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Yet More On Holder


Bazelon’s piece gets right to the heart of the issue:

If you want to believe that the government does its grim best to fight terrorists, and you’re inclined to think that their dirty tactics justify some ruthlessness on our part, then maybe a few killings of bad guys in faraway lands doesn’t bother you much. But there are a couple of unsettling implications here that are so obvious that it’s amazing Holder thinks he need not address them. The first is that if the Obama administration claims this kind of extra-judicial power for a few cases, what’s to stop the next president from expanding upon it—and citing this step as precedent for taking others that Obama wouldn’t countenance? And the second is that when the executive branch won’t release the legal memos that underlie its decision-making, we’re blocked from evaluating how strong or weak the arguments are. When the federal government takes a bold and new step like this, testing the boundaries of the Constitution, it’s crucial for Holder and his lawyers to explain how and why. Instead, we’re being asked to take the wisdom of the president and his national security apparatus for granted.

The key related issue is that the conflict with Al-Qaeda is more than just police work, but it doesn’t represent a traditional battlefield either. In implicitly leading hard on the AUMF, the administration seems to be argue that it’s both impractical and unnecessary for their to be judicial oversight for actions against Al-Qaeda, but (to put it mildly) this is far from obvious.

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  • Bruce Baugh

    The only part of this I disagree with is about precedents. In the ’90s I took that argument quite seriously. But in the last decade and a half, the Republicans have made it clear that they don’t take Democratic precedents seriously at all, and in fact they’ll often go out of their way both to lie about it and to gratuitously trample a precedent just to annoy their enemies of the moment. Whether it’s good policy or bad, nothing any Democratic administration does will slow a later Republican one bent on anything, at all.

    The rest is excellent, though.

    • Ben

      The last few administrations leave things to be desired as examples for your argument.

      Clinton’s policy of intervention, as well as his Iraq maneuverings, if anything greased the skids for Afghanistan and Iraq. (I wish Scott Ritter wasn’t a kid-diddler, otherwise I’d be name-dropping him more forcefully).

      This goes for the big decisions, mainly. Invading countries, lobbing cruise missiles, etc. I think you have more of a point with a bunch of smaller tactical stuff like torture, treatment of detainees. Though 9/11 was going to change those things drastically anyway. Either way, what Holder’s outlined is pretty big-picture stuff.

      • Bruce Baugh

        Well, I agree that Democratic administrations did in fact set awful precedents. But..hmm, might have to look at domestic proceedings for clearer examples of what I’m talking about – Republicans’ novel uses of the filibuster, for instance, or the sundry government shut-downs, or the debt ceiling crisis. These are the sorts of things that lead me to believe that precedent in other spheres just doesn’t matter either.

        • Ben

          Oh, the more recent Republican craziness in Congress. Yeah I totally agree there are a lot of unprecedented moves there.

          I think a lot of that has to do with the polarization of parties and demographic shifts that have adversely affected the Republicans. That kind of stuff would have more of an influence in Congress than the presidency, I think, especially in foreign policy where presidents have a freer hand to act.

          • firefall

            slightly OT, but … there is no polarisation of the parties. The Republican party has become incandescent and intransigent, but this has not been reflected by any similar move by the Democrats – quite the reverse, they have shown more and more willingness to compromise. Polarisation of the parties is just more sloppy theyre-both-at-fault thinking.

            • Ben

              I may be wrong about this, but the last polisci lit I read analyzing voting patterns found polarization happening for both parties; members of each party vote against the majority of their party less frequently compared to the recent past (80’s and 90’s).

              Republicans probably exhibit more of this behavior, and the Dems voting behavior might just be an artifact of the Republicans going crazy. But under operational definitions of “polarization”, Democrats have been doing it as well as Republicans.

      • Bruce Baugh

        And I hope I’m not coming across as sounding like I think there’s anything at all good to be said for this bit of maneuvering. I don’t – I think it’s both evil and foolish.

    • Scott Lemieux

      I agree; the effect of setting precedents overrated.

  • David Kaib

    Precedents aren’t just legal authority. They create a situation where those who were formally in government feel a need to defend their past choices, and those outside government find if harder to criticize expansions because it raises questions about ones own side. And courts are more inclined to check an aberration than an expansion, for similiar reasons.

  • joe from Lowell

    I don’t know why the specific memos themselves, as opposed to the rationale motivating them (which Holder laid out pretty clearly in his speech), are especially important. Don’t we now have the administration’s legal argument available to consider?

