly, what happened in this case. 

But to most lawyers, the content and the conclusion would be unfamiliar and to use a word which has been used to describe the opinion, "chilling."

The memorandum specifically refers to American citizens in foreign countries.  I suppose it's reassuring in a way that the government feels citizens do not loose their status by venturing outside the boundaries of the U.S.  I see nothing in the memo which would indicate its rationale is necessarily limited to circumstances in which this is the case, however, though a portion of the analysis assesses the implications of this fact, as the DOJ list as a consideration to be given in determining whether lethal action is appropriate the refusal of a foreign nation to cooperate.  When capture is feasible, the DOJ feels lethal force would not be legal.  Capture, presumably, would be.  This presents due process issues as well, of course, but one would think that if the DOJ's opinion is that killing an American citizen without according due process rights is legal, capturing one would be as well.

An American citizen must be a senior operational leader of al-Qa'ida or an "associated force" to be eligible, as it were, to be killed. The words "associated force" are intended to refer to "co-belligerents" as defined in the laws of war.  As no war has been declared, this may give one pause, but the DOJ believes that the Congress has given the Executive authority in combating al-Qa'ida which is the equivalent of powers in wartime, and that's good enough as far as it is concerned.

An American citizen having this status must pose an "imminent threat", but the DOJ construes this broadly, in fact so much so that the word "imminent" seems to be redefined if not disregarded.  For example, a citizen may be deemed an imminent threat and therefore subject to annihilation if he was involved in planning or participating in real imminent threats to the U.S. in the past, and there is no evidence that he has renounced or abandoned such activities.  One has to wonder just what evidence would suffice. 
It's difficult for someone even with my astounding abilities to summarize the entirety of the 16-page document in this post.  The lawyers who prepared it are not fools, and the memo is peppered with references to the sanctity of life and the great significance of the rights of citizens, cautionary language and qualifications.  But the fact is that the determinations which are to be made before killing a citizen is legal according to the DOJ are based on considerations which are general and not easily made in practice, the potential for error due to imprecise or inaccurate information is significant, and the discretion necessarily accorded to an official responsible to decide whether lethal action is appropriate will therefore be considerable.

There may be instances when such action is necessary and appropriate, and indeed I think it is difficult for those who deliberately refuse to exercise their due process rights to maintain that they must be given them nonetheless.  They may be said to have waived them in that case, particularly where they have left the U.S. to avoid prosecution without seeking the assistance of a court.   And, it's very difficult to mourn the passing of avowed terrorists.

But the DOJ has sanctioned the exercise by the government of a great deal of discretion indeed when it comes to deciding whether a citizen is to live or die, without providing for any kind of check or review by a court or by Congress.  And though the memo addresses Americans in foreign countries, the rationale would seem to have application for those of us here, as well.

This document serves to exemplify the extent to which terror (or war) can render a government repressive.  Unfortunately, it will also doubtless be seized upon by radical anti-government individuals and organizations as evidence the government is out to get them and, of course, their beloved guns.  It will likely be used to prevent any action or efforts to obtain reasonable gun control.

It's said that a Roman citizen could on claiming himself to be one (civitas Romanus sum) be entitled to a hearing before the emperor regardless of the charge being made against him and wherever he was in the empire; a right exercised by St. Paul.  The Empire was a brutal oligarchy/dictatorship, but also had a genuine respect for law and process, or at least the form of the law if not its substance--the Romans were great lawyers and jurists as well as soldiers, and their law still influences the Western world even now.  This document reflects respect for the form of the law, but a tendency to disregard procedural and substantive due process rights in certain circumstances which are vaguely defined and which could be applied in other circumstances as well.  This is a dangerous document and policy. 

No comments:

Post a Comment