Blog Credo

The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.

H.L. Mencken

Tuesday, March 6, 2012

Targeted Killings: The New Probation

Attorney General Eric Holder gave a little speech where he talked about how it's OK for the government to kill Americans without a trial.

While there will be an understandable and predictable outrage from the libertarian left and right, I see a little bit of what he's arguing.  He's right that due process and judicial process are not one and the same.  He's right that certain circumstances - being in Freaking Yemen - render regular judicial processes moot.  The US does not summarily execute suspected terrorists in the US.

This, however, is a logical and problematic outcome of creating a Global War On Terror.  Yes, in a war time environment, you have a right to kill your enemies.  But because the GWOT is essentially endless, this right that the government has carved out for itself becomes open ended and murky.

And I think the murkiness is the problem.  Because the evidence against Al Awlaki is secret there can be no open due process.  Rumor has it that there was some sort of review panel, but there was not a due process that was openly, transparently arrived at.  Grand juries are not open processes where each side gets to make their case.  And grand juries almost always indict.  I can't help thinking that whatever due process mechanism that has been set up for targeted killings is not a balanced, competitive process whereby advocates for the accused are given time and resources to prove their case.  And since - post 9/11 - the presumption has been protect America first, you really are relying on the personal judgments of people who are effectively unaccountable to the law or the public.

I am willing to hope that the people who are responsible for these decisions are weighing these awesome responsibilities carefully and with great consideration for the possibility that they may be wrong.  On the other hand, at some point we're going to have another Cheney type figure who will just say, "Off with their heads!"

Holder's legal logic meets a minimal level of lawyerly soundness.  There is a due process for finding against American citizens who might be involved in Al Qaeda, but you can't and never will know what that process is, how it works or what level of proof is necessary to "convict" someone and effectively sentence them to death.

It is, in short, not the law that is being broken here, but the principles of the rule of law and the idea that governmental officers should be held accountable to the public for their actions.

Of course, on the other hand we probably execute more innocent people in the US by judicial due process than we do American members of Al Qaeda by Star Chamber.  For me the issue lies somewhere worse than "troubling" but not quite "outrageous".

But we will likely trundle along down this road until someone gets killed who shouldn't have been killed and it's so egregious that we can no longer turn a blind eye to this.  And for all of those who ARE outraged, don't think that staying home and not voting for Obama will change anything.  Each president builds upon the edifices of those that came before him.  President Romney won't walk back from this.  (President Paul might, but c'mon!)  It's now stuck in our response to terrorism.  It is entirely dependent on the men and women who run it, because it is not transparent.

So you better pick the best people to run it.  That's weak tea, I know, but it's all I got.

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