    • Jesse Levine


      • joe from Lowell

        Then why is this the threat thread in which people are discussing the administration’s legal rationale?

        • joe from Lowell

          Third thread, that is.

    • rea

      You don’t want the memos, because you want government officials to get advice not written for the news media spin. No one would ever tell Holder, “this policy is unconstitutional” if there was a chance that the policy would be adopted, and the memo spread all over the internet.

      • mds

        You don’t want the memos, because you want government officials to get advice not written for the news media spin.

        Okay, how about have members of the judicial branch take a peek, as long as they pinky swear not to tweet about the contents? Because right now the legal arguments aren’t subject to review from anyone.

        (And yes, on “national security” matters, the courts have generally been shameful in their deference to executive actions, but at least the door is left open for some outside restraint.)

        • rea

          Because right now the legal arguments aren’t subject to review from anyone.

          The decision-maker’s decision is still subject to judicial review, if there’s a case between people with standing. The decision-maker still has to defend his position to the public, and potentially in court. When decision-makers make decisions, they own them, and have to face the consequences. But, if we want decision-makers to get objective advice, we have to let them keep that advice confidential–otherwise, the advisors’ only safe course is to tell the decision-maker what he or she wants to hear.

          • mds

            When decision-makers make decisions, they own them, and have to face the consequences.

            I appreciate your response, but there’s a flaw in this part, one I can’t quite put my finger on.

            The decision-maker’s decision is still subject to judicial review, if there’s a case between people with standing.

            And as I alluded to, “national security” gets cases summarily dismissed under state secrets privilege, citizens are not permitted to determine if they have standing, etc. al-Aulaqi’s father already tried filing suit, and his case was dismissed for lack of standing. So who would ever have standing? Someone who has already been targeted for assassination who finds out about it, and turns up at the courthouse to challenge it?

            • rea

              Someone who has already been targeted for assassination who finds out about it, and turns up at the courthouse to challenge it?

              If al-Alwaki had been willing to do that, he’d be alive today.

              • dave

                He’d be alive, but he would be physically and psychologically destroyed by solitary confinement and torture. He would also have 0% chance of ever seeing the outside of a jail cell regardless whether he was actually innocent or guilty and regardless of whether he was actually adjudicated innocent or guilty.

                I think any honest person has to admit that, were they in his shoes, they would not have ever turned themselves in.

                • joe from Lowell

                  He’d be alive, but he would be physically and psychologically destroyed by solitary confinement and torture.

                  You mean like the Underpants Bomber? Or the Times Square Bomber?

                  Oh, wait, none of that actually happened. You want to be honest? Honestly take a look at how terrorist suspects have been treated under this administration.

        • joe from Lowell

          Again, why are you solely focused on the memos? Holder just explained the legal rationale. We’re talking about it.

          What are you hoping to get from the memos?

          • rea

            What they are hoping to get, is a contrary memo from one of Holder’s advisors, which they can use to embarrass Holder.

            • Slocum

              He’s not capable of embarassment. They remove those glands when you take the oath of office, unless you lack them already.

            • joe from Lowell

              That’s my impression, too. This pretense that the discussions we’ve been having are impossible is a bit silly, though.

              “Eric Holder’s legal reasoning is completely spurious, and also, we have no idea what it is!”

              • Ben

                The content of Holder’s speech doesn’t give enough information to make a convincing legal case.

                Holder seems to be using Hamdi to justify a distinction between “due process” and “judicial process”, and to say that the court has ruled that the executive can kill a US citizen if she is a senior operational leader of a foreign terrorist organization.

                Can you quote the part of Hamdi he’s using to make those claims?

                Holder quotes two of the three factors the government has to use in depriving people of life, liberty and property set out in a case called Mathews v. Eldridge. The factor he doesn’t quote is

                the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.

                Can you give the legal reason for why the Administration doesn’t have to consider the risk of being wrong or the value of procedural safeguards when taking out US citizens believed to be senior operational leaders of foreign terrorist organizations?

                • joe from Lowell

                  Thank you for the real answer. It only took seven hours for someone to have one.

      • Vance Maverick

        I can maybe see this for writing that’s part of debate leading up to the formation of policy — but for documents that officially underly policy that’s adopted, no. We have a clear interest in exposing this, and the administration ought to feel responsible for making the case properly to the public.

    • DocAmazing

      Don’t we now have the administration’s legal argument available to consider?

      The question answers itself.

      • joe from Lowell

        You mean, since we’ve been discussing the administration’s legal rationale, now, for the third consecutive thread, then it’s obvious that we have the legal rationale?

        I agree.

        • mds

          Okay, joe, could you summarize the administration’s legal rationale, then? Feel free to include the relevant citations that we missed.

          • joe from Lowell

            As a point of principle, I make sure to treat people who are playing dumb with the respect that they deserve based on taking their words at face value.

            What am I, your special ed tutor? The Attorney General of the United States just explained them, at length, in a widely-reported speech, the transcript of which has been linked to multiple times on this very site.

            Subsequently, we have been discussing the merits of the those legal arguments.

            Why you wish to advertise a very implausible ignorance, I don’t know. RTFL.

            • Anonymous

              and yet you complain when you play dumb and people treat you the way you deserve. or are you not playing dumb and you are just dumb

              • joe from Lowell

                Wah wah wah. boo hoo hoo.

                • Slocum

                  It’s amazing that you don’t understand that people want to know the process by which this decision was made. Perhaps not in all the details, but certainly enough to gauge how seriously counter-arguments were made and taken.
                  Quit calling people stupid until you realize that this is the point and that it is a reasonable one.

                • joe from Lowell

                  No, what’s amazing is that people continue to pretend not to know the process by which this decision was made, and the legal rationale for this process.

                  My observation that we now have that rationale? Not amazing at all. In fact, the knowledge that we have the reasoning available to us is so widespread and unremarkable that a couple dozen of us have been discussing it, its strengths and weaknesses and implications, for three threads now.

                  The point that it’s good to know the legal reasoning isn’t stupid; it’s the pretense that we don’t that’s stupid.

            • mds

              Okay, joe, could you summarize the administration’s legal rationale, then?

              So, that would be “No,” then. I suspected as much. Thanks. Now, if you’ll excuse us, perhaps grown-ups like Professors Farley and Lemieux will resume pointing out how substantively weak the content of Holder’s speech is. Because they’re so much stupider than you, apparently.

              • joe from Lowell

                Uh, champ?

                If Professors Farley and Lemieux (are) pointing out how substantively weak the content of Holder’s speech is, then you need to let go of your pretense that we have no idea what was in that speech, and can’t talk about it.

                Nice own-goal.

              • joe from Lowell

                Shorter mds: Holder’s legal reasoning is completely spurious, and also, we have no idea what it is.

                • Jesse Levine

                  As you are so clear on Holder’s reasoning,please educate me as to the following:

                  1. Who are the accusers and who are the adjudicators?

                  2. What happens if the AUMF is amended or repealed?

                  3. What burden of proof is required for the death sentence?

                  4. The U.S. commonly indicts people of different nationalities for crimes committed in foreign nations; why is there not a requirement for indictment before killing of American citizens?

                  5. How can an accused answer charges of which he is unaware and whose blood relative is denied standing to demand to see the charges and proof?

                  6. Do the legal memoranda we civil liberties extermists want to see establish procedural standards for “due process” or leave that to executive discretion?

                  7. Why is this not as bad as, if not worse than, the Star Chamber of 17th Century England(see Wikipedia for the historical and metaphorical context).

                • joe from Lowell

                  1. Executive branch officials in the intelligence and military community.

                  2. If the AUMF is repealed, all of the war powers that are based on it go away. If it was amended, we’d have to see how it was amended.

                  3. “Burden of proof” and “death sentence” are legal terminology that don’t apply to the decision-making process of target selection in a war. There’s really no way to answer this question as asked.

                  4. The same requirements for indictments apply to both US citizens and non-citizens. Indictments are never required to take military action against the enemy in a legal war, regardless of nationality. Criminal suspects under the authority of our civilian law must be indicted, regardless of nationality.

                  5. Is your question about someone who does not know about the “charges” made against him supposed to have something to do with Awlaki? Because he released tapes in which he discussed the United States’ accusations of his involvement with al Qaeda.

                  6. I don’t know what’s in a document I haven’t read. Holder’s speech discussed what the process due to someone in Awlaki’s circumstances is, though. Any thoughts on what he had to say?

                  7. Because this is a declared war, being fought on foreign battlefields, against people outside of the writ of our legal authorities, as opposed to a criminal procedure for handling persons living under the civil code.

                  Except for where you chose inapt legal terms for the purpose of obscuring relevant concepts, none of your questions are the slightest big challenging – while only a few of them have anything to do with the question of why the legal memos, as opposed to the doctrines outlined in the speech, need to be released before we can discuss the administration’s legal reasoning.

                • Murc

                  Holder’s legal reasoning is, unfortunately, rock-solid.

                  This indicates that there are some very deep pathologies at work in and around our legal system.

                • DocAmazing

                  Kinda like Yoo’s.

  • Tcaalaw

    Didn’t Al Qaesa get an Oscar nomination for best supporting actor in Viva Zapata?

    • Anonymous

      I thought al qaesa was a new cheese dish

  • Honorable…Bob

    This is Great!

    *NOW* you’re concerned about the executive branch overreach. Taking over private industries, forcing citizens to buy products…no problem.

    It’s good to know that you have some limits somewhere.

    • Cool story, bro.

    • Anonymous

      You’re confusing “laws passed by congress” such as the ACA with “executive branch overreach”. You’re not too bright, are you?

    • rea

      Well, yeah, we think killing people is more serious than making them buy insurance. Too bad you can’t grasp the difference.

      • rea

        I mean, really, just imagine Hon. Bob threatening Iran–“Stop building nukes, or we’ll make you pay for your employees’ contraceptives!!”

        • joe from Lowell

          Back in my Reason days, I used to try, and fail, to convince the libertarians that your money is not the same thing as your body, mind, words, soul, or thoughts.

          They weren’t buying it. Your stuff, they hold, is just as much a part of your personal identity and individual integrity as your beliefs, value, or body.

          • Dave

            At least that makes it easier to kick them in the hubcaps….

    • Hogan

      Taking over private industries

      You’re still mad about this? Get over it already, HoBo.

  • david mizner

    My guess is that he strengthened the legal hand of those who seek to challenge the targeted-killing power on constitutional grounds, because he acknowledged that suspected belligerents (American citizens or not) are entitled to due process. Although he made a mockery of the concept (Colbert: “Due process just means there’s a process that you do), this acknowledgment is a tactical error. To compound it, he relied on Hamdi, which, contrary to his claims, says suspects deserve judicial review.

    • joe from Lowell

      Hamdi dealt with suspects in custody, not at large.

      Obviously, under both American and international law, there is a big difference between the substantive and procedural rights of an enemy combatant who is active at at large, compared to one who is in custody.

      • Anonymous

        then why was it used at all?

        • joe from Lowell

          I could have phrased that more clearly.

          The Hamdi decision’s requirement for a judicial procedure dealt with suspects in custody, not at large. The decision stated that due process applied, but it only laid out a specific standard of due process for cases of suspects in custody. It did not apply that standard to people still at large and fighting, even though it said there was a process, some process, due to them as well.

      • david mizner

        That’s true, but it was Holder who chose to cite it.

        In any case, the broader point is — and someone correct me if I’m wrong — Holder has acknowledged that people like al-Alwaki is entitled to due process, shifting the debate from whether suspect like him deserve due process to what due process entails.

        • joe from Lowell

          You’re right on both points. I should have been more clear in my comment – I tried to clear it up above.

          And yes, the discussion is about what the correct process for identifying someone as a military target, in the context of a war, when that person is an American citizen, should be.

          • david mizner

            Right, but it shouldn’t make any difference whether al-Alwaki is an American citizen. The Bill of Rights doesn’t distinguish.

            • joe from Lowell

              I go back on forth on that. Part of me says that there is something similar to the old “aristocratic immunity” that rebellious lords used to enjoy in medieval Japan (“None of you peasants better harm a hair on the aristocrat’s head!”) I also go back to the fact that American citizens who fight for the other side in a war have always been treated exactly the same as the foreign soldiers on their left and right.

              On the other hand, though, Farley and Lemieux seem to take it as a given that of course our government should treat Americans differently, and certainly this is the case for those in custody (we tried and convicted John Walker Lindh in federal court, after capturing him).

              • Scott Lemieux

                Lemieux seem to take it as a given that of course our government should treat Americans differently

                I, in fact, do not, and I’m not sure how you get that from anything I’ve written.

                • joe from Lowell

                  What you’ve written:

                  If the executive branch can’t demonstrate evidence that there is an “imminent threat” to some sort of independent body, there’s no reason to believe that those being targeted for killing in fact pose imminent threats, and the potential for abusing the gravest power the executive branch possesses remains. Without meaningful oversight, these standards are only as good as the administration applying them. And that’s just not nearly good enough.

                  Did you actually make this statement – that it is “not nearly good enough” for the executive to order a strike on a military target that it deems to pose a threat, in a war – and mean to apply it to foreign persons fighting that war, too?

                  Because that’s a little nuts. It’s a reasonable thing to write if you’re talking about American citizens, but to write it as applying to, say, people in an opposing army would be absurd.

                • Scott Lemieux

                  As I say above, the “war” against Al Qaeda is not a traditional battlefield. It requires legal standards more restrictive that the arbitrary action that is acceptable during traditional wars, but less restrictive than traditional police powers.

                  I have never written, and don’t believe, that al-Alwaki deserves a uniquely heightened form of protection because he is an American citizen, although Rob has made that argument.

                • joe from Lowell

                  Thanks for the clarification. So you don’t distinguish the legality of the Awlaki strike, and the legal justification behind it, from that of the strike carried out against a car load of non-American al Qaeda in November 2002?

                  I’m with you. I think they are indistinguishable cases, and the nationality of the al Qaeda members isn’t relevant.

        • david mizner

          When I say “correct me if I’m wrong,” I’m referring to the administration’s acknowledgement that al-Alwaki (and by extension, all those suspected militants in Pakistan, Somalia, etc) are entitled to due process. Perhaps that’s not a new acknowledgment, but I think it is. It’s my impression that till now President Obama and Bush before him contended that AQ fighters in the battlefield weren’t entitled to constitutional protections.

        • rea

          shifting the debate from whether suspect like him deserve due process to what due process entails.

          Everyone is always entitled to due process, and the debate is always about what due process entails.

          • joe from Lowell

            I’m not sure about that.

            I don’t recall a whole lot of discussion about due process for foreign combatants. I suppose we could say that the decision by a military person, even a private, that such a foreign fighter is actually a “bad guy” is the due process to which he’s entitled, but I don’t recall seeing it phrased that way in any legal proceedings.

    • rea

      Due process just means there’s a process that you do

      You mean, that isn’t what it means?

  • Paulk

    I’ve been trying to understand this explanation in relation to previous policy, so I’d be curious to see what Scott (and others) think about this kind of explanation relative to, say, the unitary executive model.

    While I agree that other administrations can make different policy decisions, that would be true regardless of what Obama argues here—or even if he adopted an entirely different policy. The problem he’s dealing with here is real, and I think most everyone understands that the presidents possess far more practical power—and face much more complicated situations—than the policies and theories allow.

    My biggest concern is that while the decision to target these figures appears to contain a number of important and seemingly fairly narrow conditions, the rationale and authority for not including the judiciary is entirely based upon the AUMF.

    It seems to me that this is an attempt to walk a very thin line, to constrain the (perhaps necessary) use of power within a legal framework. But it really seems like it fails. It’s a statement of the natural legal limits of executive power, which makes it very different from the theories of Yoo (especially in terms of where this authority comes from to act in this way). But it still assumes these powers exclusively to itself.

    • Dave

      It is what it is: part of the US Govt’s ongoing mission to justify to itself, and to anyone stupid enough to listen, why it has the right to openly and blatantly do what other govt’s have had the vestigial decency to only do in covert and deniable ways before.

    • joe from Lowell

      When have war powers granted by Congress ever not been assumed by the executive, to the exclusion of the judicial branch?

  • Jesse Levine

    So, Joe from Lowell, the legal rationale as you see it is that we’re at war and the executive gets to pick the targets. Period. End of story. Not unreasonable if you believe the Presidential oath of office really means defend the country’s security and doesn’t mean defend the Constitution. But in that case why bother with the pretense of due process?

    • joe from Lowell

      One of my internet favorites: the decorative invocation of the Constitution.

      Like crepe paper used to dress up a shabby legion hall.

  • Alan in SF

    Is it just me, or has the meaning of “Al Qaeda” radically changed since the AUMF was passed, without anyone taking notice. Used to be “Al Qaeda” Now it’s “anyone who calls themselves Al Qaeda”

  • Alan in SF

    It seems almost trivial at this point to mention that under the Nobel peace laureate’s definition of war, the United States will be in a permanent state of war, with the entire globe as the battlefield, forever. We are officially a militarized state. We are even, in a sense, a military dictatorship, in that both parties support the permanent war and the state of emergency that comes with it, and the military will always be fed, while the rest of civil society withers and dies. Everyone’s okay with this?

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